ECC International Constructors, LLC
Docket: ASBCA 59586
Decision date: 2022-05-02

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE GOVERNMENT’S 
MOTION FOR RECONSIDERATION 
  
 The government moves for reconsideration of our January 6, 2022 opinion in this 
appeal concerning the construction of a military compound in Afghanistan.  ECC Int’l 
Constructors, LLC (ECCI), ASBCA No. 59586, 22-1 BCA ¶ 38,028 at 184,683.  We 
assume familiarity with that opinion. 
 
 In deciding a motion for reconsideration, we examine whether the motion is based 
upon newly discovered evidence, mistakes in our findings of fact, or errors of law.  
Phoenix Data Sols., LLC f/k/a Aetna Gov’t Health Plans, ASBCA No. 60207, 18-1 BCA 
¶ 37,165 at 180,930.  In addition, we are obligated to assure ourselves that we have 
jurisdiction to entertain an appeal.  Betance Enters., Inc., ASBCA No. 62819,  
21-1 BCA ¶ 37,881 at 183,980. 
 
 In our January 6, 2022 opinion, we dismissed the government’s claim for 
liquidated damages for lack of jurisdiction, and dismissed appellant’s claim for liquidated 
damages as moot, without prejudice, concluding that “we see no liquidated damages issue 
Appeal of - )  
 )  
ECC International Constructors, LLC ) ASBCA No. 59586 
 )  
Under Contract No. W912ER-10-C-0054 )  
   
APPEARANCES FOR THE APPELLANT: R. Dale Holmes, Esq.  
Michael H. Payne, Esq.  
  Cohen Seglias Pallas Greenhall & Furman 
    Philadelphia, PA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Sarah L. Hinkle, Esq. 
Geoffrey A. Mueller, Esq. 
Matthew Tilghman, Esq. 
Kathryn G. Morris, Esq. 
    Engineer Trial Attorney 
    U.S. Army Engineer District, Middle East  
    Winchester, VA 

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to adjudicate on its merits.”  ECCI, ASBCA, 22-1 BCA ¶ 38,028 at 184,683.  We 
explained: 
 
The parties each claim $940,274 in liquidated damages 
ostensibly withheld by the government and arising from this 
contract for the design and construction of a military 
compound in Afghanistan. . . . The government has the 
burden of proving that the Board possesses jurisdiction to 
entertain its claim for liquidated damages by demonstrating 
that the assessment of liquidated damages is memorialized in 
a timely final decision by a contracting officer.  The 
government does not demonstrate that a contracting officer 
has issued a final decision assessing liquidated damages.  
The government’s post-hearing reply brief references a 
January 18, 2014 contracting officer’s final decision, but that 
decision addresses appellant’s request for a time extension 
and more than $800,000; that decision does not assess 
liquidated damages against appellant.  Because the 
government does not satisfy its burden to establish our 
jurisdiction to entertain its claim to liquidated damages, that 
claim is dismissed for lack of jurisdiction.  Consequently, 
what the government says is $940,274 in liquidated damages 
is actually, at least at this point, a contract balance 
presumably owed to appellant. 
 
Id. (internal citations omitted). 
 
 The government says that it agrees that there was “no liquidated damages issue to 
adjudicate on its merits” (gov’t mot. at 1), but says: 
 
Where we part ways with the decision is with the premise that 
the government ever bore any burden to establish jurisdiction 
in the first place.  The Board opines that in order to retain the 
liquidated damages that the government has collected on this 
contract, the government needed to establish this Board’s 
jurisdiction.  Accordingly, after concluding that the 
government did not establish jurisdiction, the Board 
concludes, in dicta, that “what the government says is 
$940,274 in liquidated damages is actually, at least at this 
point, a contract balance presumably owed to appellant.”  We 
respectfully disagree that the government owes that balance 
to ECCI, and for that reason submit this motion for 
reconsideration. 

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(Id. )  The government continues: 
 
the Board erred as a matter of law that the Government had 
the burden of proving jurisdiction over [appellant’s] claim for 
remission of liquidated damages, and erred in holding that, 
with the Board’s dismissal, “what the government says is 
$940,274 in liquidated damages is actually, at least at this 
point, a contract balance presumably owed to appellant.”  
  
Id. at 7 (emphasis added). 
 
 The government also says that “the government has not actually submitted a claim 
for liquidated damages to this Board” (id. at 3 (emphasis added)).  If it hasn’t, it certainly 
sounds like it has.  In their post-hearing briefing, both appellant and the government 
claimed $940,274 in liquidated damages (see gov’t br. at 40 (“The government is entitled 
to $940,274 in liquidated damages, as established above.  See, supra, Section entitled 
‘Government’s Claim for Liquidated Damages.’”); app. br. at 111-12).  In paragraphs 9 
through 14 of its post-hearing brief, which the government wholly ignores in requesting 
reconsideration, the government explained: 
 
GOVERNMENT’S CLAIM FOR LIQUIDATED DAMAGES 
 
9.  The Contract established liquidated damages in the 
amount of $2,338.99 for each calendar day of delay after the 
project’s completion date. R4, Tab 5, p. 39, ¶ 52.211-12. 
 
10.  The project’s final completion date was February 22, 
2013, established by Modification P00016.  R4, Tab 30. 
 
11.  On January 18, 2014, the Contracting Officer found that 
ECCI was entitled to a time extension of 19 days, which was 
not incorporated into the Contract by modification.  R4, 
Tab 2.  The revised completion date should be March 13, 
2013. 
 
12.  Work substantially completed on April 19, 2014, with 
turnover and acceptance of the JOC and Communications 
buildings.  R4, Tab 727. 
 
13.  The difference between the revised contract completion 
and actual substantial completion dates, March 13, 2013, and 
April 19, 2014, is 402 days. 

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14.  The amount of liquidated damages for the delay of 
402 days is $940,273.98. 
 
The government is entitled to the amount of $940,273.98 in 
liquidated damages because ECCI completed the project 402 
days late.  As shown below, the government was not 
responsible for any of the delay in completion of the project. 
 
(Gov’t br. at 3)  And in its post-hearing sur-reply brief, which the government also 
ignores, the government further explained that: 
 
“The assessment of liquidated damages is a government claim 
and the government has the initial burden of proving that a 
contractor failed to meet the contractual completion date and 
that the period of time for which it assessed liquidated 
damages was correct.”  . . .  The Government has met this 
burden. 
 
(Gov’t sur-reply br. at 1) 
 
 In view of the government’s representations in its post-hearing briefing, we deny 
the government’s motion to reconsider to the extent that the government has, perhaps 
inadvertently, asserted the type of liquidated damages claim for which the government 
might have the burden to prove jurisdiction.  See ASFA Int’l Constr. Indus. & Trade, Inc., 
ASBCA No. 57880, 14-1 BCA ¶ 35,736 at 174,906.  But that is not the end of the story.  
The briefing on the motion to reconsider persuades us that in arriving at our January 6, 
2022 opinion, we overlooked that in May 2021 post-hearing briefing addressing our 
jurisdiction to entertain the government’s liquidated damages claim, both parties point to 
an April 9, 2014 pay estimate (R4, tab 816) in which the administrative contracting 
officer assessed and withheld $940,273.98 in liquidated damages for 402 days of delay 
(gov’t May 11, 2021 br. at 2; app. May 11, 2021 br. at 1).
1  That April 9, 2014 action 
                                              
1 In its May 11, 2021 brief, the government elaborated upon its claim to liquidated 
damages, requesting “that the Board find that it possesses jurisdiction to hear the 
Government’s claim for liquidated damages to the extent that the Board finds it 
possesses jurisdiction to hear Appellant’s claims for time extensions” (gov’t 
May 11, 2021 br. at 7).  And in its May 19, 2021 filing, the government requests 
“that the Board find that it possesses jurisdiction to hear the government claim for 
liquidated damages only to the extent that the Board finds it possesses jurisdiction 
to hear Appellant’s claims for time extensions based on excusable delay” (gov’t 
May 19, 2021 br. at 2).  Earlier, in a May 2021 post-hearing brief addressing the 
Board’s jurisdiction to entertain appellant’s claim to the remission of liquidated 

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means that the government has actually (not just ostensibly) withheld the $940,274 in 
liquidated damages that both parties have claimed in this appeal, and that we erred in 
concluding (1) that as a result of our dismissal of the government’s claim for lack of 
jurisdiction, there is “no liquidated damages issue to adjudicate on its merits,” and 
(2) that “[c]onsequently, what the government says is $940,274 in liquidated damages is 
actually, at least at this point, a contract balance presumably owed to appellant.”  Because 
the government has withheld the liquidated damages, there is still before us appellant’s 
claim to the remission of that withholding.2  See R.R. Gregory Corp., ASBCA 
No. 58517, 14-1 BCA ¶ 35,524 at 174,110-11 (contracting officer withheld liquidated 
damages before definitizing that assessment in a final decision; contractor appealed, and, 
as proponent of the claim, which claim first accrued upon withholding, contractor had the 
burden of proving the Board’s jurisdiction).    
 
 For these reasons, the government’s motion for reconsideration is denied in part 
and granted in part, and our January 6, 2022 opinion is amended to delete from that 
opinion (1) the last sentence of the second paragraph of the opinion, and (2) the last 
paragraph of the opinion.  In a separate opinion we will address (1) appellant’s claim to 
the remission of liquidated damages withheld on April 9, 2014; and (2) the government’s 
position regarding its entitlement to keep those liquidated damages. 
 
 Dated:  May 2, 2022 
 
 
 
 
 
 
 
(Signatures continued) 
                                              
damages, the government stated that “[w]hile Appellant has described remission 
of liquidated damages in the amount of $940,274.00 as a contractor claim for 
delay damages, ECCI post-hr’g br., at 110-11, it is in fact the Government’s claim 
to assessment of liquidated damages, to which Appellant must present an 
affirmative defense” (gov’t May 7, 2021 br. at 15 (emphasis added)).  
 
2 We understand that the government asserts entitlement to keep the liquidated damages 
that appellant requests be remitted (see gov’t br. at 3, 40; gov’t sur-reply br. at 1-3; 
app. br. at 111, 117).  We also understand that although appellant in at least one 
point in its post-hearing briefing requests the remission of the entire $940,274 
withheld, elsewhere it requests remission of only 400 days’ worth of that 402-day 
amount (app. br. at 111, 117). 
 
 
 
TIMOTHY P. MCILMAIL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

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I concur 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 
 I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 59586, Appeal of ECC 
International Constructors, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  May 3, 2022  
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals