ECC International LLC
Docket: ASBCA 61176, ASBCA 62029
Decision date: 2021-03-22

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeals of -- ) 
 ) 
ECC International LLC ) 
 ) 
) 
) 
 
APPEARANCES FOR THE APPELLANT: R. Dale Holmes, Esq.  
  Cohen Seglias Pallas Greenhall & 
    Furman PC 
  Philadelphia, PA 
 
Michael A. Richard, Esq. 
  Obermayer Rebmann Maxwell &  
    Hippel LLP 
  Philadelphia, PA 
  
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
  Engineer Chief Trial Attorney 
Paul B. Taylor, Esq. 
Paul L. Huhtanen, Esq. 
  Engineer Trial Attorneys 
  U.S. Army Engineer District, Far East 
  Seoul, Korea 
   
OPINION BY ADMINISTRATIVE JUDGE STINSON 
 
 These consolidated appeals by ECC International, LLC (ECCI), challenge two 
contracting officer’s final decisions.  The first, dated February 21, 2017, denied 
ECCI’s June 22, 2016, claim, seeking $961,533, in alleged costs for the government’s 
failure to provide a Cleared American Guard (CAG) and a Construction Security 
Technician (CST) during the project (ASBCA No. 61176 (61176) R4, tabs 1, 16).1  
The second, dated March 13, 2019, denied ECCI’s November 28, 2018, claim, seeking 
$388,495, for an alleged change in Site Security Monitoring Services (SSMS) 
                                              
1 “61176 R4, tab___,” refers to the government’s appeal file (Board Rule 4) submitted 
in ASBCA No. 61176.  “62029 R4, tab ___,” refers to the government’s appeal 
file submitted in ASBCA No. 62029.  “Gov’t supp. R4, tab ___,” refers to the 
government’s supplemental appeal file submitted in these consolidated appeals.  
“App. supp. R4, tab ___,” refers to appellant’s supplemental appeal file 
submitted in these consolidated appeals.   
ASBCA Nos.    61176, 62029 
Under Contract No.  W912UM-12-C-0058 

2 
 
performed in certain areas of the project site (ASBCA No. 62029 (62029) R4, tabs 1, 
18).  The parties agreed to submit these appeal for a decision on the record without a 
hearing pursuant to Board Rule 11.  Each party submitted initial and responsive briefs.  
We have jurisdiction pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. 
§§ 7101-7109.  For the reasons stated below, we deny both appeals.  
 
FINDINGS OF FACT 
 
 1.  On November 15, 2011, the United States Army Corps of Engineers 
(USACE), Far East District (FED), issued Solicitation No. W912UM-12-R-0002 (the 
Solicitation) requesting proposals for the construction of a two-story Brigade 
Headquarters (HQ) administrative building for the 501st Military Intelligence Brigade, 
United States Army Garrison (USAG) Humphreys, in Pyongtaek, South Korea (61176 
R4, tab 4 at 2, 4).  The building included a controlled access area (CAA) or Sensitive 
Compartmented Information Facility (SCIF) comprising approximately 25 percent of 
the structure -10,000 square feet out of 39,629 square feet (61176 R4, tab 4 at 2).   
 
Solicitation Amendment No. 2 
 
 2.  On February 22, 2012, the government issued Solicitation Amendment 
No. 0002 (61176 R4, tab 6 at 1).  Amendment No. 0002 added language to 
Specification Section 01 22 00, “PAYMENT,” specifically Contract Line Item 
Number (CLIN) 0006, “Site Security Monitoring Service (SSMS)” (61176 R4, tab 3 
at 111-12, tab 6 at 2-3).
2  CLIN 0006 provides, in part: 
 
Site Security Monitoring Service will be paid for at the 
contract price.  The contractor is responsible for hiring a 
security monitoring subcontractor to provide Site Security 
Monitoring Services (SSMS).  The Site Security 
Monitoring Services (SSMS) Subcontractor shall furnish 
all personnel, tools, protective equipment and supplies to 
provide SSMS in accordance with rules, laws, regulations 
and security requirements as stated in the RFP documents.  
 
(61176 R4, tab 3 at 112, tab 6 at 21) 
 
                                              
2 The copy of the specification set forth at 61176 R4, tab 3, incorporates specification 
language added by Amendment No. 0002.  For context, we cite both 
documents. 

3 
 
 3.  Amendment No. 0002 also added the following provision:  
 
j.  Site Security Personnel:  Provide cost breakdown by 
months to correspond to your schedule in accordance with 
Section 00120 Evaluation Factors for Award, FACTOR 5:  
PROJECT SCHEDULE (page 23 of 133): 
 
Cost breakdown will include man hours and labor costs 
including wages, labor burden, subsistence, lodging and 
other labor related costs.  Breakdown shall include the 
following personnel: 
 
 (1) Construction Surveillance Technicians (CSTs) 
 (2) Cleared American Guards (CAGs) 
 (3) Escorts 
 (4) Other security Labor 
 
(Updated, 17 Feb 12) 
 
(61176 R4, tab 6 at 5) 
 
 4.  Amendment No. 0002 inserted into Specification Section 01 31 00, 
“CONSTRUCTION EXECUTION AND COORDINATION,” the following 
provisions: 
 
3.2 GOVERNMENT FURNISHED ITEMS 
 
 A.  The USG may provide equipment or material 
for either USG installation or contractor installation, 
designated as GFGI or GFCI, respectively.  In all cases, 
coordinate with the USG and plan to accommodate these 
items during the receiving, transporting, secure shipment 
and storage, material handling, and integration of the 
installation of same into the general works.  Support 
infrastructure for government-furnished items.  As an 
example, if the USG is to provide and install an alarm 
system, the contractor is to provide and install conduits, 
raceways, cables, terminal boxes, and source power. 
 
3.3 GOVERNMENT FURNISHED SITE SECURITY 
MONITORING 
 

4 
 
 A.  The Government shall provide one (1) Cleared 
American Guard and one (1) Construction Surveillance 
Technician for the duration of the construction activities.  
The Government staff will be responsible for reviewing the 
scheduled construction activities and coordinating site 
security monitoring with contractor and contractor security 
staff.  The normal working hours for US Government CAG 
and CST will be available 6 days per week, 10 hours per 
day, from Monday through Saturday. 
 
3.4 CONTRACTOR FURNISHED SITE SECURITY 
MONITORING SERVICE 
 
 A.  The contractor is responsible for hiring a 
security monitoring subcontractor to provide Site Security 
Monitoring Services (SSMS).  The Site Security 
Monitoring Service (SSMS) Subcontractor shall furnish all 
personnel, tools, protective equipment and supplies to 
provide SSMS in accordance with rules, laws, regulations 
and security requirements as stated in the RFP documents.  
The contractor is responsible to ensure that SSMS is 
provided in accordance with (IAW) the Intelligence 
Community Standard (ICS) Number 705.l.
3  The primary 
responsibility of the contractor is to provide Site Security 
Monitoring Personnel (SSMP) to detect unauthorized 
access to controlled areas, to deter construction worker 
activities, preventing the implantation of clandestine 
surveillance devices or systems into structures being 
constructed or its immediate surroundings.  The SSMP at a 
minimum shall include:  CSTs, CAGs, LNGs4 and Escorts.  
As stated in other Division I sections of the RFP 
documents, the controlled areas include Construction Site, 
SSA, and SCIF.  The contractor is responsible to ensure 
sufficient CST coverage is maintained in accordance with 
Attachment A, Labor Security Synchronization Matrix.  
Control to the site is conducted by Cleared American 
Guards and Local Nationals Guards through the Access 
                                              
3 The correct nomenclature for this document is 705-1, which we reference herein 
(62029 R4, tab 18 at 186). 
4 Solicitation Amendment No. 0003 revised paragraph 3.4, deleting the requirements 
of providing Local National Guards (LNG), and requiring a computerized 
inventory system (61176 R4, tab 7 at 87).  

5 
 
Control Facility (ACF).  The ACF requires monitoring by 
the SSMP; 24 hours per day, 7-days a week.  The SSMP 
shall assist the US Government Security staff with random 
selection of materials required for SCIF construction as 
well as other areas deemed necessary by the USG. 
 
(61176 R4, tab 3 at 117-18, tab 6 at 23-24) (strikethrough text in the original) 
 
 5.  Intelligence Community Standard Number 705-1 (ICS 705-1), referenced in 
Specification Section 01 31 00, paragraph 3.4 above, states, in part: 
 
This Intelligence Community Standard sets forth the 
physical and technical security standards that apply to all 
sensitive compartmented information facilities (SCIF), 
including existing and new construction, and renovation of 
SCIFs for reciprocal use by all Intelligence Community 
(IC) elements and to enable information sharing to the 
greatest extent possible. 
 
(62029 R4, tab 18 at 186) 
 
 6.  ICS 705-1 states also: 
 
For each SCIF construction project, a Construction 
Security Plan (CSP) shall be developed to address the 
application of security to the SCIF planning, design, and 
construction efforts.  The specific format and content of 
the CSP may be developed by the [Accrediting Official] 
AO based upon the extent of the SCIF construction and 
security concerns related to the SCIF. 
  
(62029 R4, tab 18 at 62, 188) 
 
 7.  ICS 705-1 likewise provides: 
 
Construction and design of SCIFs shall be performed by 
U.S. companies using U.S. persons (an individual who has 
been lawfully admitted for permanent residence as defined  
  

6 
 
in 8 U.S.C. 1101(a)(20) or who is a protected individual as 
defined by 8 U.S.C. 1324b(a)(3)).   
    
(62029 R4, tab 18 at 188) 
 
 8.  With regard to the roles and responsibilities of the SSMP, Amendment 
No. 0002 provides: 
 
3.5.1 Construction Surveillance Technicians (CSTs). 
 
3.5.1.1 The CSTs shall monitor, observe, and interact with 
the construction workers as they accomplish their various 
tasks to preclude the introduction of electronic, electrical, 
mechanical, or hostile surveillance monitoring devices into 
finished construction. 
 
3.5.1.2 The CSTs shall be responsible for screening all 
equipment, materials, and furnishings destined for use in 
the controlled construction area using X-ray machine or 
other methods of examining deemed appropriate by the 
government such as visual, hand held wand, and other 
surveillance equipment. 
 
 . . . . 
 
3.5.1.7 CSTs will assist local national construction 
contractor with the random purchases of non-inspectable 
equipment and material items on an as required basis.  
Assistance will include visiting local suppliers to ensure 
equipment and material items are suitable for construction 
and also implementing a random procurement selection 
process. 
 
3.5.2 Cleared America Guards (CAGs) 
 
3.5.2.1 The CAGs must be U.S. Citizens and possess a 
U.S. Secret clearance. 
 

7 
 
3.5.2.2 The CAGS will supervise and augment the Local 
National Guard force to5 perform access control functions 
at all vehicle and pedestrian entrances to the site on a 24/7 
basis throughout the construction period.  These activities 
include: 
 
• Screening all non-cleared workers, vehicles, and 
equipment entering or exiting the site. 
 
• Denying introduction of prohibited materials such as 
explosives, weapons, electronic devices, or other items as 
specified by the Accrediting Official (AO) or designee. 
 
• Conducting random inspections of site areas to ensure no 
prohibited materials have been brought on to site.  All 
suspicious materials or incidents shall be brought to the 
attention of the SSM or CST. 
 
• Supervising non-cleared or non-US Guards. 
 
3.5.2.3 The CAGs shall establish, maintain, and operate a 
Secure Storage Area (SSA) on the site or at an approved 
location outside the construction site boundary that will 
store construction materials and equipment that will be 
used in the SCIF in accordance with paragraph 4.G of IC 
Tech Spec for ICD/ICS 705. 
 
 . . . . 
 
3.5.4.2 The Escorts will assist the CSTs to monitor, 
observe and interact with the construction workers as they 
accomplish various tasks to prevent the introduction of 
electronic, electrical, mechanical, or hostile surveillance 
monitoring devices into finished construction work 
performed by the construction contractor. 
 
(61176 R4, tab 3 at 118-20, tab 6 at 24-26) (strikethrough in original) 
 
                                              
5 Solicitation Amendment No. 0003 revised paragraph 3.5.2.2, deleting the 
requirement that CAGs “supervise and augment the Local National Guard 
Force” (61176 R4, tab 7 at 88). 

8 
 
 9.  In a memorandum dated March 14, 2018, John Fern, Program Manager for 
ECCI, discussed Amendment No. 0002, stating, in part: 
 
Amendment 0002, dated 22 February 2012 added the 
requirement for construction contractors to provide SSMS 
to ensure the CAA would achieve accreditation.  This is 
atypical in that SSMS are usually provided by the US 
Government for similar secure construction contracts, to 
provide the US Government the control and flexibility 
required to implement these services.  As part of this 
Amendment, USACE added the provisions for the US 
Government to provide a CST and CAG, and for the 
Construction Contractor to provide the balance of CSTs, 
CAGs, and escorts required to provide adequate SSMS for 
the project.  Following receipt of Amendment No. 0002, 
ECCI confirmed that our Cleared American Subcontractor, 
CACI Integrated Security Solutions (CACI-ISS), who was 
also providing low voltage electrical and 
telecommunications support to the team was qualified to 
meet the requirements and provide the necessary SSMS 
personnel to support the 501st MI BDE HQ Contract. 
 
(62029 R4, tab 51 at 2) 
 
Solicitation Amendment No. 0003 
 
 10.  On March 7, 2012, the government issued Solicitation Amendment 
No. 0003, adding Specification 010041, “CONSTRUCTION SECURITY” (61176 R4, 
tab 7 at 16).  Paragraph 1.01, “SUMMARY,” states, in part, “[t]his section and its 
attachments provide explanation to the contractor to carry out construction 
requirements in accordance with Director National Intelligence Community Directive 
705.1 (ICD 705.1) ‘Physical and Technical Security Standards for Sensitive 
Compartmented Information Facilities (SCIF), September 17, 2010’” (61176 R4, tab 7 
at 17; 62029 R4, tab 18 at 186-94).
6  The government issued “Technical Specifications 
for Construction and Management of Sensitive Compartmented Information Facilities, 
                                              
6 The reference in Specification No. 010041 to the document entitled “Director 
National Intelligence Community Directive 705.1 (ICD 705.1) ‘Physical and 
Technical Security Standards for Sensitive Compartmented Information 
Facilities (SCIF), September 17, 2010’” (61176 R4, tab 7 at 17), appears to be a 
reference to “Intelligence Community Standard Number 705-1, ‘Physical and 
Technical Security Standards for Sensitive Compartmented Information 
Facilities (SCIF), September 17, 2010’” (62029 R4, tab 18 at 186-94). 

9 
 
Version 1.2,” which “sets forth the physical and technical security specifications and 
best practices for meeting standards of Intelligence Community Standard (ICS) 705-1” 
(62029 R4, tab 18 at 195, 200).  Chapter 4, “SCIFs Outside the U.S. and NOT Under 
Chief of Mission (COM) Authority,” includes paragraph D, “Construction Security 
Requirements” (62029 R4, tab 18 at 219, 223).  Paragraph D.7, “Citizenship and 
Cleared Requirements for SCIF Construction Personnel,” subparagraph (m), states that 
the site security manager (SSM) “may require cleared escorts or CSTs for non-cleared 
workers performing work exterior to the SCIF that may affect SCIF security” (62029 
R4, tab 18 at 225).   
    
 11.  Specification No. 010041, paragraph 1.01, also provides, “[t]hroughout the 
execution of this contract, the contractor and subcontractors shall collaborate and 
coordinate security requirements with the SSM, and COR [contracting officer’s 
representative] to ensure the HQ facility is constructed in a manner to prevent 
technical compromise” (61176 R4, tab 3 at 21, tab 7 at 17).  
  
 12.  Specification No. 010041, paragraph 1.04, “PERFORMANCE 
REQUIREMENTS,” provides, in part: 
 
A. Comply with Government’s requirements for 
participating in the project security procedures as specified 
in this and subsequent contract sections, Office of National 
Intelligence (ODNI) Policy Guidance (Approved Version 
at time of issuance of this contract) and the National 
Industrial Security Program Operating Manual (NISPOM) 
as requested subsequent to issuance of the Notice To 
Proceed (NTP).  Afford unrestricted access to work, allow 
surveillance and inspection by any Government personnel 
as authorized by the SSM.  Perform required security work 
when directed by the COR or SSM.  Maintain security, and 
avoid compromise of classified information and materials 
caused by unauthorized disclosures and access to the work 
and its associated documentation.   
 
(61176 R4, tab 3 at 22, tab 7 at 18) 
 
 13.  Attachment D to Specification No. 010041 is a “Labor Security 
Synchronization Matrix” (Labor Matrix), detailing the CST/laborer ratio for various 
aspects of the construction.  The ratios range from one CST per five laborers (“1:5”) to 

10 
 
a maximum coverage of one CST to ten laborers (“1:10”).  (61176 R4, tab 3 at 45-48, 
tab 7 at 41-44)7 
 
Additional Specification Requirements 
 
 14.  Specification Section 01 22 00, “PAYMENT,” provides, in part: 
 
1.1 PAYMENT ITEMS 
 
Payment items for the work of this contract will be made 
[sic] are listed in the PROPOSAL SCHEDULE and 
described below.  All costs for items of work, which are 
not specifically mentioned to be included in a particular 
lump sum or unit price payment item, shall be included in 
the listed item most closely associated with the work 
involved.  The price and payment made for each item listed 
shall constitute full compensation for furnishing all plant, 
labor, materials, and equipment, and performing any 
associated Contractor quality control, environmental 
protection, meeting safety requirements, tests and reports, 
and for performing all work required for which separate 
payment is not otherwise provided. 
 
(61176 R4, tab 3 at 111) 
 
 15.  Specification Section 01 31 00, “CONSTRUCTION EXECUTION AND 
COORDINATION,” provides, in part: 
 
1.5 ON-SITE STAFF REQUIREMENTS 
 
A. The Contractor shall provide an adequate professional 
administrative and supervisory staff on site in all aspects of 
work.  The key staff shall be fully coordinated and provide 
a professional level of project execution management.  The 
supervisory staff at a minimum shall include the following: 
Project Manager, Superintendent, Security Manager, QC 
Manager, and Safety Health Manager.  The contractor shall 
submit a Project Organization Chart that includes the 
following information: 
                                              
7 This same Labor Matrix is included in Specification Section 01 31 00, 
“CONSTRUCTION EXECUTION AND COORDINATION,” as Attachment A 
(61176 R4, tab 3 at 124-27). 

11 
 
 
 1. Depict principal staff assignments and contact 
information on a project organization chart.  Include key 
administrative and supervisory staff. 
 
 2. Provide resumes of staff. 
 
 3. Depict how management, supervisory, and 
administrative functions will be performed.  Where 
applicable, indicate where multiple tasks will be performed 
by the same individual. 
 
(61176 R4, tab 3 at 115) 
 
Solicitation Questions and Answers 
 
 16.  By letter dated March 26, 2012, Michael Miyagi, Contracting Officer, 
USACE, FED, provided all prospective offerors a copy of questions submitted on the 
Solicitation and the government’s answers (61176 R4, tabs 17-18). 
 
 17.  Question and answer no. 18 provides: 
 
[Question]  Specification 010041 Attachment C and 
Attachment “D” states that the CSTs are Government 
Employees Security and Site Personnel, it states CSTs will 
be provided by the US Government [USG] and will 
observe work at the Project site performed by uncleared 
contractor personnel in SCIF, and other areas as directed 
by the SSM and that the CST will have a minimum 
security level.  How many CSTs will the Government 
provide and have on-site? 
 
[Answer]  In accordance with Section 01 31 00, per 
amendment 2, the Government will provide 1 CAG and 
CST. The contractor is to provide additional CAGs and 
CSTs to meet the requirements of Site Security Monitoring 
Services (SSMS). 
 
(61176 R4, tab 17 at 7) 
 

12 
 
 18.  Question and answer no. 35.b provides: 
 
[Question]  As this project involves SCIF and Temporary 
Security Facility, are these still considered “classified 
areas”? 
 
[Answer]  It states that within the SCIF area construction is 
to be performed by “US Cleared” Labor as shown on the 
Labor Synchronization Matrix.  The SCIF is a Classified 
Area and the Temporary Security Facility is not a 
Classified Area.  The contractor is to follow the Labor 
Synchronization Matrix for Brigade HQ SCIF Area work 
and Non-SCIF Brigade HQ construction work. 
 
(61176 R4, tab 17 at 12) 
 
 19.  Question and answer no. 40.c provides: 
 
[Question]  We understand that CSTE conduit, cable, 
equipment installation and termination, and the 
maintenance must be performed by a U.S. Secret Cleared 
Contractor.  Please advise if – under the supervision of the 
CST – ROK labor or ROK subcontractors are allowed to 
perform other works for temporary security facilities, such 
as chain link fence for the SSA and project site perimeter 
and Site Security Manager Office. 
 
[Answer]  Please follow Specification Section 010052 for 
temporary security requirements.  This work in general 
does not require CST oversight as stated in the Division 1 
Construction Security Specifications.  Please follow the 
Labor Synchronization Matrix as it shows ROK Labor and 
US Cleared Labor responsibilities.  The laborers must be 
vetted IAW the DD FM 254 and Division 1 Construction 
Security Specifications. 
 
(61176 R4, tab 17 at 14)
8 
 
                                              
8 “Division 1” is a reference to specifications starting with “01” (61176 R4, tab 1 
at 34). 

13 
 
ECCI’s Technical Proposal 
 
 20.  On March 29, 2012, appellant submitted its “Step Two” technical and price 
proposals (61176 R4, tabs 19-20).  In its cover letter, ECCI states, in part: 
 
Led by ECC, a US Prime Contractor with more than 26 
years of experience managing and executing in excess of 
$3.2 Billion in US Federal Government construction, the 
ECC Team brings a wealth of global expertise to this 
project.  ECC has worked in Korea since 1999, developing 
strong relationships with local subcontractors and 
suppliers.  For this project, we have teamed with two 
Korean construction firms, Daelim and Krima, experienced 
with building DOD facilities in Korea.  We have also 
teamed with CACI, a secure constructor and operator of 
SCIFs in Korea for the US Army.  Our team is very 
familiar with the unique intelligence and operational 
requirements at USAG Humphreys, including secure and 
non-secure construction.  The ECC Team brings to 
USACE FED the expertise gained from Korea’s most 
experienced construction companies and two leading 
secure facility construction providers. 
 
(61176 R4, tab 20 at 1) 
 
 21.  ECCI identified CACI-ISS, Inc. (CACI) as its SSMS subcontractor for 
construction, stating, in part:  
 
CACI personnel are highly experienced with installing 
ESS [electronic Security System] systems and their 
accompanying infrastructure and Information systems 
(C4I) [command, control, communications, computers, and 
intelligence] in accordance with Intelligence Community 
Technical Specification (IC Tech Spec-for ICD/ICS 705) 
and Director of Central Intelligence Directives (DCID) 6/9 
requirements and accreditation standards. 
 
For this project, CACI will be responsible for all special 
electrical fit-up as well as configuring, installing, and 
testing the Intrusion Detection System (IDS) and Access  
  

14 
 
Control System (ACS).  CACI will also provide the Site 
Security Monitoring Services (SSMS) for all aspects of the 
construction. 
 
(61176 R4, tab 19 at 8) 
 
 22.  ECCI’s technical proposal included a project “Organization Chart.”  The 
color-coded legend identifies the following organizational components:  “ECC 
Personnel” (blue); “USACE FED Personnel” (red); “Subcontractors” (green), and 
“ECC and Team Subcontractor Personnel” (blue/green).  The chart identifies three 
government positions in red:  Site Security Manager (SSM) Michael Lessard; a CST; 
and a CAG.  In a separate box, entitled “Site Security Monitoring Services,” placed 
below the government positions, were Contractor Security Manager Paul Viall, CSTs, 
CAGs, and Cleared American Escorts (CAEs), all identified as blue/green for ECCI 
and Team Subcontractor Personnel.  The line of reporting, as specified in the legend 
key, provided that Mr. Viall reported to Mr. Lessard and Corporate Security Manager 
Rick Davis.  The chart did not specify anyone to whom Mr. Lessard reported (61176 
R4, tab 19 at 9).   
 
 23.  The Organization Chart identifies five individuals as “Key Personnel.”  In 
addition to Mr. Viall, ECCI designates the following as key:  Project Manager 
Tom Maher, Project Superintendent Chris Miller, CQC [Contractor Quality Control] 
System Manager Freddie McClane, and Site Safety and Health Officer, Todd Savko.  
(61176 R4, tab 19 at 9)  Although the chart identifies Mr. Viall as “ECC Personnel,” 
the technical proposal states: 
 
This key personnel team will be supplemented by our 
Contractor Security Manager, Paul Viall, who is an 
employee of our teaming partner CACI.  The remainder of 
the SSMS, including Construction Surveillance 
Technicians, Cleared American Guards, and Cleared 
American Escorts will also be provided by CACI. 
 
(61176 R4, tab 19 at 10)  
 
 24.  The technical proposal includes a chart entitled “Project Supervision and 
Communication Methods Executed in All Phases,” which, as to Mr. Viall’s role as 
Construction Security Manager (CSM), states, “Supervises:  Cleared Technicians, 
Guards, and Escorts” and “Interacts with:  FED site Security Mgr.”  Mr. Viall’s 
responsibilities were identified as: 
 
• Weekly status and schedule reviews 
• Monitors daily work 

15 
 
• Weekly and status meetings with Government Site 
Security Mgr to update CSPs and security protocols 
• Daily SSA, ACF, and SCIF access log reviews. 
 
(61176 R4, tab 19 at 19) 
 
 25.  With regard to Mr. Viall, the technical proposal also states: 
 
Paul Viall will serve as ECC’s Contractor Security 
Manager and Point of Contact for all access issues at the 
project site.  Mr. Viall will maintain a current list of 
personnel on site, track all badges, and immediately report 
any changes or lost badges to USAG Humphreys.  This list 
will be updated and emailed or hand-carried weekly to 
USAG Humphreys, and if new personnel are added to the 
list, it will be updated prior to their entry onto the facility.   
 
Mr. Viall will work directly and closely with the US 
Government’s Site Security Manager to ensure site 
security is not compromised in any way.  He will assign 
Construction Surveillance Technicians, Cleared American 
Guards, and Cleared American Escorts to the project, and 
ensure security first and delivery of the project second. 
 
(61176 R4, tab 19 at 23) 
 
 26.  ECCI’s technical proposal included no discussion of SSMS work that 
ECCI anticipated the government SSM, CST, and CAG, would perform on ECCI’s 
behalf or how such work might be ordered by ECCI, or coordinated and scheduled 
with the government (61176 R4, tab 19).  The only reference in the technical proposal 
to the government CST and CAG is their mention in ECCI’s Organization Chart 
(61176 R4, tab 19 at 9).  With regard to the government SSM, in addition to the chart, 
the technical proposal includes the following general statement: 
 
ECC will collaborate and coordinate security requirements 
with the US Government’s Site Security Manager (SSM), 
and Contracting Officer’s Representative (COR) to ensure 
the 501st MI BDE HQ Complex is constructed in a manner 
to prevent any technical compromise.  The requirements 
involve interfacing with a number of security-related US  
  

16 
 
Government entities, always coordinated with the USACE 
FED, Resident Engineer/COR and SSM.   
 
(61176 R4, tab 19 at 14)   
 
ECCI’s Price Proposal 
 
 27.  ECCI proposed a total contract price of $35,467,113, which included a 
stated cost of $345,683, for SSMS, CLIN 0006 (61176 R4, tab 20 at 10-11).  
Appellant’s price proposal also included a separate entry for SSMS labor of 
$3,518,880.26, and a firm fixed price breakdown of hours and costs for the positions 
of CAG, CST, CAE, and SSM (61176 R4, tab 20 at 12).  The excerpt of ECCI’s 
original price proposal contained in the record evidences no discussion of the 
government CST or CAG, or how such government personnel might be utilized by 
ECCI in performing SSMS, nor does it indicate that ECCI reduced its SSMS price in 
reliance upon the government’s statement that it would provide a CST or CAG 
pursuant to Specification Section 01 31 00, paragraph 3.3 (61176 R4, tab 20). 
 
 28.  In his declaration dated December 26, 2019, Mr. Fern states, in part: 
 
In reliance upon the terms of the RFP and the clarifying 
Q&A published by USACE, ECCI submitted its proposal 
in response to the RFP on March 29, 2012.  This proposal 
reflected my interpretation of the RFP that ECCI could and 
would use the Government CAG and CST to perform some 
of the site security monitoring services, and the bid cost for 
such work was thereby reduced accordingly. 
 
 . . . . 
 
In its technical proposal, ECCI made it clear that its Site 
Security staffing plan required by the RFP intended to 
utilize the CAG and CST personnel provided by the 
Government as part of the on-site resources to review the 
scheduled construction activities, coordinate site security 
monitoring, and assist ECCI with Site Security Monitoring 
Services for the duration of the Contract.  This staffing 
plan was prepared consistent with my understanding of the 
RFP that the Government’s CAG and CST were available 
to ECCI to assist in performing the SSMS work. 
 
(App. supp. R4, tab 1 at 9-10) 
 

17 
 
 29.  In his March 14, 2018, memorandum, Mr. Fern states: 
 
While preparing ECCI’s Technical and Price Proposal, I 
have a specific recollection of discussing with ECCI’s bid 
team the Amendment 0002 specification requirements 
related to the US Government provided CST and CAG, 
and that those two individuals could and, given the 
language of the Request for Proposal, that these individuals 
would be available to support the project and therefore 
reduce the total amount of additional CSTs and CAGs that 
the ECCI team would have to include in our bid to meet 
the SSMS requirements of the Request for Proposal (RFP). 
 
(62029 R4, tab 51 at 2) 
 
 30.  Appellant states in its interrogatory response, under the signature of 
Mr. Fern: 
 
If the RFP states to all offerors that the Government will 
provide one CAG and one CST, and with the function of a 
CAG and CST being well known to experienced secure 
construction contractors, then a prudent bidder in a 
competitive situation would have no choice but to remove 
one CAG and one CST from their pricing. 
 
 . . . . 
 
Given the limited time period offerors were provided to 
prepare proposals, a trend log of detailed changes that were 
made prior to submission of our original bid were not 
documented for the record.  However, ECCI also made 
significant adjustments to the SSMS costs between our 
original proposal submission and our revised proposal 
submission following discussions . . . . 
 
 . . . . 
 
Considering the significant reductions in the proposed 
CAG costs, and the uncertainty associated with the 501st 
project being the first secure project at USAG Humphreys 
the reductions in SSMS costs in ECCI’s revised proposal 
more than accounted for the assumption that the 

18 
 
Government would be providing 1 CAG and 1 CST to 
support the SSMS for the 501st project. 
 
(Gov’t supp. R4, tab 11 at 2-5) 
 
Government Evaluation Board Recommendation 
 
 31.  On April 4, 2012, the Government’s evaluation board recommended that 
ECCI be found Technically Acceptable based upon its March 29, 2012 “Step 2” 
Proposal (61176 R4, tab 21).  By letter dated April 4, 2012, Mr. Miyagi informed 
ECCI: 
 
In reviewing your price proposal, I have noted that your 
unit price proposed for Contract Line Item (CLIN) 0006, 
Site Security Monitoring Service (SSMS) does not 
correspond to the supporting cost breakdown you provided 
for this CLIN.  Your proposed price for CLIN 0006 is in 
the amount of $345,683.00 whereas the total costs in the 
supporting documentation amounts to $3,518,880.26 (see 
attached).  Please verify whether your proposed price for 
CLIN 0006 of $345,683.00 is the price that you intended. 
 
It is important for you to understand that I am only seeking 
verification of your proposed price.  You should not 
construe this letter as the opening of “discussions,” or an 
opportunity to revise your price proposal.  Your response 
to me should be limited to:  1) your statement that you find 
no errors in your proposed price, or 2) a statement that you 
have discovered an error.  If you discovered an error, 
please advise me of the nature of the error and I will give 
you further guidance on how to proceed. 
 
(61176 R4, tab 23) (emphasis in original) 
 
 32.  By letter dated April 5, 2012, Mr. Fern responded to Mr. Miyagi’s April 4, 
2012, letter, stating, in part: 
 
In response to your letter dated April 4, 2012, we have 
evaluated our cost estimate as requested and have verified 
our price.  Our estimate includes all of the costs required to 
construct the facility in accordance with the RFP.   
However, based on the RFP and amendments, we 
understood that only the management of the Site Security 

19 
 
Monitoring Services (SSMS) was to have been included 
under CLIN 0006.  The remaining costs that we included 
in the detailed backup was included under the specific 
CLIN the surveillance was related to (i.e., primarily CLINs 
0001 and 0005).  We would be happy to make any 
necessary changes to the bid form if this is required. 
 
(61176 R4, tab 24) 
 
 33.  By letter dated April 6, 2012, Mr. Miyagi informed ECCI that its proposal 
placed it within the competitive range and requested ECCI address the following 
comments: 
 
b. Section 00100 of the solicitation, Provision F52.4203, 
Proposal Data Required, paragraph j., Site Security 
Personnel. You have not provided a cost breakdown by 
months to correspond with your proposed project schedule 
as required in this section of the solicitation.  Your cost 
breakdown shall include man hours and labor costs 
including wages, labor burden, subsistence, lodging and 
other labor related costs. 
 
c. Section 01 22 00, Payment, paragraph 1.5, Item 0006, 
Site security Monitoring Service.  All costs associated with 
the site security monitoring service as identified in this 
section, should be included in CLIN 0006, Site Security 
Monitoring Service.  You have stated in your letter dated 
April 5, 2012, Subject: Step 2 -Technical and Price 
Proposals for FY08 MCA PN 8784, Brigade Headquarters 
Complex, USAG Humphreys, Korea that some costs 
associated with the Site Security Monitoring Service are 
included in other CLINs, specifically, CLINs 0001 and 
0005.  Please make the necessary revision to have all costs 
associated with the Site Security Monitoring Service be 
included in CLIN 0006 in the Price Schedule. 
 
(61176 R4, tab 26 at 1-2) 
 

20 
 
ECCI’s Revised Price Proposal 
 
 34.  By letter dated April 9, 2012, ECCI submitted its revised price proposal.  In 
the cover letter, Mr. Fern responded to Mr. Miyagi’s April 6, 2012, letter, stating, in 
part: 
 
2. Section 00100 of the solicitation, Provision F52.4203, 
Proposal Data Required, paragraph j., Site Security 
Personnel.  Attached is a SSMS cost breakdown by months 
(in PDF) to correspond with our proposed Factor 5 - 
Project Schedule included our Technical Proposal.  We 
have also provided the monthly SSMS hours and costs in 
graphical format as well as our Project Schedule annotated 
with call-outs of the site security personnel requirements 
for easy review.  In addition, we have included the SSMS 
cost breakdown by days to provide further details of our 
estimate. 
 
3. Section 01 22 00, Payment, paragraph 1.4, Item 0006, 
Site Security monitoring Service.  We have ensured that all 
costs associated with the site security monitoring service as 
identified in this section have been included in CLIN 0006, 
Site Security Monitoring Service.  Attached is our revised 
Proposal Schedule (in PDF) for your review. 
 
(61176 R4, tab 27 at 1)   
 
 35.  ECCI’s revised price proposal includes a lump sum price of $3,320,056, for 
CLIN 0006, and a decrease of its total proposed price from $35,467,113, to 
$32,468,604 (61176 R4, tab 20 at 10, tab 27 at 8).  ECCI provided the following 
breakdown for CLIN 0006:  CAG, 29,880 hours at $66.75 per hour for a total of 
$1,994,530.00; CST, 8,210 hours at $77.19 per hour, for a total of $633,710.00; CAE, 
5,050 hours at $66.75 per hour, for a total of $337,094.00; and Security Manager, 
4,040 hours at $87.80 per hour for a total of $354,722.00 (61176 R4, tab 27 at 11).
9 
 
 36.  ECCI’s revised price proposal includes a document entitled “Project 
Schedule in Support of the SSMS Cost Estimate (CLIN 0006)” (61176 R4, tab 27 
                                              
9 We note that for each CLIN item, multiplying the stated hourly rate by the stated 
number of hours renders marginally different total amounts for each, i.e.:  CAG 
- $1,994,490.00, not $1,994,530.00; CST - $633,729.90, not $633,710.00; CAE 
- $337,087.50, not $337,094.00; and Security Manager - $354,712.00, not 
$354,722.00. 

21 
 
at 15).  With regard to CSTs and CAGs, for the period of May 2013, the construction 
schedule states, in part:    
 
CSTs and CAEs will mobilize to support initial site 
construction.  CSTs and CAEs will be adjusted to cover 
work at the site in accordance with RFP. 
 
 . . . .  
 
After temporary structures (ACF/SSA) are completed, 
2 CAGs will be stationed in the ACF Building and 2 CAGs 
at the vehicle access gate during operating hours.  During 
non-operating hours, 1 CAG will be stationed in the ACF 
full time per the RFP. 
 
(61176 R4, tab 27 at 17) 
 
 37.  Appellant’s revised price proposal included no discussion of the 
government CST or CAG, or how such government personnel might be utilized by 
ECCI in performing SSMS, nor does it indicate that ECCI reduced its SSMS price in 
reliance upon the government’s statement that it would provide a CST or CAG 
pursuant to Specification Section 01 31 00, paragraph 3.3 (61176 R4, tab 27). 
 
 38.  When asked during discovery to identify documents that support ECCI’s 
claim that it “reduced the quantity of CAG’s and CST’s by one each in its pricing,” 
Mr. Fern, responded that “a trend log of detailed changes that were made prior to 
submission of our original bid were not documented for the record” (gov’t supp. R4, 
tab 11 at 4; finding 30). 
 
 39.  When asked during discovery to identify documents that support the 
statement in ECCI’s August 14, 2014, letter that in its revised price proposal (as 
opposed to the original price proposal discussed in the paragraph above) “ECCI 
reduced the quantity of CAG’s and CST’s by one each in its pricing,” Mr. Fern 
responded that there was an “overall reduction of $704k from ECCI’s original to 
revised SSMS price,” and that “the reductions in SSMS costs in ECCI’s revised 
proposal more than accounted for the assumption that the Government would be 
providing 1 CAG and 1 CST to support the SSMS for the 501st project” (gov’t supp. 
R4, tab 11 at 3-5, finding 30).  If ECCI’s original price proposal included a reduction 
in price based upon the belief that the solicitation promised the government would 
provide one CAG and CST who would be available to perform contractor work, there 
would be no need for a further decrease in its revised price proposal based upon this 
same assumption.
    
 

22 
 
Governmental Construction Security Monitoring Requirements 
 
 40.  The reason the government included in the RFP the requirement that SSMS 
be performed by a subcontractor to the prime is reflected in correspondence between 
the National Security Agency (NSA) and USACE FED.  By email dated February 14, 
2012, Timothy Besse, NSA Technical Support Program Management Office, informed 
Mr. Lessard: 
 
CST & CAG Concurrence 
 
ADS&CI [Associate Director for Security and 
Counterintelligence] /Field Security (Q14) acknowledges 
that a fixed cost for all aspects of Project 58784 must be 
[submitted] to DoD in March 2012 if this project is to 
survive.  Q14 recognizes that IDIQ contracts for security 
surveillance cannot be in place by this March deadline.  
Consequently, Q14 Branch Chief Joe Hebda concurs in 
principle with your plan to include these security services 
into the construction general contractor’s (GC) fixed price 
contract.  Q14’s concurrence is based upon the following: 
 
The GC will provide via a subcontractor CST and CAG 
services to this project, either as a single subcontract for 
both disciplines, or a separate subcontract for each 
discipline.   You, the SSM, will be the contracting officer 
representative for the CAG & CST contract(s).  You will 
also have a USACE staff CST, and USACE staff CAG 
at your disposal who will monitor the contract CAGs for 
contract adherence. 
 
(61176 R4, tab 35 at 3-4) 
 
 41.  By email dated February 16, 2012, Mr. Miyagi informed Mr. Lessard that 
“NSA concurred in principle with our plan for incorporation into the construction 
contract subject to the condition that the Government provides one CST and one 
CAG” (61176 R4, tab 35 at 1). 
 
 42.  By memorandum dated August 31, 2012, Richard S. Weaver, Chief, Office 
of Physical Security and Antiterrorism/Force Protection, NSA, Central Security 
Service, informed COL Donald E. Degidio, Jr., USACE, FED, that although NSA did 
not concur with the strategy of utilizing a subcontractor to the prime as the security 
contractor, “in the spirit of cooperation we are willing to work with you to ensure 
compliance with our Security mandates and that projects can move forward.”  NSA 

23 
 
granted “a one-time exception to our approach outlined above for the construction of 
the 501st MI Brigade Headquarters and allow for the security contractor to be 
subcontracted to the prime construction contract . . . .”  (61176 R4, tab 36 at 1). 
 
 43.  Briefing slides dated March 25, 2013, prepared to obtain a decision from 
the FED Commander on a course of action for the role of Site Security Management, 
discuss the government CAG and CST (gov’t supp. R4, tab 34b at 1-2).  In his 
declaration, Administrative Contracting Officer Sang-Sung (Steve) Kim states that the 
slide presentation discussed “three options . . . designed to provide different ways of 
providing the Government management of site security monitoring and oversight of 
the Project” and that the government CST and CAG positions mentioned therein “were 
part of the Government management and oversight of the project and were not stated 
or intended to be part of the contractor’s labor crew or otherwise for the use of the 
contractor” (gov’t supp. R4, tab 34a at 2-3). 
 
Contract Award 
 
 44.  On September 17, 2012, the government awarded ECCI Contract 
No. W912UM-12-C-0058 (the Contract), with a total price of $32,468,604, and a price 
of $3,320,056, for CLIN 0006 (61176 R4, tab 2 at 3-5).  The Notice to Proceed letter 
issued that same day (61176 R4, tab 29) established an original Contract Completion 
Date (CCD) of September 7, 2014 (September 17, 2012, plus 720 days) (61176 R4, 
tab 2 at 168, tab 7 at 12). 
 
 45.  The Contract incorporates by full text FAR 52.243-4, CHANGES 
(JUN 2007), which provides, in part 
 
(b) Any other written or oral order (which, as used in this 
paragraph (b), includes direction, instruction, 
interpretation, or determination) from the Contracting 
Officer that causes a change shall be treated as a change 
order under this clause; provided, that the Contractor gives 
the Contracting Officer written notice . . . . 
 
 . . . . 
 
(d) If any change under this clause causes an increase or 
decrease in the Contractor’s cost of, or the time required for, 
the performance of any part of the work under this contract, 
whether or not changed by any such order, the Contracting 
Officer shall make an equitable adjustment and modify the 
contract in writing.  However, except for an adjustment 
based on defective specifications, no adjustment for any 

24 
 
change under paragraph (b) of this clause shall be made for 
any costs incurred more than 20 days before the Contractor 
gives written notice as required. . . .  
 
 . . . . 
 
(e) The Contractor must assert its right to an adjustment 
under this clause within 30 days after (1) receipt of a 
written change order under paragraph (a) of this clause or 
(2) the furnishing of a written notice under paragraph (b) 
of this clause, by submitting to the Contracting Officer a 
written statement describing the general nature and amount 
of the proposal, unless this period is extended by the 
Government.  The statement of proposal for adjustment 
may be included in the notice under paragraph (b) above. 
 
(61176 R4, tab 2 at 108-09) 
 
 46.  The Contract incorporates by full text FAR 52.246-12, INSPECTION OF 
CONSTRUCTION (AUG 1996), which provides, in part: 
 
(c) Government inspections and tests are for the sole 
benefit of the Government . . . . 
 
 . . . . 
 
(d) The presence or absence of a Government inspector 
does not relieve the Contractor from any contract 
requirement, nor is the inspector authorized to change any 
term or condition of the specification without the 
Contracting Officer’s written authorization. 
 
(61176 R4, tab 2 at 120-21) 
 
 47.  The Contract incorporates by full text FAR 52.245-1, GOVERNMENT 
PROPERTY (AUG 2010) ALTERNATE I (AUG 2010), which defines 
government-furnished property and government property as follows: 
 
Government-furnished property includes, but is not limited 
to, spares and property furnished for repair, maintenance, 
overhaul, or modification.  Government-furnished property 
also includes contractor-acquired property if the 
contractor-acquired property is a deliverable under a cost 

25 
 
contract when accepted by the Government for continued 
use under the contract. 
 
Government property means all property owned or leased 
by the Government.  Government property includes both 
Government-furnished and Contractor-acquired property. 
Government property includes material, equipment, special 
tooling, special test equipment, and real property. 
Government property does not include intellectual property 
and software. 
 
(61176 R4, tab 2 at 110-11) 
 
 48.  The Contract also provides: 
  
Only a warranted Contracting Officer (either a Procuring 
Contracting Officer (PCO), or an Administrative 
Contracting Officer (ACO)), acting within their delegated 
limits, has the authority to issue modifications or otherwise 
change the terms and conditions of this contract.  If an 
individual other than the Contracting Officer attempts to 
make changes to the terms and conditions of this contract 
you shall not proceed with the change and shall 
immediately notify the Contracting Officer. 
 
(61176 R4, tab 2 at 4) 
 
 49.  In November 2012, ECCI entered into a Fixed Unit Price subcontract with 
CACI in the amount of $4,255,424, which included $2,808,588, for performing SSMS 
(gov’t supp. R4, tab 16 at 1).  The Statement of Work provides, in part: 
 
CACI-ISS will provide all on-site security services as 
directed by the US Government Site Security Manager 
including: 
 
1. Provide Cleared American Guards (CAGs), 
Construction Surveillance Technicians (CSTs), and 
Cleared American Escorts (CAEs), all with the proper 
security clearance as defined by DCID 6/9 and ICD 705 
for DOD overseas SCIF construction and the project 
specifications. 
 

26 
 
2. Provide security oversight of all aspects of SCIF 
construction as identified in ICS 705-1[.] 
 
3. On a monthly look ahead basis, CACI-ISS will 
coordinate with the Project Superintendent to ensure the 
proper security staffing level is maintained that meets the 
surveillance ratio as required by the US Governments 
Performance Metrics. 
 
4. CACI-ISS will staff the SSMS sufficiently to ensure the 
project schedule is not impacted. 
 
(Gov’t supp. R4, tab 16 at 128)  The subcontract contained no discussion of the 
government CAG or CST, or how such government personnel might be utilized by 
CACI in performing SSMS (gov’t supp. R4, tab 16). 
 
Construction Security Monitoring Plan 
 
 50.  ECCI issued the project’s Construction Security Monitoring Plan (CSMP), 
dated February 19, 2013 (gov’t supp. R4, tab 22 at 2-3).  The CSMP covered several 
subjects, including the Site Security Monitoring Service Standard Operating Procedure 
(SSMS SOP) (gov’t supp. R4, tab 22 at 5, 7).  Section 2 of the CSMP, entitled 
“Personnel,” includes information regarding the Parent Agency, USACE FED, the 
Contracting Officer, the COR, the Government SSM, the CSM), CSTs, and CAGs 
(gov’t supp. R4, tab 22 at 9-11).   
 
 51.  With regard to USACE FED, the CSMP provides that the “Parent Agency 
is responsible for promulgating construction surveillance, construction material, and 
transit security standards” for the project, monitoring compliance with the CSP and 
SOP during the life of the project.  It also provides that the government’s SSM “shall 
have the authority to stop the construction project in the event of a serious security 
incident,” is responsible for the oversight of security incidents, infractions, or 
violations,” and that the contractor CSM shall notify the SSM “in the event of any of 
these situations occurring.”  (Gov’t supp. R4, tab 22 at 9-10)   
 
 52.  The CSMP states that the government “SSM serves as the Security Project 
Manager for FED, is the primary point of contact for compliance and coordination of 
security measures, and accreditation, and is responsible for implementation of the CSP 
and SSP.  The CSMP also provides that “the CSM, CAG, CST, and CAE assist the 
SSM by providing access control intrusion deletion, and, transit security oversight” 
and “[t]he SSM has the authority and responsibility to stop work should security 
issues” so require.  (Gov’t supp. R4, tab 22 at 10) 
 

27 
 
 53.  The CSMP states that the CSM is a senior security representative who 
assists the SSM in CSP compliance, “inspecting perimeter security and access 
control,” and, in the absence of the SSM, may be directed “to act in his/her behalf and 
assume the authority for the management of the CSP.”  It likewise provides that the 
“Labor security synchronization matrix will be utilized as a basis to deploy proper 
manning of SSMS personnel - specifically, the CAGs, CAEs, and CSTs.”  (Gov’t 
supp. R4, tab 22 at 10) 
 
 54.  The CSMP states that CSTs will be provided “by Team ECCI and will 
observe work performed by contractor personnel at 501st BDG HQ Site and the 
immediate Construction Site for that specific building and insect [sic] all materials 
destined for the constructor site.”  The CSMP notes that because “the majority of 
contractor personnel will not have security clearances,” there will be an increase in 
“the need for CST deployment” and “[t]he rationale for CST deployment is based 
upon [the] size (square footage) of the [project] and the type and location of work 
being performed.”  According to the CSMP, the “CAGs will control admittance to and 
departures from the” project construction site.  (Gov’t supp. R4, tab 22 at 10-11)  The 
CSMP includes no discussion of the one government CAG and CST, or how such 
government personnel might be utilized by ECCI in performing SSMS (gov’t supp. 
R4, tab 22). 
 
Site Security Plan 
 
 55.  By email dated May 1, 2013, Mr. Jones provided to Mr. Lessard a copy of 
CACI’s Site Security Plan (SSP) (gov’t supp. R4, tab 21 at 1).  Section 1.3 of the SSP, 
“Responsibility,” provides, in part: 
 
(d) CACI PROVIDED SITE SECURITY SERVICES 
 
CACI and all sub-contractors under the contract for 
providing Site Security Services (SSS), will ensure Site 
Security Personnel (SSP), Project Director, and the 
construction contractors, adhere to, and abide by, the 
Construction Security Plan (CSP) as developed by the Site 
Security Manager and in compliance with the terms of the 
contract[.] 
 
 . . . . 
 
(f) CONTRACTOR SECURITY MANAGER (CSM) 
 
The CSM is the senior security representative for the 
performance of the security contract as outlined in the 

28 
 
performance standards.  The CSM assists the SSM in the 
compliance of the CSP.  The CSM has operational 
responsibilities for the coordination of deliveries, 
screening, and storage of materials for the sensitive 
construction areas as well as normal and unique procedural 
security issues.  The CSM is responsible for the daily 
tracking and recording of the daily events and 
chronological log records and reporting any deficiencies or 
items of interest to the SSM.  The CSM will also aid the 
SSM with inspecting perimeter security and access control 
of the construction area, and the access control program.  
In the absence of the SSM, the CSM may be directed by 
the SSM to act in his/her behalf and assume the authority 
for the management of the CSP. 
 
(Gov’t supp. R4, tab 21 at 6) 
 
 56.  Section 2.3 of the SSP, “CONSTRUCTION SURVEILLANCE 
PERSONNEL SITE SECURITY MANAGER (SSM),” provides, in part: 
 
(a) CONTRACTOR SECURITY MANAGER (CSM) 
 
The CSM assists the SSM in the management and 
compliance with the CSP.  The CSM coordinates the daily 
CAG/CST operations and ensures the SSM is given all 
information to support reporting requirements. 
 
(b) CONSTRUCTION SURVEILLANCE 
TECHNICIANS (CSTs) 
 
The CST will be provided by CACI, Inc. and will observe 
work performed by contractor personnel at 50lst MI BDE 
HQ Site and the immediate Construction Site for that 
specific building and inspect all materials destined for the 
construction site.  The fact that the majority of contractor 
personnel will not have security clearances will greatly 
increase the need for CST deployment.  CST coverage will 
start at the commencement of the building projects general 
construction and end surveillance coverage upon 
determination by the SSM.  The rationale for CST 
deployment is based upon size (square footage) of the 
project and the type and location of work being performed.  

29 
 
The SSM will maintain appropriate CST deployment 
during general construction of the building project effort. 
 
(Gov’t supp. R4, tab 21 at 9)  The SSP includes no discussion of the one government 
CAG or CST, or how such government personnel might be utilized by CACI in 
performing SSMS (gov’t supp. R4, tab 21). 
 
Contract Modifications 
 
 57.  Over the course of Contract performance, the parties entered into several 
modifications increasing the price paid by the government to ECCI pursuant to 
CLIN 0006 for SSMS (61176 R4, tab 32 at 3).  On December 12, 2013, the 
government issued unilateral Modification No. P00002, increasing CLIN 0006 by a 
lump sum of $45,500, as part of a Unilateral Notice to Proceed, Unpriced Change 
Order, to modify the project’s generator sets (61176 R4, tab 13). 
 
 58.  On July 14, 2014, the parties entered into bilateral Modification 
No. P00004, extending the Contract by 250 calendar days, including 200 days of 
compensable delay and 50 days of non-compensable delay.  The modification included 
$1,368,304.47, for costs associated with CLIN 0006 for the 200 days of compensable 
delay.  (61176 R4, tab 14 at 3; 62029 R4, tab 34 at 23-24, tab 49 at 2)  Modification 
No. P00004 includes the following Closing Statement: 
 
This modification formally incorporates into the contract 
the changes contained in, and completes action required by 
Modification No. P00002, issued by the Contracting 
Officer on 12 December 2013, and Modification 
No. A00004, issued by the Administrative Contracting 
Officer on 19 February 2014.   
 
It is further understood and agreed by all parties that this 
adjustment constitutes compensation in full on behalf of 
the contractor and its subcontractors and suppliers for all 
cost and markups attributable to the circumstances giving 
rise to this modification for all delays related thereto, and 
for performance of the change within the timeframe stated.   
 
All other terms and conditions of the contract remain the 
same. 
 
(61176 R4, tab 14 at 3) 
 

30 
 
 59.  On September 5, 2014, the parties entered into bilateral Modification 
No. P00005 to downsize UPS banks, which included $96,101.00, for SSMS costs, 
bringing the total under CLIN 0006 to $4,829,961.47 (61176 R4, tab 15, tab 32 at 3).  
Modification No. P00005 includes the following Closing Statement: 
 
This modification formally incorporates into the contract 
the changes contained in and completes the action required 
by the unpriced Notice to Proceed, Modification 
No. P00003 (NTP), issued by the Contracting Officer, 
dated 14 January 2014, and receipt of which was 
acknowledged by the Contractor on the same date. 
 
It is further understood and agreed by all parties that this 
adjustment constitutes compensation in full on behalf of 
the contractor and its subcontractors and suppliers for all 
cost and markups attributable to the circumstances giving 
rise to this modification for all delays related thereto, and 
for performance of the change within the timeframe stated.   
 
All other terms and conditions of the contract remain the 
same. 
 
(61176 R4, tab 15 at 3) 
 
 60.  On April 14, 2016, the parties entered into bilateral Modification 
No. P00008, implementing changes to the facility’s doors and adding painting of the 
CAA perimeter above the false ceiling.  The modification extended the Contract 441 
calendar days, of which 71 days were compensable and 370 were excused but 
non-compensable delay, i.e., the government waived the assessment of liquidated 
damages for these 370 days.  The modification included $302,323, for costs associated 
with CLIN 0006 for the 71 days of compensable delay.  (62029 R4, tab 16 at 2-3, 
tab 37 at 2)  Modification No. P00008 includes the following Closing Statement 
addressing the adjustment of CCD and the final resolution of time issues contingent 
upon a Completion Schedule to the CCD of August 23, 2016, as follows: 
 
It is further understood and agreed by all parties that this 
adjustment constitutes compensation in full on behalf of 
the contractor and its subcontractors and suppliers for all 
cost and markups attributable to the circumstances giving 
rise to this modification for all delays related thereto, and 
for the performance of the change within the time frame 
stated. 
 

31 
 
The Contractor accepts this modification as full and final 
settlement for any and all time related issues from the date 
of contract award to the date of this modification.  In return 
the Contractor shall submit a new baseline Completion 
Schedule from the date of award of this modification 
through the revised Contract Completion Date of 
23 August 2016.  The new construction schedule shall be 
subject to the Government approval.  The contractor will 
be relieved of the obligation to update or correct prior 
construction schedule submittals under this agreement.  
The new baseline Completion Schedule will be the basis 
for measuring satisfactory progress on the project up to the 
new CCD.   
 
All other terms and conditions of the contract remain the 
same. 
 
(62029 R4, tab 16 at 3) 
 
 61.  On April 14, 2016, the parties entered into bilateral Modification 
No. A00020, adding air grills and perforated floor panels.  The modification increased 
CLIN 0006 by $7,496, for an additional CST (in addition to CST proposed for SSMS 
under the concurrent Modification No. P00008) to monitor the work that will be 
performed in “areas contiguous to the CAA.”  (62029 R4, tab 17 at 1-3)   
 
 62.  Modification No. A0020 contains the following Closing Statement: 
      
It is further understood and agreed by all parties that this 
adjustment constitutes compensation in full on behalf of 
the contractor and its subcontractors and suppliers for all 
cost and markups attributable to the circumstances giving 
rise to this modification for all delays related thereto, and 
for performance of the changes within the time frame 
stated. 
 
(62029 R4, tab 17 at 3-4) 
 
Claim Submission in Appeal No. 61176 
 
 63.  By letter dated August 6, 2014, to Mr. Kim, ECCI, submitted a price 
proposal in the amount of $855,584, seeking compensation pursuant to the Changes 
Clause (FAR 52.243-4), based upon the government’s failure to provide one CAG and 

32 
 
CST, which ECCI believed would be available to perform contractor work (61176 R4, 
tab 33). 
 
 64.  On August 7, 2014, Mr. Kim responded to ECCI’s August 6th letter, 
stating: 
 
The Government does not disagree with your statement 
that contract specification section 01 31 00, Paragraph 
3.3.A state[s] the Government will furnish one (1) Cleared 
American Guard and one (1) Construction Surveillance 
Technician.  This paragraph also states the Government 
staff will be responsible for reviewing the scheduled 
construction activities and coordinating site security 
monitoring with the contractor security staff. 
 
The purpose of these two government personnel would 
have been solely for the benefit of the Government to 
review your construction activities and monitor your Site 
Security Monitoring Services (SSMS) subcontractor 
because of potential conflicts of interest.  The requirement 
for the Government to have these two personnel on site 
was subsequently waived by the National Security Agency.  
It is the Government’s position that the lack of these two 
personnel which were not for the benefit of the contactor 
did not result in any increased cost.  Therefore your 
Request for Equitable Adjustment is denied. 
 
(61176 R4, tab 34)  
 
 65.  By letter dated August 14, 2014, to Mr. Kim, ECCI requested 
reconsideration of the Government’s position, stating, in part: 
 
Bidders develop the number of CAGs and CSTs that are 
necessary to perform the secure work.  If the Government 
states to all bidders that the Government will provide a 
CAG and a CST, and with the function of a CAG and CST 
being well known to experienced secure construction 
contractors, then a prudent bidder in a competitive 
situation has no choice but to remove one CAG and one 
CST from his pricing. 
 
 . . . .  
 

33 
 
In a competitive bidding environment, any reasonable 
offeror experienced in secure construction, knowing what 
functions CAGs and CSTs perform, would reasonably 
construe the Government’s statement to mean that the 
Government would provide (1) CAG and (1) CST, and that 
the Contractor (ECCI) would provide additional CAG’s 
and CST’s as needed to maintain the required ratio’s 
specified in the labor synchronization matrix.  
Subsequently, ECCI reduced the quantity of CAG’s and 
CST’s by one each in its pricing. 
 
(61176 R4, tab 37 at 1) 
 
 66.  By letter dated October 8, 2014, Mr. Kim responded to ECCI’s 
August 14th letter, stating, in part: 
 
The Government does not concur with your position that 
the (1) Cleared American Guard (CAG) and 
(1) Construction Surveillance Technician (CST) were for 
the benefit of the of the [sic] contractor.   
 
It is the Government’s position that the (1) CAG and 
(1) CST were for the Government’s benefit.  Their purpose 
would have been to review the scheduled construction 
activities and coordinate site security monitoring with the 
contractor security staff.   
 
It is the Government’s view that not providing these two 
personnel (1-CAG and 1-CST), which were not for the 
benefit of the contractor, did not result in any increased 
cost to ECCI.  Therefore your Request for Equitable 
Adjustment is denied. 
 
(61176 R4, tab 38) 
 
 67.  By letter dated May 7, 2015, ECCI submitted a Request for Equitable 
Adjustment (REA) No. 1 in the amount of $961,533, for costs allegedly incurred in 
providing additional CAG and CST coverage on the project (61176 R4, tab 39). 
 
 68.  By letter dated June 22, 2016, ECCI submitted to Contracting Officer 
Lisa Billman a claim in the same amount as its May 7th REA, which included the 
requisite CDA certification (61176 R4, tab 16 at 1, 3).  ECCI’s calculated its REA and 
claim amount based upon the daily cost of one additional CAG and CST for every day 

34 
 
ECCI performed SSMS work on the Contract, from May 21, 2013, through June 9, 
2015 (61176 R4, tab 16 at 31). 
 
 69.  On February 21, 2017, Ms. Billman issued a final decision denying ECCI’s 
certified claim (61176 R4, tab 1).  The final decision acknowledged that the Contract 
specified the government would provide one CAG and one CST, that the government 
ultimately did not provide such personnel, and that this constituted a change to the 
Contract (61176 R4, tab 1 at 1-2, 28).  The final decision quoted Mr. Lee’s letter dated 
August 7, 2014, which (1) states that the purpose of providing the government 
personnel on the project was solely for the benefit of the government and 
(2) acknowledged that NSA had waived the requirement that the government provide a 
CAG and CST on the project.  The final decision also referenced NSA’s February 14, 
2012 email (finding 40) and August 31, 2012 letter (finding 42), and acknowledged that 
neither document was “provided to offerors prior to award.”  (61176 R4, tab 1 at 21-22)   
 
 70.  The final decision asserted that previously-executed bilateral modifications 
were an accord and satisfaction that settled ECCI’s right to additional payment for the 
Government’s alleged failure to furnish one CAG and CST (61176 R4, tab 1 at 47-48). 
 
Claim Submission in Appeal No. 62029 
 
 71.  By letter dated March 14, 2014, to Mr. Kim, ECCI provided a “Notification 
of Change” pursuant to FAR 52.243-4, raising the issue of SSM authority, and 
requesting clarification of the scope of CST monitoring in CAA contiguous space 
(62029 R4, tab 18 at 451).  ECCI stated that standards set forth in “ICD 705.1” were 
“not being enforced on-site by the Government’s Site Security Managers where CSTs 
are being used in a dual role as surveillance technicians and sentries” and that “ECCI 
considers this a changed condition to use CSTs to monitor work excess to the contract 
requirements and provides written notice there are cost impacts associated with this 
changed direction” (62029 R4, tab 18 at 451-52).  ECCI requested a written 
clarification from the Contracting Officer March 18, 2014 (id. at 452).  
 
 72.  By letter dated June 23, 2014, Mr. Kim responded to ECCI’s March 14, 
2014, letter, stating:  
 
• ECCI should continue to utilize the CSTs according to 
contract requirements for monitoring of the actual 
construction performed by un-cleared workers within the 
CAA and when work is being performed that penetrates 
the CAA perimeter wall 
 

35 
 
• CST should be utilized to monitor the CAA space as well 
as areas contiguous to the CAA space that penetrate the 
perimeter walls, windows, doors, ceiling and floor 
 
• The site security manager does not have authorization to 
request changes to the contract requirements 
 
(62029 R4, tab 18 at 453) 
 
 73.  By email dated March 22, 2015, to CACI, Mr. Greg Joyce, ECCI Senior 
Program Manager, stated, in part: 
 
Even though we had a previous agreement from Govt. reps 
weeks ago, that CAGs and CSTs were not necessary to 
guard a thick reinforced concrete slab (on the 2nd floor, 
and not part of the SCIF that is on the first floor), issues 
still arose post agreement, and issues still arise.  Debates 
still occurred post agreement, and still occur.  I want to 
make it clear once and for all that neither a CAG nor a 
CST is required on the second floor above the SCIF unless 
we are drilling into said floor that is above the SCIF 
(“CAA space”). 
 
 . . . . 
 
I want to make it clear that the USACE Contracting 
Officer, the only person with the authority to modify the 
contract, at times chooses not to do something security 
related, chooses not to do something that is “better in the 
minds of security folks,” and therefore ECC is not 
obligated to do it no matter what the SSM or CACI on-site 
personnel think or want.  Contract Law supersedes security 
wants.  If the Govt. wants to add security related scope, it 
will modify the contract to ECC accordingly, and ECC will 
flow down the modification to CACI accordingly.  In 
earlier correspondence that we shared with you, the 
USACE Contracting Officer’s letter to ECC, stated just 
that. 
 
 . . . . 
 
Only USACE can modify the Contract documents.  The 
SSM does not have the authority (nor does Patrick Cole) to 

36 
 
modify the contract documents, nor impose procedures that 
incur extra costs beyond those contemplated in the contract 
documents. 
 
 . . . . 
 
To remove any doubt:  If USACE is not going to formally 
modify ECC’s contract and pay us (both ECC and CACI) 
for extra steps / extra security scope / extra people, then 
ECC is not going to modify CACI’s contract nor will ECC 
pay CACI for extra steps, extra people, and extra security 
scope. 
 
To remove any doubt:  If a CACI representative influences 
or sells extra steps or extra people or extra scope to the 
SSM, and CACI follows the SSM direction and facilitates 
pushing ECC to comply, without a modification from the 
USACE Contracting Officer, and without ECC flowing 
down the modification to CACI, then CACI is at risk and 
exposed to bearing the financial burden, to include the cost 
of ECC’s PM’s/APM’s time to manage conflict that CACI 
on site personnel bring into the project. 
 
(Gov’t supp. R4, tab 27b at 1, 3) (emphasis in original) 
 
 74.  By letter dated November 28, 2018, ECCI submitted to Contracting Officer 
Nicholas Johnston a claim in the amount of $388,495, with the requisite CDA 
certification, for an alleged government change to the Contract, which required 
increased SSMS in areas contiguous to the CAA (62029 R4, tab 18 at 1-2).  According 
to appellant “[t]he Government directed ECCI to monitor CAA Contiguous Areas 
within the 501st MI BDE HQ using CSTs when work was being performed regardless 
of whether this work involved activities that penetrated the CAA boundary” (62029 
R4, tab 18 at 614).  Appellant alleged that “[t]he Contract requires SSMS monitoring 
within the Contiguous Areas only when intrusive work penetrating the CAA boundary 
is performed” (id.).  
 
 75.  On March 14, 2019, Mr. Johnson issued a final decision denying ECCI’s 
November 28, 2018, certified claim (62029 R4, tab 1 at 1, 70).  The contracting officer 
found that ECCI “was always required to monitor construction activities by uncleared 
workers in areas contiguous to the CAA with its SSMS subcontractor in order to satisfy 
its contractual responsibility ‘to provide Site Security Monitoring Personnel (SSMP) to 
detect unauthorized access to controlled areas, to deter construction worker activities, 
preventing the implantation of clandestine surveillance devices or systems into 

37 
 
structures being constructed or its immediate surroundings’” (62029 R4, tab 1 at 2).  
The final decision also found that “[t]he SSM lacked authority to change the Contract” 
(62029 R4, tab 1 at 37).  The final decision asserted that previously executed bilateral 
modifications were an accord and satisfaction that waived or settled ECCI’s right to 
additional payment related to the appellant’s contiguous space monitoring claim (62029 
R4, tab 1 at 43-51). 
 
DECISION 
 
1. ASBCA No. 61176 
 
Insofar as we can determine, this appeal presents an issue of first impression 
before the Board, namely, where the Contract states that the government will provide 
“Government-Furnished Site Security Monitoring” personnel and the government 
subsequently does not provide that personnel, whether the government’s change to the 
Contract is a breach, entitling the contractor to increased costs allegedly incurred in 
performing work that the contractor believed would have been performed by 
government personnel.  Appellant seeks additional compensation for hiring one 
additional CST and CAG as a result of the government not providing one CST and 
CAG on the project (app. br. at 9-10).  Citing Sauer, Inc., v. Danzig, 224 F.3d 1340, 
1348 (Fed. Cir. 2000), appellant argues that it “is entitled to an equitable adjustment 
for the increased costs incurred as a result of that change” (app. br. at 10).  ECCI 
claims that, in preparing its price proposal, it relied upon the government’s promise to 
furnish the personnel, and, thereby reduced its price (app. br. at 3, 10; findings 28-29).   
 
The government denies entitlement, arguing that the one additional CST and 
CAG it was to provide “were intended by the Government to act solely in the role of 
management and oversight of the site security work, and not as employees to assist the 
Contractor” (gov’t resp. at 8).  As support, the government points to the responsibilities 
of the government CST and CAG specified in the Contract, noting they were limited to 
reviewing and coordinating activities, and did not include SSMS work appellant was 
contractually required to perform (gov’t br. at 8-9, 20).  The government likewise 
disputes ECCI’s allegation that, in preparing its cost and technical proposals, it lowered 
its price in reliance upon the government’s statement that it would provide one CST and 
one CAG (gov’t br. at 28-29). 
 
A. The Government’s Statement that It Would Provide Site Security 
Monitoring Personnel Did Not Relieve ECCI of Its Staffing Responsibilities 
 
The parties agree that the Contract specified the government would provide one 
CST and one CAG, that the government ultimately did not provide such personnel, 
and that this constituted a change to the Contract (finding 69; app br. at 7).  The parties 

38 
 
disagree as to whether this is a compensable change.  To resolve this dispute, we turn 
first to the language of the Contract. 
 
It is well established that “[c]ontract interpretation begins with the plain 
language of the agreement,” Foley Co. v. United States, 11 F.3d 1032, 1034 (1993), 
and “the language of a contract must be given that meaning that would be derived 
from the contract by a reasonable intelligent person acquainted with the 
contemporaneous circumstances.”  Hol–Gar Mfg. Corp. v. United States, 169 Ct. Cl. 
384, 388, 351 F.2d 972, 975 (1965).  In addition, “[a]n interpretation that gives 
meaning to all parts of the contract is to be preferred over one that leaves a portion of 
the contract useless, inexplicable, void, or superfluous.”  NVT Techs., Inc. v. United 
States, 370 F.3d 1153, 1159 (Fed. Cir. 2004). 
 
The Contract clause at issue here, entitled “Government Furnished Site Security 
Monitoring,” specifies that the government would provide one CAG and one CST “for 
the duration of the construction activities.”  As to the work the government personnel 
would perform, the clause specifies that “[t]he Government staff will be responsible 
for reviewing the scheduled construction activities and coordinating site security 
monitoring with contractor and contractor security staff.”  (Finding 4)  The language is 
plain as to the responsibilities of the government staff.  The provision in no way states 
or even remotely suggests that part of the government personnel’s responsibilities was 
performance of SSMS that the Contract required appellant perform.  As we discuss 
below, appellant proffers several arguments seeking to add language, caveat, and 
meaning to this clause, all of which is unwarranted or simply incorrect. 
 
B. The Provision Referencing “Government Furnished Site Security 
Monitoring” Personnel Does Not Change ECCI’s Personnel Obligations 
Specified by the Contract   
 
In support of its contention that the contract relieved it of responsibility for 
providing the two security employees, appellant seeks to equate government-furnished 
personnel with government-furnished property, stating “there is no basis whatsoever 
for the Government’s assertion that the phrase ‘government-furnished’ takes on a 
wholly different and conflicting meaning in the context of personnel” (app. br. at 2-3, 
15-16).  Yet, appellant cites no legal precedent to support its suggestion that 
government-furnished property is somehow equivalent to government-furnished 
personnel.  Moreover, appellant’s argument is based upon a false premise, as the 
Contract does not contain the term “government-furnished personnel” (61176 R4, 
tabs 2-3) (see app. br. at 15 (stating, “this dispute concerns ‘government-furnished’ 
personnel, rather than property”) (app. resp. at 4, 7-8, 10, 13-14, 17) (referencing 
“government furnished personnel”). 
 

39 
 
FAR 52.245-1, which is incorporated into the Contract, defines 
government-furnished property as including “spares and property furnished for repair, 
maintenance, overhaul, or modification” and “contractor-acquired property if the 
contractor-acquired property is a deliverable under a cost contract when accepted by 
the Government for continued use under the contract” (finding 47).  Government 
property is defined as “all property owned or leased by the Government,” including 
“material, equipment, special tooling, special test equipment, and real property” (id.).  
Neither definition identifies government personnel as a type of government-furnished 
property or government property (id.).  We know of no government regulation that 
equates the two.10    
 
We likewise have found no decision of the Court of Appeals for the Federal 
Circuit or this Board discussing the concept of “government-furnished personnel.”  
The Comptroller General, however, has issued one decision, IBM Global Bus. Servs., 
B-298833.4, B-298833.5, 2007 CPD ¶ 82 (Comp. Gen. Mar. 1, 2007), discussing the 
concept of government-furnished personnel in the context of a bid protest.  Although 
decisions of the Comptroller General are not binding precedent on this Board, they 
may prove helpful by illustration of how another well-informed tribunal interprets the 
contractual provisions at issue.  We find IBM Global to be worthy of consideration and 
examination because it provides a clear example of what the government does when it 
wishes to provide government personnel to work with contractor personnel on a 
contract.  
 
In IBM Global, the Comptroller General denied a protest of a Department of the 
Air Force contract award for an Expeditionary Combat Support System (ECSS) 
System Integrator (SI), utilizing off-the-shelf software.  The request for quotations 
(RFQ) specified that successful implementation of the system being procured “would 
require a partnership between the agency and the SI” and that “the parties anticipate a 
unique sharing of concerns, knowledge and ideas via a partnership whereby 
Government personnel are made available to provide a source of information, and to 
work side-by-side with the contractor.”  2007 CPD ¶ 82 at 4. 
 
One of the factors considered in awarding the contract was price, which was 
“comprised of the value of the task order plus the value of any government-furnished 
personnel and property.”  2007 CPD ¶ 82 at 2.  To account for any difference in the 
anticipated use of government personnel, the RFQ required vendors to complete a 
Government Personnel Matrix, which would be incorporated into the contract, 
                                              
10 FAR 45.000 likewise sets forth policies and procedures concerning 
government-furnished property, but contains no provisions concerning 
government-furnished personnel.  48 C.F.R. 45.000 (prescribing policies and 
procedures for providing government property to contractors and contractors' 
management and use of government property). 

40 
 
specifying by contract year the number of government personnel by experience level 
and the percentage of time required.  The RFQ also specified the maximum amount of 
government personnel available per skill level, per contract year.   
 
To analyze price, the RFQ stated: 
 
For each category of government personnel for each 
contract year, the matrix specified a cost per full-time 
equivalent (FTE) that would be added to the vendor’s 
quoted price for purposes of the evaluation in order to 
“eliminate any competitive advantage resulting from the 
vendor’s proposed use of Government Personnel.” 
 
2007 CPD ¶ 82 at 5.  The RFQ also contained a provision by which the government 
was required to make personnel available in accordance with the Government 
Personnel Matrix, and whereby “the contractor ‘shall be entitled to an equitable 
adjustment should the Government fail to make the required personnel available.’”  
2007 CPD ¶ 82 at 5.
11   
 
In contrast, the Contract here contained no such provisions.  Had it been the 
intent of the Contract that a contractor could utilize government personnel to perform 
its Contract work, the Solicitation specifically could have stated that government 
personnel were available to perform contractor work, as the contract did in IBM 
Global, and could have included provisions similar to the Air Force contract to 
“eliminate any competitive advantage resulting from the vendor’s proposed use of 
Government Personnel.”  2007 CPD ¶ 82 at 5.  As we discuss more fully below, the 
fact that the Contract here contained no such express statements or provisions should 
have set off alarm bells for appellant, an experienced contractor, given its stated belief 
that it could utilize government personnel to perform its contract work, and given the 
Contract’s failure to specify exactly how that would be accomplished.    
 
C. ECCI’s Failure to Inquire Whether the Government Interpreted the Contract 
as It Did Was Unreasonable 
 
                                              
11 The protestor challenged the procurement upon the grounds that the Air Force 
lacked authority to contractually commit government personnel to work on the 
contract, but the Comptroller General rejected this challenge as untimely.  The 
protestor likewise challenged the Air Force’s capability to furnish the number 
of government personnel proposed.  The Comptroller General rejected this 
challenge as well, holding that the record supported a finding that the 
government reasonably could conclude that it had sufficient resources to meet 
the proposed number of government personnel.  2007 CPD ¶ 82 at 5-6. 

41 
 
To receive an equitable adjustment to the Contract, ECCI must demonstrate that 
it reasonably relied upon its interpretation of the Contract.  Stuyvesant Dredging Co. v. 
United States, 834 F.2d 1576, 1581 (Fed. Cir. 1987).  Indeed, appellant notes in its 
brief that “a proper technique of contract interpretation is for the court to place itself in 
the shoes of a reasonable and prudent contractor and decide how such a contractor 
would act in interpreting the contract” (app. br. at 16) (citing H.B. Mac, Inc. v. United 
States, 153 F.3d 1338, 1345 (Fed. Cir. 1998)).  Placing ourselves in the shoes of such a 
contractor convinces us that ECCI’s interpretation was unreasonable, as were its 
actions (or lack thereof) resulting from that interpretation. 
 
The fact that the government included in the Contract a provision setting forth 
government-furnished site security monitoring is not, in and of itself, out of the 
ordinary.  Mr. Fern, appellant’s program manager, acknowledged that site security 
monitoring typically is a government function (finding 9).  What is out of the ordinary 
– or “atypical” in the words of Mr. Fern (finding 9) – is that the contractor was 
responsible for SSMS, and “for hiring a security monitoring subcontractor to provide” 
SSMS (finding 2).  Indeed, the record reflects that the USACE FED, unbeknownst to 
ECCI, received special dispensation from NSA to allow the contractor to provide 
SSMS (findings 40-43). 
 
Assuming for the sake of argument that appellant, an experienced contractor 
“with more than 26 years of experience managing and executing in excess of 
$3.2 Billion in US Federal Government construction” (finding 20), and specifically 
Mr. Fern, truly believed that government personnel would be provided for the benefit 
of the contractor, ECCI, as a reasonable contractor, should have inquired from the 
government whether its understanding of the solicitation was correct.  ECCI’s 
argument that, although the government put appellant in charge of SSMS, the 
government agreed to provide to ECCI two employees (no more no less) to perform 
SSMS for ECCI – without any explanation of how this would work or any limitations 
on the work the government would provide – is nonsensical.  This especially is true 
given that the Contract contained no provisions (like those referenced in IBM Global) 
to capture the cost impact of the government’s performance of contractor work, or any 
guarantee that government personnel would be available to perform a set amount of 
contractor work.  “Where a potential contractor is presented with a contract containing 
. . . an obvious omission, inconsistency, or discrepancy of significance” the contractor 
“must consult the Government's representatives if he intends to bridge the crevasse in 
his own favor.”  HRH Constr. Corp. v. United States, 192 Ct. Cl. 912, 920, 428 F.2d 
1267, 1272 (1970).   
 
According to Mr. Fern, “[i]f the RFP states to all offerors that the Government 
will provide one CAG and one CST, and with the function of a CAG and CST being 
well known to experienced secure construction contractors, then a prudent bidder in a 
competitive situation would have no choice but to remove one CAG and one CST 

42 
 
from their pricing” (finding 30) (appellant’s August 14, 2014 letter contains a similar 
statement (finding 65)).  Although we agree that ECCI is an experienced contractor, 
we disagree with its conclusion that it had “no choice” but to simply remove from its 
pricing one CAG and one CST.  Given appellant’s belief that the government’s 
approach was “atypical,” the reasonable choice would have been for appellant to raise 
with the government its interpretation and belief that “government-furnished 
personnel” were provided for the benefit of the contractor.  Had it done so, “the 
dispute now in litigation would have come to light, and would have been appropriately 
resolved prior to the submission of bids.  Having bridged the gap in its own favor 
without consulting the contracting officer prior to bidding, however, plaintiff is not 
entitled to recover here.”  HRH Constr. Corp., 192 Ct. Cl. at 920, 428 F.2d at 1272.  A 
reasonable contractor would have inquired about the issue presented, and would have 
specified in its proposal that, in preparing its cost estimate, it relied upon its 
interpretation of the RFP that the government would provide one government CST and 
CAG for use by the contractor in performing its SSMS duties.   
 
D. Question and Answer No. 18 Do Not Satisfy ECCI’s Duty to Inquire and Do 
Not Support ECCI’s Interpretation of the Contract 
 
Appellant suggests that a question asked during the procurement sufficiently 
raised the issue of how the contract provision at issue was to be interpreted to meet its 
duty to inquire, and that the government’s response supports ECCI’s favored 
interpretation (app. br. at 2; app. resp. at 6).  Specifically, Question no. 18, submitted 
by another offeror, which asked “[h]ow many CSTs will the Government provide and 
have on-site” (finding 17).  The government responded, “[i]n accordance with 
Section 01 31 00, per amendment 2, the Government will provide will provide 1 CAG 
and CST.  The contractor is to provide additional CAGs and CSTs to meet the 
requirements of Site Security Monitoring Services (SSMS).”  (Id.)  
 
In its response brief, appellant argues that “it was reasonable for ECCI to 
interpret the Q&A provided by the Government to mean that it would not be required 
to provide ‘all’ CAGs and CSTs, but only those ‘in addition to’ those provided by the 
Government.  To conclude otherwise would give no meaning to the Q&A response 
from the Government.”  (App. resp. at 6)  Assigning misplaced import to the word 
“additional,” appellant suggests “to the extent that there was any confusion or 
ambiguity regarding the obligations of the parties (which there was not), the 
Government confirmed that it would provide one CAG and CST, and the contractor 
would provide additional CAGs and CSTs as needed” (app. br. at 11).  The fallacy 
with appellant’s argument is its insertion of the qualifier “as needed,” i.e., “the 
contractor would provide additional CAGS and CSTs as needed” (app. br. at 11) 
(emphasis added).  Neither the Contract, nor the government’s answer, states that the 
contractor is only to “provide additional CAGs and CSTs as needed” (app. br. at 11; 
findings 2, 4, 17).  Indeed, the government’s answer unambiguously concludes that 

43 
 
appellant is required “to meet the requirements of Site Security Monitoring Services 
(SSMS)” (finding 17).   
 
Moreover, appellant’s interpretation of the government’s answer creates a 
conflict with two other Contract provisions.  Both CLIN 0006 and Specification Section 
01 31 00, paragraph 3.4, state that the contractor’s SSMS “[s]ubcontractor shall furnish 
all personnel, tools, protective equipment and supplies to provide SSMS in accordance 
with rules, laws, regulations and security requirements as stated in the RFP documents” 
(findings 2, 4) (emphasis added).  Appellant’s interpretation – that offerors “would not 
be required to provide ‘all’ CAGs and CSTs,” just “those ‘in addition to’” the 
government CAG and CST – is at odds with this clear requirement of the Contract – 
that appellant’s subcontractor was responsible to “furnish all personnel . . . to provide 
SSMS” (findings 2, 4). 
   
Neither the Contract, nor the government’s answer, limit the contractor’s 
obligations to simply providing “additional CAGs and CSTs as needed” (app. br. 
at 11) (findings 2, 4, 17).  The government’s answer, and use of the word “additional,” 
in no way establishes an agreement by to the government to make available its 
personnel to perform Contract work that appellant was required perform.  We reject 
appellant’s attempt to attribute greater legal significance to, and create government 
obligations out of, words that simply do not mean what appellant suggests. 
 
E. The Government’s Interpretation of the Contract is Reasonable 
 
In addition to asserting that its contract interpretation is correct, ECCI 
challenges the reasonableness of the government’s contract interpretation.  In its 
opening brief appellant argues that “the government attempts to read language into the 
contract that does not exist” (app. br. at 9), questioning the government assertion “that 
the language in the Contract related to a Government Furnished CAG and CST was 
merely identifying personnel who were solely for the benefit of the Government, and 
could not be used by the Contractor” (app. br. at 12).  The government, challenging 
appellant’s allegation that the one CST and CAG were provided to perform work for 
the contractor, states that the Contract identified specific, limited responsibilities of the 
government CST and CAG, i.e., reviewing scheduled construction activities and 
coordinating site security monitoring (gov’t br. at 8, 20).   
 
As persuasively explained in Mr. Kim’s August 7, 2014 letter and 
Ms. Billman’s final decision, the duties assigned to the government CST and CAG, 
i.e., reviewing scheduled construction activities and coordinating site security 
monitoring, were tasks that were solely for the benefit of the government (findings 64, 
69).  That these task were solely for the government’s benefit is evident in the Contract 
language – paragraph 3.3 of Specification 01 31 00 – which sets forth the government 
CST and CAG responsibilities as “reviewing the scheduled construction activities and 

44 
 
coordinating site security monitoring with contractor and contractor security staff” 
(finding 4).  The Contract provision does not state that the government CST and CAG 
were to perform, or were available to perform, the contractor’s SSMS work.  The 
responsibilities assigned to the CST and CAG are as stated in the Contract, no more 
and no less. 
 
In its response brief, appellant challenges the government’s position that the 
role of the government CST and CAG was limited to “reviewing and coordinating 
activities,” arguing the Contract “language does not include any limitation on the 
Government Furnished personnel providing site security management services” (app. 
resp. at 4; citing gov’t br. at 8).  We disagree.  Again, as discussed above, the Contract 
contained an express limitation on the role of the government CST and CAG – 
reviewing scheduled construction activities and coordinating site security monitoring 
(finding 4). 
 
In essence, appellant argues that, because the Contract did not contain any 
additional statement providing that the government CST and CAG were limited to 
reviewing scheduled construction activities and coordinating site security monitoring, 
the contractor was free to add responsibilities and direct government personnel to 
perform ECCI’s contractual SSMS obligations.  Appellant’s argument is a 
non-sequitur, as it does not follow that, because the Contract did not include additional 
language further limiting the role of the government CST and CAG, appellant was free 
to expand the government’s obligations and utilize government personnel to perform 
contractor work.   
 
Appellant proffers also a second non-sequitur, arguing that, “[c]ontrary to the 
Government’s assertion, the contract does not limit the responsibilities of the CAG and 
CST ‘to reviewing and coordinating activities,’” because the Contract “clearly states 
that [the CAG and CST] would coordinate with ECCI and its security staff” (app. resp. 
at 4).  The “coordination” specified in the Contract was the government coordinating 
site security monitoring with appellant in conjunction with the government’s review of 
scheduled construction activities.  Such coordination does not equate to an agreement 
that the government would perform some of ECCI’s SSMS responsibilities as well.
12   
                                              
12 Indeed, it is appellant, not the government, who seeks to add language to the 
Contract.  ECCI argues that it planned to utilize the government CAG and CST 
“to review the scheduled construction activities, coordinate site security 
monitoring, and perform the SSMS work for the duration of the Contract” (app. 
br. at 3) (emphasis added).  Paragraph 3.3 of Specification 01 31 00 (finding 4) 
makes no mention of the government CST and CAG “perform[ing] the SSMS 
work” (id.).  Rather, it states that “[t]he Government staff will be responsible 
for reviewing the scheduled construction activities and coordinating site 

45 
 
 
F. ECCI’s Technical Proposal Does Not Support a Finding that It Relied Upon 
Its Proffered Interpretation of the Contract When Making Its Bid 
 
As discussed above, to receive an equitable adjustment, ECCI must demonstrate 
that it reasonably relied upon its interpretation of the Contract.  Stuyvesant Dredging, 
834 F.2d at 1581.  ECCI argues that proof of its reliance is contained in its technical 
proposal.13  According to appellant, its site security staffing plan was prepared 
“utilizing the CAG and the CST provided by the Government as part of the resources 
it planned to use to review the scheduled construction activities, coordinate site 
security monitoring, and perform the SSMS work for the duration of the Contract.”  
Appellant asserts that evidence of “[t]his reliance was communicated through the 
Project Organizational Chart (Figure 1) . . . included in ECCI’s Technical Proposal.”  
(App. br. at 3; citing 61176 R4, tab 19 at 9; see finding 22).   
 
The evidence that this chart allegedly conveys regarding appellant’s intended 
use of government personnel is not evident from the text of the chart.  In actuality, the 
opposite is true.  Although the chart does list the three government positions of SSM, 
CST, and CAG, it does not indicate, or even suggest, that those three government 
personnel would perform SSMS work for appellant or on its behalf.  The government 
personnel appear on the chart outside the box labeled “Site Security Monitoring 
Services,” with the chart providing no link (“reporting” or “communication”) between 
the government personnel and the contractor/subcontractor personnel.  (Finding 22)   
 
The Contract required offerors to submit a Project Organization Chart that 
depicted “how management, supervisory, and administrative functions will be 
performed” (finding 15).  Had appellant intended that the government CST and CAG 
would perform SSMS work for appellant, the chart should have indicated a reporting 
or communication link between the government personnel and the 
contractor/subcontractor personnel.  (Findings 15, 22, 26)   
 
Likewise, although ECCI’s technical proposal contained a detailed discussion 
of the work appellant anticipated its own personnel and subcontractor personnel would 
perform, the technical proposal provided no discussion of the SSMS work ECCI 
                                              
security monitoring with contractor and contractor security staff” (finding 4) 
(emphasis added).   
13 ECCI also argues that this proof is found in its price proposal, and in the declaration 
of Mr. Fern, who states that he relied upon it (finding 28).  The price proposal is 
addressed in the next section.  Mr. Fern’s declaration is addressed in the section 
below on the parties’ contemporaneous understanding of the contract. 

46 
 
anticipated the government might perform on appellant’s behalf, or how appellant 
might coordinate or schedule such work with the government (findings 20-26).14   
 
Appellant faults the government for not identifying “any problems with ECCI’s 
staffing approach in its proposal, despite clear indications from ECCI that it intended 
to utilize the Government Furnished CAG and CST in performance” (app. br. at 17).  
This argument is, at best, wishful thinking on the part of appellant.  As we have found, 
appellant’s technical proposal did not provide any indication, clear or otherwise, that 
ECCI intended to utilize government personnel in performing its contractual 
obligations (finding 26).   
 
In its response brief, appellant argues that it “was under no obligation to 
reference the Government Furnished CAG and CST beyond including them in their 
execution plan as depicted in ECCI’s Technical Proposal” (app. resp. at 7).  However, 
whether appellant was obligated to provide more details in support of its reliance on 
the government’s CAG and CST is beside the point:  without those details, and as the 
proposal was written, it provides no evidence of reliance. 
 
Even assuming for the sake of argument that the government would have 
allowed its personnel to perform Contract work for appellant, there would have been 
considerable uncertainty as to how that work would be assigned, how much work the 
government personnel actually would perform, and no guarantee of actual 
performance, without some specific agreement between the parties.  Simply listing 
three government positions on the chart in ECCI’s technical proposal, with no 
indication how those positions were to interact with the contractor or receive work 
assignments, was wholly insufficient to protect appellant’s interests or to put the 
government on notice that appellant believed government personnel would be working 
for the contractor.   
 
By not specifying in its technical proposal or inquiring from the government 
how much appellant could rely upon government personnel, and by not locking in a 
commitment from the government as to specific work government personnel could and 
would provide, appellant assumed the risk that government personnel might not 
perform any contractor work because the government personnel instead were 
performing Contract responsibilities specifically assigned to them.   
 
Contrary to appellant’s suggestion, “further reference[] by ECCI to the 
Government CAG and CST” in its technical proposal was necessary to insure that the 
                                              
14 Clairvoyance is neither a skill expected of government evaluators in reviewing 
proposals, nor are evaluators expected simply to foresee that an offeror reduced 
its price because it incorrectly believed government employees would perform 
work that the contractor otherwise would have been required to perform. 

47 
 
government was on notice of appellant’s intent to utilize government personnel and 
insure that government personnel were available to perform the work appellant 
anticipated (app. resp. at 7).  Appellant’s silence on this issue, in light of its belief that 
government personnel would be available for whatever SSMS work the contractor 
specified, did not reflect the actions of a “reasonable and prudent contractor” (app. 
resp. at 6; citing H.B. Mac, Inc., 153 F.3d at 1345).    
 
G. ECCI’s Price Proposal Does Not Support a Finding of Reliance by ECCI 
 
Appellant argues that it “need not prove how much it reduced its cost proposal 
based on the Government Furnished CAG and CST – what matters is that it relied on 
those Government Furnished personnel when preparing its proposal, and incurred 
additional costs when the Government changed the Contract” (app. resp. at 8).  The 
fact that appellant is unable to state specifically how much it allegedly reduced its 
Contract price in reliance upon its belief it could utilize the government’s CST and 
CAG to perform appellant’s SSMS obligations, is supportive of a finding that neither 
its technical nor price proposal truly reflected appellant’s stated intent.  Had appellant 
acted in a reasonable manner (assuming for the sake of argument the reasonableness of 
appellant’s interpretation of the Contract) and made inquiry of the government, it 
would have received assurances as to the amount of work it could count on being 
performed by government personnel.  In this case, the response presumably would 
have been “none.”  Although the amount sought by appellant is relevant to the issue of 
quantum, appellant’s inability to state with specificity a dollar amount tied to the 
additional work it was required to perform, casts doubt upon appellant’s alleged belief 
that government personnel would perform contractor work.     
 
H. Contemporaneous Understanding of the Parties  
 
Appellant argues that the government’s current interpretation is in conflict with 
the contemporaneous understanding of the parties, citing Reliable Contracting Grp., 
LLC v. Dept of Veterans Affairs, 779 F.3d 1329, 1332 (Fed. Cir. 2015), Blinderman 
Constr. Co. v. United States, 695 F.2d 552, 558 (Fed. Cir. 1982), and Edinburgh Int’l, 
ASBCA No. 58864, 16-1 BCA ¶ 36,227 at 176,743, for the proposition that a parties’ 
contemporaneous interpretation of a contract is entitled to great weight (app. br. 
at 13-14, 16-18).  Appellant’s reliance upon these decisions is misplaced because 
appellant has not established, in the first instance, that the government’s current 
position is in conflict with a position it held at the time of Contract award.   
 
As proof of the government’s alleged contemporaneous understanding of the 
Contract, appellant cites not to contemporaneous documentation or statements from 
the parties, but, rather, deposition testimony of Contracting Officer 
Mr. Michael Miyagi taken long after Contract completion.  Mr. Miyagi’s testimony 
does not establish what appellant suggests.  For example, appellant notes that, when 

48 
 
asked “what is your understanding of when the government puts in a contract 
‘government-furnished,’”  Mr. Miyagi stated, “[w]hatever it says in the title, 
government-furnished, [the government] will furnish this equipment or product” for 
the use of the contractor in performing the contract.  (App. br. at 13-14; app. supp. R4, 
tab 5 at 16).15  Mr. Miyagi’s was asked a general question – “what is your 
understanding” – not what was your understanding of the relevant Contract provision 
at the time of Contract award.  Moreover, Mr. Miyagi’s cited testimony speaks to 
“equipment or product,” not government personnel (id.).   
 
When asked “[f]rom what it says in the contract, is it your understanding that 
the contract is providing that the government is going to furnish these people for the 
contractor to use in performing the work,” Mr. Miyagi responded, “at this time, yes. I 
see it as a – it says the government shall provide, one.  It’s specific on here . . . So, you 
know, whatever the contract says, it’s specific.”  (App. supp. R4, tab 5 at 18)  While 
the contracting officer’s response is not a model of clarity, it in no way suggests a 
contemporaneous interpretation of the Contract by Mr. Miyagi that at the time of 
award the government would furnish personnel “for the contractor to use in 
performing the work” (id.).  Indeed, Mr. Miyagi stated in his deposition that he was 
not involved in preparing the relevant specification at issue here (app. supp. R4, tab 5 
at 15).  Appellant cites no testimony demonstrating Mr. Miyagi’s understanding at the 
time of Contract award and the deposition testimony cited is insufficient to carry 
appellant’s burden of establishing the government’s contemporaneous understanding 
of the Contract.    
 
The government likewise challenges appellant’s contemporaneous understanding 
of the Contract with regard to the contractor’s intent to utilize the government CAG and 
CST.  Citing documents issued by ECCI and its subcontractor in February and May 
2013, setting forth their respective site security plans, the Government notes that neither 
document contains any “mention of a government-provided CAG or CST or how they 
would be used” (gov’t br. at 24-25).  The government is correct.  Neither ECCI’s 
CSMP, nor CACI’s SSP, contain any discussion of the government CAG or CST, or 
how government personnel might be utilized by ECCI or CACI in performing its SSMS 
obligations (findings 54, 56), thus calling into question ECCI’s and CACI’s true intent 
with regard to utilizing government personnel to perform contractor/subcontractor 
functions.   
 
Although Mr. Fern’s declaration states his recollection that appellant’s proposal 
reflected his “interpretation of the RFP that ECCI could and would use the 
                                              
15 Appellant also references the following question and answer, “So is the government 
furnishing it for the use of the contractor in performing the contract?”  To 
which Mr. Miyagi responded, “[a]ccording to the contract itself, yes.”  (App. br. 
at 14) 

49 
 
Government CAG and CST to perform some of the site security monitoring services, 
and the bid cost for such work was thereby reduced accordingly,” (finding 28), the 
lack of contemporaneous documentation supporting this statement suggests otherwise 
(see findings 26 (appellant’s technical proposal), 27 (appellant’s price proposal), 30 
(interrogatory answer stating “a trend log of detailed changes that were made prior to 
submission of our original bid were not documented for the record”),  37 (appellant’s 
revised price proposal).16 
 
I. The Contract’s Identification of Government Personnel is Not Superfluous 
 
ECCI argues that if paragraph 3.3 of Specification 01 31 00 “was intended to 
refer to Government personnel available solely for the benefit of the Government, 
there would have been no reason whatsoever to include that language in the Contract” 
because “[t]he Government is under no obligation to provide contractors with a list of 
all personnel that the Government will use to administer the Contract” (app. br. at 13).  
Appellant concludes, “[t]he only reason to include that language was to inform 
contractors that two individuals would be made available by the Government to assist 
the contractor in performing its obligations” (id.).  Appellant provides no legal 
authority in support of its conclusion, and simply saying it does not make it so.  
Matcon Diamond, Inc., ASBCA No. 59637, 20-1 BCA ¶ 37,532 at 182,260.  Perhaps 
ECCI is arguing that including the provision would be superfluous if it were not 
intended to convey that the contractor could use these personnel to supplement its 
own, and it is best to avoid an interpretation of the contract that makes portions of it 
meaningless or superfluous.  See Precision Dynamics, Inc., ASBCA No. 50519, 05-2 
BCA ¶ 33,071 at 163,922.  But this portion is not meaningless, for it provides 
information to the potential contractor about how execution of the contract will be 
organized.  Indeed, the Contract includes other references to government personnel 
assigned to work on the project, including the Project Manager, the COR, and the SSM 
(61176 R4, tab 6 at 13).  The fact that the Contract identifies personnel assigned to the 
project does not equate to a promise by the government that the personnel it identifies 
would thereby be available to perform appellant’s contractual obligations.   
 
J. Patent Ambiguity 
 
The government argues that, assuming appellant’s Contract interpretation were 
deemed reasonable, appellant’s interpretation would create a patent ambiguity, 
imposing upon appellant a duty of inquiry (gov’t br. at 31).  As discussed above, 
appellant’s interpretation of the RFP raises several questions for which it should have 
sought clarification from the government during the solicitation process.  Indeed, the 
                                              
16 For these reasons, we also do not find Mr. Fern’s declaration as supporting a finding 
that ECCI reasonably relied upon its interpretation of the contract when it bid 
the project. 

50 
 
number of questions raised by appellant’s interpretation indicates the unreasonableness 
of its interpretation.  Appellant’s failure to raise the issues during the procurement also 
suggests that perhaps appellant did not hold then its interpretation of the RFP that it 
now advocates.  Nonetheless, assuming for the sake of argument the reasonableness of 
its interpretation, we find that appellant’s interpretation created a patent ambiguity, 
thus imposing upon it the duty of inquiry.  Interwest Constr. v. Brown, 29 F.3d 611, 
615-116 (Fed. Cir. 1994). 
 
The government argues that appellant’s “interpretation is in direct contradiction 
to the specific terms of the Contract that stated that it was the contractor’s primary 
responsibility to provide the Site Security Monitoring Personnel (SSMP) and included 
the full range of duties for those positions in a section limited to the contractor’s 
responsibility” (gov’t br. at 32-33).  In response, appellant asserts that the Contract 
“specifically references the contractor’s primary responsibility to provide SSMP, and 
it does not state that it is the sole responsibility of the contractor to provide all SSMP” 
(app. resp. at 14) (emphasis supplied by appellant).   
 
Appellant’s argument reads the term “primary responsibility” out of context.  
The Contract states that “[t]he primary responsibility of the contractor is to provide 
Site Security Monitoring Personnel (SSMP) to detect unauthorized access to controlled 
areas, to deter construction worker activities, preventing the implantation of 
clandestine surveillance devices or systems into structures being constructed or its 
immediate surroundings” (finding 4).  It in no way addresses a demarcation of SSMS 
responsibilities between the government and the contractor.  Rather, it addresses the 
primary responsibility of the contractor with regard to specific SSMS tasks appellant 
must perform.   
 
We agree with the government that, assuming the reasonableness of appellant’s 
interpretation, it created a patent ambiguity, imposing upon ECCI the duty to inquire.  
Southwest Marine, Inc., ASBCA No. 53561, 02-1 BCA ¶ 31,834 at 157,280.  The 
Contract contained no provision specifying how much of appellant’s SSMS 
obligations the government allegedly would perform or how that work would be 
assigned.  By not inquiring about the specific work appellant believed the government 
personnel would perform, and by not seeking a corresponding commitment from the 
government, appellant assumed the risk that its interpretation was incorrect and that 
government personnel would not perform any contractor work.   
 
K.  Conclusion – ASBCA No. 61176 
 
 Appellant’s claim in ASBCA No. 61176 is denied.  Because we find that 
appellant is not entitled to its increased costs allegedly incurred in performing work 
that it believes should have been performed by government personnel, we need not 
address additional arguments raised by the government in support of such a finding, 

51 
 
including whether appellant’s claim, or a portion of its claim, is barred by accord and 
satisfaction because of the parties’ modifications to the Contract (findings 57-62).  We 
likewise do not reach the issue of quantum. 
 
2.  ASBCA No. 62029 
 
This appeal seeks additional costs allegedly incurred in performing changed 
work to the Contract, thereby raising an issue of contract interpretation.  Appellant 
argues the existence of a compensable change because it “was directed to perform 
security services in additional areas, specifically, areas contiguous to those where 
security was required by the Labor Synchronization Security Matrix that did not 
involve work that penetrated the Classified Area boundary” (app. br. at 27).17  As 
explained below, we hold that the work was within the scope of the contract.  In 
addition, we decide that even if the work required was outside of the scope of the 
contract, the government employee who allegedly directed the change had no authority 
to do so.   
 
A.  Appellant’s Notification of Change – Scope of Contract Work  
 
By letter dated March 14, 2014, ECCI submitted a “Notification of Change,” 
requesting clarification of the scope of CST monitoring in the CAA contiguous space 
(finding 71).  ECCI argues that the Labor Matrix established the SSMS scope of work, 
providing “specific requirements for CSTs in various Classified Areas of the work and 
did not require CSTs in various Unclassified Areas of the work,” except when that 
work penetrated the walls of the CAA (app. br. at 3, 23, 26-27).  In its claim, appellant 
phrased its dispute as seeking costs for the use of CAGs
18 “to monitor areas 
surrounding the walls and ceiling of the Controlled Access Area (CAA Contiguous 
Areas) when work was not being performed that involved [sic] penetrated the 
boundary” (62029 R4, tab 18 at 614) (parenthetical information in original).
19   
                                              
17 The Labor Matrix contains no caveat regarding “work that penetrated the walls of 
the Classified Area Boundary,” nor does the word “penetration” appear 
anywhere within the Labor Matrix (62029 R4, tab 3 at 45-48).   
18 Appellant’s claim states that “[a]s a cost saving approach, ECCI suggested using 
CAGs to monitor the CAA Contiguous Areas as the SSMS personnel in this 
case were intended to be used as a deterrent to prevent tampering with the CAA 
boundary versus serving in the more typical role of a CST of monitoring 
construction activities” (62029 R4, tab 18 at 614). 
19 Appellant’s briefs do not contain any discussion of ECCI’s understanding or 
interpretation of the term “penetration,” or present any legal or contractual basis 
for ECCI’s apparent understanding of that term.  The only mention of the term 
in ECCI’s briefs appears in appellant’s statement of facts, wherein appellant 
states “that it estimated its CAG and CST costs based upon providing security 

52 
 
 
In response to appellant’s Notification of Change, the contracting officer, by 
letter dated June 23, 2014, informed appellant that “ECCI should continue to utilize 
the CSTs according to contract requirements for monitoring of the actual construction 
performed by un-cleared workers within the CAA and when work is being performed 
that penetrates the CAA perimeter wall” (finding 72).  The contracting officer stated 
also that “CST should be utilized to monitor the CAA space as well as areas 
contiguous to the CAA space that penetrate the perimeter walls, windows, doors, 
ceiling and floor” (id.).  Thus, the contracting officer specified that ECCI should 
follow the Contract requirements for monitoring construction by un-cleared workers, 
with CSTs monitoring CAA space and contiguous areas that penetrate the CAA 
perimeter.  Appellant’s claim recognized that the contracting officer’s letter clarified 
the Contract requirements (62029 R4, tab 18 at 10).
20 
 
Responding to the allegation in ECCI’s complaint that the Labor Matrix 
“‘clearly defined’ where SSMS were required to be performed by CSTs (i.e. within the 
‘SCIF/Classified Areas’) . . .” (gov’t br. at 45; citing gov’t supp. R4, tab 20 at 2), the 
government notes that “[t]he word ‘within’ is not used at all in that Matrix to limit 
monitoring to within the SCIF or Classified Areas,” and that “the Matrix simply offers 
a chart showing labor ratios under tables with the captions ‘Type Laborer – 
SCIF/Classified Area’ and ‘Type Laborer – Unclass Areas’” (gov’t br. at 46; citing 
62029 R4, tab 3 at 45-48).  The government concludes that appellant’s reliance upon 
“captions in this chart to argue that site security monitoring was only required ‘within’ 
the SCIF/ Classified Areas, is an unreasonable interpretation of this heading” (gov’t br. 
at 46).   
                                              
oversight for work in the Classified Areas shown on the Labor Security 
Synchronization Matrix, and for when penetrations through walls of the 
Classified Areas would occur” (app. br. at 23).  
20 In his declaration, Mr. Fern states that Mr. Kim’s letter informed “ECCI that SSMP 
had to monitor work in the SCIF/Classified Area and when penetrations were 
made into those areas” (app. supp. R4, tab 1 at 33).  According to Mr. Fern, 
“[t]his position . . . was consistent with the requirements of the Contract” (id.).  
We note that at page 16 of its claim, appellant appears to assert the opposite, 
stating that Mr. Kim’s June 23rd letter instructed that CST “should monitor 
work in contiguous areas even when work was NOT penetrating the CAA 
perimeter” which, appellant alleged, is a “clear deviation from the Contract 
requirements” (62029 R4, tab 18 at 16).  Regardless, this apparent 
inconsistency in appellant’s position is of no consequence in these appeals 
because appellant does not argue in its briefs that statements contained in 
Mr. Kim’s June 23
rd letter were a change to the Contract.  Rather, appellant’s 
Contract change argument is based upon alleged direction by the SSM (app. br. 
at 24, 26).   

53 
 
 
We agree.  In defining the terms and requirements of the Labor Matrix, ECCI’s 
addition of the word “within,” improperly seeks to limit the work appellant was 
required to perform.  As noted by the government, “the law of contract interpretation is 
clear that contracts cannot be rewritten after the fact to insert words that were never 
agreed to by the parties” (gov’t br. at 46 (citing George Hyman Constr. Co. v. United 
States, 832 F. 2d 574, 581 (Fed. Cir. 1987))).  Indeed, the word “within” appears only 
two times in the Labor Matrix in a distinctly-different context, first, in describing the 
Substructure Build-Out, i.e., “[t]his system includes all structural slabs, and decks and 
supports within basements and above grade,” and, second, in describing the Plumbing 
Rough-Out, i.e., “[a]ll water supply and waste items within the building” (62029 R4, 
tab 3 at 45-46).  We reject appellant’s suggestion that the Labor Matrix clearly 
indicated that SSMS was to be performed by CSTs only within the SCIF/Classified 
Areas. 
 
The government likewise notes that “ECCI’s interpretation is in conflict with 
the broader stated contract duties to monitor the structure and its ‘immediate 
surroundings’ and to monitor the construction workers ‘as they accomplish various 
tasks’” (gov’t br. at 46; findings 4, 8).  As support, the government relies, in part, on 
ICS 705-1 which specifies “SSM may require cleared escorts or CSTs for non-cleared 
workers performing work exterior to the SCIF that may affect SCIF security” and 
“[t]his provision for monitoring work exterior to the SCIF ‘that may affect SCIF 
security’ is, again, broader than the limited interpretation advanced by ECCI” (gov’t 
br. at 44-45; finding 10),  Appellant’s responsive brief fails to address the import of 
this argument.  The government is correct.  SSMS work required in contiguous areas 
was within the scope of the contract. 
 
Appellant also relies upon deposition testimony of Administrative Contracting 
officer Steve Kim to support its argument.  Appellant asserts that “[t]he directive to 
perform SSMS work beyond the terms of the Contract was a change under the 
Changes Clause, a fact even acknowledged by the Government’s ACO” (app. br. at 26; 
citing app. supp. R4, tab 4 at 38-39).  However, Mr. Kim’s testimony does not support 
appellant’s argument.  Mr. Kim did not testify that “the directive to perform SSMS 
work beyond the terms of the Contract was a change under the Changes Clause” (id.).  
Rather, Mr. Kim was asked “if during the course of the work the government required 
ECCI to provide security in areas that were not classified and did not require that CST 
oversight, would you consider that to be a change to the contract?”  (app. supp. R4, 
tab 4 at 38).  To which, Mr. Kim answered “Yes” (id. at 39).   
 
Mr. Kim was asked a hypothetical question.  Mr. Kim’s testimony does not 
“acknowledge” that the government here directed appellant “to perform SSMS work 
beyond the terms of the contract.”  Indeed, Mr. Kim was asked “[d]o you have any 
personal recollection of whether the government actually did require the CST 

54 
 
oversight in unclassified areas that didn’t require it according to the labor security 
synchronization matrix?”  In response, Mr. Kim stated, “[n]o recollection.”  (App. 
supp. R4, tab 4 at 39)  Appellant’s allegation that a government contracting officer 
“acknowledged” that the government directed appellant to perform SSMS work that 
was “beyond the terms of the Contract” and “a change under the Changes Clause” is 
simply incorrect. 
 
B.  Question and Answer No. 40.c   
 
In an attempt to bolster its argument, appellant cites to Solicitation question and 
answer no. 40.c, regarding “temporary security facilities,” wherein an offeror inquired 
whether “under the supervision of the CST – ROK21 labor or ROK subcontractors are 
allowed to perform other works for temporary security facilities, such as chain link 
fence for the SSA and project site perimeter and Site Security Manager Office” (app. 
br. at 24; finding 19).  The government’s answer instructs offerors to “follow 
Specification Section 010052 for temporary security requirements,” noting that “[t]his 
work in general does not require CST oversight as stated in the Division 1 
Construction Security Specifications” (finding 19).  Offerors were instructed to 
“[p]lease follow the Labor Synchronization Matrix as it shows ROK Labor and US 
Cleared Labor Responsibilities” (id.). 
 
Appellant argues that, “[i]n preparing its proposal, ECCI reasonably took 
USACE FED’s response to Question Number 40.c at face value to mean that CAG and 
CST monitoring of construction work would not be required in the ‘Unclass Areas’ 
listed in the Labor Security Synchronization Matrix” (app. br. at 24).  The fallacy with 
appellant’s position is that question and answer no. 40.c deals with Specification 
Section 010052, “Temporary Security Facilities and Controls,” and not the permanent 
structures being constructed, to which there was concern about “the implantation of 
clandestine surveillance devices” (61176 R4, tab 3 at 55, 118).
22  As noted by the 
government, “ECCI’s professed reliance is not supported by the Government’s answer, 
which clearly was directed to ‘temporary security requirements’ such as the ‘chain link 
fence for the SSA and project site perimeter and Site Security Manager Office,’ and 
not the main project site involving the permanent construction” (gov’t resp. at 9).  We 
agree.  Appellant’s reliance upon and interpretation of question and answer no. 40.c as 
a basis to conclude that SSMS were to be performed by CSTs only within the 
SCIF/Classified Areas is unreasonable.   
 
                                              
21 We assume that this acronym meant Republic of Korea. 
22 Question no. 35.b asked “[a]s this project involves SCIF and Temporary Security 
Facility, are these still considered ‘classified areas’?”  The government 
responded that “[t]he SCIF is a Classified Area and the Temporary Security 
Facility is not a Classified Area.”  (Finding 18) 

55 
 
C.  Notification of Change – SSM Authority 
 
In its March 14, 2014, Notification of Change, ECCI also raised the issue of 
“SSM authority,” and complained that the standards set forth in ICD 705-1 were “not 
being enforced on-site by the Government’s Site Security Managers,” which ECCI 
considered a changed condition.  (Finding 71)23  The contracting officer’s letter dated 
June 23, 2014, informed appellant in no uncertain terms that “[t]he site security 
manager does not have authorization to request changes to the contract requirements” 
(finding 72).  This should have resolved the matter.  Indeed, it is well established that 
“[t]he Government is not bound by unauthorized acts of its officers or agents,” and 
“[w]here limitations on the authority of representatives of the contracting officer have 
been communicated to the contractor, the contractor acts as a volunteer in following an 
alleged directive and is not entitled to recover from the Government any resulting 
increased costs.”  Metric Constructors, Inc., ASBCA No. 49374, 96-2 BCA ¶ 28,418 
at 141,948.   
 
Yet, in its brief, appellant argues that the government “SSM directed ECCI to 
perform security oversight in all areas contiguous to Classified Areas, at all times,” 
and that the SSM “had contractual authority to oversee and direct performance of all 
SSMS work by ECCI” (app. br. at 24).  As support, appellant cites Specification 
Section 010041, “Construction Security,” paragraph 1.04(A), which requires the 
contractor to “[p]erform required security work when directed by the COR or SSM” 
(finding 12).   
 
Appellant is correct that paragraph 1.04(A) requires ECCI to perform security 
work directed by the government SSM.  However, this requirement is tempered by 
other Contract language which states “[o]nly a warranted Contracting Officer . . . has 
the authority to issue modifications or otherwise change the terms and conditions of 
this contract,” and that “[i]f an individual other than the Contracting Officer attempts 
to make changes to the terms and conditions of this contract you shall not proceed with 
                                              
23 Appellant’s briefs do not address enforcement of ICD 705-1 standards, other than in 
a reference to an email dated March 12, 2014, regarding negotiation of a 
modification, in which an ECCI employee states “there are the usual Contract 
vs. CSP vs. ICD-705- vs. ‘made up rules as they went along’ deviations” (app. 
br. at 4 (citing app. supp. tab 4 at 15)).  In contrast, the government references 
the technical specifications issued pursuant to ICS 705-1, stating that Chapter 4, 
paragraph D.7.m, provides “for monitoring work exterior to the SCIF ‘that may 
affect SCIF security’” (gov’t br. at 45 (citing 62029 R4, tab 18 at 225)); 
finding 10).  The government correctly notes this requirement is “broader than 
the limited interpretation advanced by ECCI – that monitoring is only required 
where there is actual penetration of a SCIF wall or work abutting it (gov’t br. 
at 45).  

56 
 
the change and shall immediately notify the Contracting Officer” (finding 48).24  The 
Contract unambiguously placed appellant on notice that only the contracting officer 
was authorized to change the terms of the Contract.   
 
Appellant acknowledges this clause regarding the contracting officer’s 
authority, and even notes that it acted pursuant to the clause by submitting its 
Notification of Change to the contracting officer (finding 71).  Yet, appellant’s claim 
alleges that “[d]espite the ACO’s attempt to clarify the requirements, the USACE FED 
project team continued to enforce the SSMP requirements stipulated in the CSP that 
goes beyond the Contract to include monitoring of CAA Contiguous Areas regardless 
of whether CAA boundary penetration work is being performed or not” (62029 R4, 
tab 18 at 10).  
 
The record establishes that the contracting officer informed appellant, in 
response to appellant’s inquiry on the subject, that the SSM lacked authority to direct a 
change to the Contract (finding 72).  Any further action by appellant, based upon the 
SSM’s direction on this issue, was at its own peril.  If a contractor informs the 
government of an alleged change to the contract, and the government responds that the 
individual responsible for the alleged change lacks authority to modify the contract, 
the contractor is not then free to simply ignore the government’s response, perform the 
work directed by the unauthorized government employee, and later seek compensation 
for that work.  Sol Flores Const., Div. of Floresol and Co., ASBCA Nos. 32278, 
32726, 89-3 BCA ¶ 22,154 at 111,506-07 (contractor “was not free to ignore the 
direction of the contracting officer and accept the directions of the TRCO [technical 
representative of the contracting officer].  The TRCO had no authority to overrule the 
contracting officer”). 
 
Moreover, it is abundantly clear from the record that ECCI, during Contract 
performance, appreciated the dichotomy between SSM authority and contract change 
authority, as expressed by Mr. Greg Joyce, ECCI Senior Program Manager, in a 
March 22, 2015, email to ECCI’s SSMS subcontractor (finding 73).  In that email, 
Mr. Joyce informed CACI that “Contract Law supersedes security wants” and if the 
government “wants to add security related scope, it will modify the contract to ECC 
accordingly, and ECC will flow down the modification to CACI accordingly.  In 
earlier correspondence that we shared with you, the USACE Contracting Officer’s 
                                              
24 According to appellant, the government’s brief “fails to recognize that ECCI 
complied with this clause and notified the Government’s ACO of the change” 
(app. resp. at 19).  We disagree.  In its Proposed Findings of Fact, Appendix A, 
the government discussed appellant’s March 14, 2014, letter, and noted that the 
contracting officer responded to the letter, stating “[t]he site security manager 
does not have authorization to request changes to the contract requirements” 
(gov’t proposed findings of fact at 47).  

57 
 
letter to ECC, stated just that.”  (Id.)  Mr. Joyce cautioned that “[o]nly USACE can 
modify the Contract documents.  The SSM does not have the authority . . . to modify 
the contract documents, nor impose procedures that incur extra costs beyond those 
contemplated in the contract documents.” (Id.) 
 
D.  Constructive Notice of Change 
 
Appellant argues, presumably in the alternative, that the government was on 
constructive notice of the alleged change to the Contract, stating that “formal written 
notice is not the only way to satisfy contractual notice requirements” (app. resp. 
at 19).
25  As support, appellant asserts that “the Government’s SSM prepared a daily 
log of work and acknowledged in that document that the security oversight was to be 
performed in the contiguous areas” (app. resp. at 19-20).  According to appellant, 
“[t]here can be no doubt that the Government’s security manager’s daily log was an 
official contract record available for the contracting officials to review” (app. resp. 
at 20).  Appellant offers no evidence that “contracting officials” actually reviewed 
these logs.  Of course, appellant’s argument is rendered even more tenuous by the 
contracting officer’s explicit admonition to ECCI that the SSM did not have authority 
to change the contract (finding 72). 
 
E.  Conclusion – ASBCA No. 62029   
 
Appellant’s claim in ASBCA No. 62029 is denied.  Because we find that 
appellant is not entitled to its increased costs allegedly incurred in performing work in 
areas contiguous to the CAA, we need not address whether appellant’s claim, or a 
portion of the claim, is barred by accord and satisfaction because of the parties’ 
modifications to the Contract (findings 57-62), and we do not reach the issue of 
quantum, the sufficiency of appellant’s proof, or its bearing, if any, on the issue of 
entitlement. 
 
  
                                              
25 Appellant cites two decisions of the Court of Federal Claims, neither of which are 
binding precedent on the ASBCA, for the general propositions that imposition of 
notice requirements require “a certain measure of flexibility,” K-Con Bldg. Sys., 
Inc. v. United States, 131 Fed. Cl. 275, 321–22 (2017), and “notice need not be in 
any particular form,” Engineered Maint. Servs., v. United States, 55 Fed. Cl. 637, 
641 (2003).  Neither decision advances appellant’s cause, given that appellant 
submitted in writing a Notification of Change pursuant to FAR 52.243-4, to 
which the contracting officer then responded (findings 63-64). 

58 
 
CONCLUSION 
 For the reasons stated above, the appeals are denied.   
 Dated:  March 22, 2021 
 
 
 
 
 
 
 
 
 
 
DAVID B. STINSON 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
I concur 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 


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. 61176, 62029, Appeals of 
ECC International LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  March 23, 2021  
 
 
 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals