ECC International Constructors, LLC
Docket: ASBCA 59138, ASBCA 59586
Decision date: 2019-01-24

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
ECC International Constructors, LLC ) 
) 
) 
Under Contract No. W912ER-10-C-0054 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 59138, 59586 
59643,60284 
R. Dale Holmes, Esq. 
Amy M. Kirby, Esq. 
Cohen Seglias Pallas Greenhall & Furman PC 
Philadelphia, PA 
Michael P. Goodman, Esq. 
Engineer Chief Trial Attorney 
Sarah L. Hinkle, Esq. 
Matthew Tilghman, Esq. 
Engineer Trial Attorneys 
U.S. Army Engineer District, Middle East 
Winchester, VA 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE PARTIES' 
CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT 
The parties cross-move for summary judgment on whether, when a third party 
controlling a military base interfered with access to a compound that the government 
contracted appellant to build outside the base, an express contract warranty was breached, 
entitling appellant to recover for a constructive change to the contract. 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTIONS 
The following is not in dispute. In 2010, the parties contracted for appellant to 
construct a compound outside the International Security Assistance Force (ISAF) military 
base in Afghanistan (app. mot. at 1-2, ,i 2, at 7, ,i 28; gov't resp. at 7, ,i 28). ISAF is not an 
agency of the United States Government (see app. mot. at 9, ,i 40; gov't resp. at 8, ,i 40). 
The contract provides that "[t]he Compound will be sited ... on a dedicated area located 
outside the perimeter fencing of the existing base" (app. mot. at 2, ,i 3 (§ 01 10 00.12 10, 
,i 1.2); gov't resp. at 1, ,i 3 ). A contract drawing also depicted that the project location 
would be outside the base security perimeter (see app. mot. at 2, ,i 4 (Drawing C-1 ); gov't 
resp. at 1, ,i 4). The contract provides that: 
I 
f 

The Contractor shall erect a temporary security fence around 
the construction limits of the project to establish a secure area. 
Access to this secure area shall be controlled by the 
Contractor's security forces.... The Contractor shall sequence 
construction to complete the majority of the work outside the 
base perimeter fence before cutting the base perimeter fences 
to install gates, connector road, and communications tie-in as 
shown and described in this contract. 
(App. mot. at 2-3, ,r,r 5-6 (§ 00800, ,r W); gov't resp. at 2, ,r,i 5-6, at 18, ,r 90, at 27) 
The contract also provides that: 
Prior to mobilization, the Contractor shall submit the proposed 
means of providing project security to prevent unauthorized 
access to equipment, facilities, materials and documents, and 
to safeguard them against sabotage, damage and theft. The 
Contractor shall be responsible for physical security of all 
materials, supplies, and equipment of every description, 
including property which may be Government-furnished or 
owned, for all areas occupied jointly by the Contractor and the 
Government, as well as for all work performed. 
(App. mot. at 8, ,r 33 (§ 01 31 13.12 10, ,r 1.5); gov't resp. at 8, ,r 33) Initially, appellant 
performed its work on the compound outside the base security fence, not subject to base 
security procedures, and provided the security measures that the contract required, 
including temporary fencing, necessary to secure the compound; however, in 2012, ISAF 
( 1) completed an expansion of the base security fence that encompassed the contract work 
site; and (2) exercised its authority to establish, monitor, and enforce all of the strict base 
security procedures at the contract work site (see app. mot. at 8-10, ,r 35 (,r,r 1.3.1.7, 1.5, 
2.7.1, Drawings C-2 - C-12), ,r,r 36, 43, 45; gov't resp. at 8-9, ,r,r 35-36, 43, 45). 
DECISION 
Relying upon the contract provisions and drawings referenced above, appellant 
requests summary judgment that the actions of the ISAF breached an express warranty that 
( 1) the contract work would take place outside the base perimeter; (2) appellant would 
control security and access to the contract work site; and (3) appellant would control when 
the contract work site would be "tied-in" to the base and be subject to base security 
procedures, constituting a constructive change to the contract (app. mot. at 16-20, 30). The 
government cross-moves for summary judgment that, among other things, "[t]he change to 
2 
I 

the security posture of the ... Compound was not a constructive change to the Contract for 
which [appellant] is entitled to Compensation," which is a portion of the relief requested 
under ASBCA No. 59138, and in essence, Count I of appellant's complaint in ASBCA 
No. 59586 (gov't resp. at 43, ,i IV). Summary judgment shall be granted if the movant 
shows that there is no genuine dispute as to any material fact and the movant is entitled to 
judgment as a matter of law. Avant Assessment, LLC, ASBCA No. 58867, 15-1 BCA 
ii 36,067 at 176,127 (citing FED. R. CIV. P. 56(a)). 
A breach of a contract warranty may constitute a constructive change to a contract's 
terms. See Johnson & Son Erectors, ASBCA No. 24564, 81-1 BCA ,i 15,082 at 74,599; 
Mergentime Corp. v. Washington Metropolitan Area Transit Authority, No. CIV. 89-1055 
TFH, 2006 WL 416177, at *89 (D.D.C. Feb. 22, 2006) (unpublished opinion). However, 
absent fault or negligence or an unqualified warranty on the part of its representatives, the 
government is not liable for damages resulting from the action of third parties. 
Oman-Fischbach International (JV) v. Pirie, 276 F.3d 1380, 1385 (Fed. Cir. 2002). Unless 
the parties in unmistakable terms agreed to shift the risk of increased costs due to acts by the 
ISAF, no liability on the part of the government attaches from such acts. See id. 
Upon review of the motions and supporting materials, we conclude that the parties did 
not agree in unmistakable terms that the government would assume the risk of increased 
costs resulting from acts of the ISAF that affected access to the work site prior to appellant 
cutting the base perimeter fences. Consequently, when the ISAF encompassed the contract 
work site within the base security fence, and enforced base security procedures at the 
contract work site, there was no breach of a contract warranty, and no constructive change to 
the contract, that might have entitled appellant to recovery. Cf Oman-Fischbach, 276 F .3d 
at 1384 (rejecting implied warranty claim where contractor did not identify any contractual 
provision under which the Navy assumed the risk of increased costs resulting from any acts 
of the Portuguese Armed Forces); !AP Worldwide Services, Inc., ASBCA No. 59397 et al .. 
17-1 BCA ,i 36. 7 63 at 179 .161 (rejecting appellant's contention that the government 
warranted its access to the border and breached that commitment when Pakistan closed the 
border): Contrack International, Inc., ASBCA No. 59917, 16-1 BCA ,i 36,532 at 177,955 
(denying summary judgment on implied warranty theory where appellant did not identify 
any contract language in which the government expressly warranted that the Afghan 
National Army would remove vehicles from work site). Appellant relies (app. mot. at 16: 
app. reply at 14) upon JE. McAmis, Inc., ASBCA No. 54455 et al., 10-2 BCA ,i 34,607 
at 170,570, where we held that an implied warranty that haul routes were available was 
breached when a county government imposed limitations upon that availability. However. 
we found JE. McAmis distinguishable from Oman-Fischbach. McAmis, I 0-2 BCA , 34,607 
at 170,570. By contrast, we find no meaningful distinction between this case and 
Oman-Fischbach, !AP Worldwide, or Contrack. Accordingly, we deny appellant's motion 
for partial summary judgment, and grant the government's request for partial summary 
judgment that '"[t]he change to the security posture of the.-.. Compound was not a constructive 
change to the Contract for which [appellant] is entitled to Compensation." 
3 

CONCLUSION 
Appellant's motion for partial summary judgment is denied; the government's 
cross-motion for partial summary judgment on the issue of entitlement with regard to 
ASBCA No. 59138 and Count I of ASBCA No. 59586 is granted to the extent set forth 
above. An order addressing further proceedings in these appeals will follow. 
Dated: January 24, 2019 
I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
~M~ 
Administrative Judge 
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 Nos. 59138, 59586, 59643, 60284, 
Appeals of ECC International Constructors, LLC, rendered in conformance with the 
Board's Charter. 
Dated: 
4 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals 
I 
I t 
r 
I