ECC International Constructors, LLC
Docket: ASBCA 59586, ASBCA 2025
Decision date: 2025-07-29

 ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 
 
In this appeal concerning a contract to design and construct a 20-building 
military compound in Afghanistan, appellant, ECC International, Inc. (ECCI), requests 
$3,512,057 for alleged government-directed contract changes, or constructive contract 
changes, regarding the design of the project’s communications system.  We issued an 
opinion in a companion appeal, ECCI Int’l Constructors, LLC, ASBCA No. 59586, 
2025 WL 1357784 (Apr. 18, 2025), as well as other, related opinions, and assume the 
reader’s familiarity with those opinions.
1 
 
FINDINGS OF FACT 
 
The contract was awarded on September 29, 2010, in the amount of 
$29,186,338, and called for ECCI to design and construct a 70,000 square meter 
compound whose primary facilities included a communications building.  ECCI was to 
complete the work within 548 days of receipt of the notice to proceed.  After 
 
1 E.g., ECC Int’l Constructors, LLC, ASBCA No. 59643, 21-1 BCA ¶ 37967 
at 184,392; rev’d and remanded, ECC Int’l Constructors, LLC v. Sec’y of Army, 
79 F.4th 1364 (Fed. Cir. 2023). 
 
Appeal of - )  
 )  
ECC International Constructors, LLC ) ASBCA No. 59643 
 )  
Under Contract No. W912ER-10-C-0054 )  
   
APPEARANCES FOR THE APPELLANT: R. Dale Holmes, Esq.  
Michael H. Payne, Esq. 
    Cohen Seglias Pallas Greenhall & Furman PC 
    Philadelphia, PA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Martin Chu, Esq. 
Katherine M. Smith, Esq. 
  Engineer Trial Attorneys 
  U.S. Army Engineer District, Middle East 
  Winchester, VA   

2 
 
modifications, the revised contract completion date was March 13, 2013.  ECCI, 
2025 WL 1357784. 
 
 The contract is of the “design-build” type.  Section 3.9 of the contract provides 
that ECCI’s design submittals were required to be submitted for government approval  
at the “Preliminary (65%), Final (95%), and at the Cleared for Construction (100%) 
stage[s].”  Section 3.9.2, “Final Design Review Submittal (95%),” provides that “[t]he 
review of this submittal is to insure that the design is in accordance with directions 
provided the Contractor during the design process,” and that “[t]he only effort 
remaining between the FINAL DESIGN REVIEW SUBMITTTAL and the 
‘CLEARED FOR CONSTRUCTION’ DESIGN REVIEW SUBMITTAL is the 
incorporation of the Government Review Comments.”  Id. 
 
The government approved ECCI’s 95% design on August 23, 2011, providing 
56 comments on the communications design, one of the ten components of ECCI’s 
proposed design.  ECCI submitted its 100% design on November 19, 2011, 
incorporating those comments.  Most of the project’s buildings were cleared for 
construction in December 2011.  However, on December 16, 2011, the government 
disapproved the 100% design, providing 226 new comments on the communications 
design.  The government would require ECCI to submit the 100% communications 
design for review no fewer than three more times before approving it.  Id. 
 
DECISION 
 
 Pointing principally to the communications of James R. (“Chip”) Hopkins, Jr., 
a government employee who authored “the Section 10 portion” of the contract 
specifications related to the project’s communications system, and who is referred to 
by the parties as a “design reviewer,”
2 ECCI brings change claims regarding 
(1) additional and changed outlets, (2) dedicated electrical systems, (3) additional 
government design review requirements, (4) server cabinets and wall-mounted racks, 
(5) “UL Listed communications materials,” (6) “LeGrand raised floor boxes,” 
(7) “non-metallic, UL Listed, surface-mounted raceway,” (8) UL Listed flexible 
conduits and spare conduit, (9) “trunk and splice,” (10) spare capacity and wire 
managers for relay racks, (11) an uninterruptible power supply (UPS), (12) UL Listed 
HVAC equipment with R-410 refrigerant, (13) additional Local Operator Consols 
(LOCs), (14) a resized vehicle maintenance facility, and (15) “144 FOCU Units.”
3  
 
2 Tr. 8/5-6; app. br. at 5 ¶ 24; gov’t br. at 56. 
3 App. br. at 65-92.  This list generally tracks the order and nomenclature of the items 
that ECCI addresses at pages 65-92 of its initial post-hearing brief.  There are 
three exceptions:  (1) item number 14 at page 92 of that brief references the 
relocation of a spoils pile, for which, in ECCI Int’l Constructors, LLC, ASBCA 
No. 59643, 24-1 BCA ¶ 38,490 at 187,085, we awarded $29,680, upon the 

3 
 
ECCI charges that “[d]espite numerous complaints from ECCI that [Mr.] Hopkins was 
directing changes to the contract,” the administrative contracting officer (ACO) and 
the contracting officer’s representative (COR) “failed to investigate the propriety of 
[Mr.] Hopkins’ comments, instead directing ECCI to follow them,”4 and that the ACO 
and the COR “had virtually no knowledge or experience with communications 
systems, continually deferred to [Mr.] Hopkins, and directed ECCI to comply with his 
comments without any due diligence verification.”
5   
 
The contract vests the authority to change the contract in the contracting officer, 
incorporating the full text of Federal Acquisition Regulation (FAR) 52.243-4, 
CHANGES (JUN 2007), which provides: 
 
(a) The Contracting Officer may, at any time, without 
notice to the sureties, if any, by written order 
designated or indicated to be a change order, make 
changes in the work within the general scope of the 
contract . . . 
 
. . . . 
 
(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 . . . .
6 
 
Pursuant to FAR 52.243-4, “a contractor is entitled to an equitable adjustment only for 
those changes ordered or directed by the [c]ontracting [o]fficer.”  Edge Constr. Co. v. 
United States, 95 Fed. Cl. 407, 420 (2010).  Even the contracting officer’s authorized 
 
agreement of the parties; (2) we address, at item number 4, “server cabinets and 
wall-mounted racks” (also referred to as “relay racks”) for which ECCI requests 
(at page 98 of its brief) $170,462, but does not include in the list of change 
claim items that appears on pages 91-92 of its brief; and (3) additionally, we 
address, at item number 16, below, what the government at page 119 of its 
initial brief says is a claim that ECCI has abandoned, concerning ladder rack 
and overhead cable tray.  Finally, in ECCI Int’l Constructors, LLC, 24-1 BCA 
¶ 38,490 at 187,085, we awarded, upon the agreement of the parties, $24,904 
for work on a military working dog kennel, which ECCI addresses on pages  
88-89 of its 2020 initial post-hearing brief. 
4 App. br. at 11 ¶ 58. 
5 Id. at 17 ¶ 69. 
6 R4, tab 5 at 92-93. 

4 
 
representative cannot change the contract:  the contract incorporated Defense Federal 
Acquisition Regulation Supplement (DFARS) clause 252.201-7000,  
CONTRACTING OFFICER’S REPRESENTATIVE (DEC 1991) by full text which 
provides, at subsection b: 
 
The COR is not authorized to make any commitments or 
changes that will affect price, quality, quantity, delivery, or 
any other term or condition of the contract.7  
 
As a result, only the contracting officer had authority to modify ECCI’s contract.  See 
BGT Holdings LLC v. United States, 984 F.3d 1003, 1012-13 (Fed. Cir. 2020); 
Conquistador Dorado Joint Venture, ASBCA No. 60042 et al., 24-1 BCA ¶ 38,486 
at 187,070-71; Derian, Inc., ASBCA No. 62957, 23-1 BCA ¶ 38,425 at 186,757.    
 
1.  Additional Outlets and Changed Outlets 
 
 ECCI requests $1,333,015.53, alleging that: 
 
ECCI was required to install additional communications 
outlets that increased the amount of cables project-wide by 
approximately 62.4%, as well as similarly increasing the 
quantity of keystone modules / connectors and 
terminations, the number or size of raceways, the total 
length of Category 6 cables, and the quantity of patch 
panels.  These increases created constrained workspace 
and clearance issues that impacted labor productivity and 
ECCI’s costs.
8 
  
 ECCI further alleges that: 
 
Based on [the government’s] directive to install additional 
communications outlets and Sage’s calculation of the delay 
resulting from that directive, ECCI met its burden of 
showing 53 days of compensable delay.9 
 
 More specifically, ECCI alleges that: 
 
ECCI was forced to install additional communications 
outlets above those required by the Contract, based on the 
 
7 Id. at 107. 
8 App. br. at 65-66 ¶ 164-65. 
9 Id. at 60. 

5 
 
following improper directives to:  1) round up when 
calculating wall outlets in offices; 2) install the 
configuration of outlets for office space, in all non-office 
space; and 3) install additional outlets in the “raised floors” 
in the TOC.10 
 
 With respect to:  “rounding up,” in his opening statement, ECCI’s 
counsel previewed ECCI’s position that the contracting officer directed 
ECCI to “round up”: 
 
But the roundup issue, which is exactly how many outlets 
you need to have for your design in the building, [the 
contracting officer] didn’t actually tell us that on 
December 13, 2011.  He said there’s something wrong 
with your density, but he doesn’t specify what it is.  Then 
he comes back in June 2012 on the 18th and his specific 
comment says you must round up on all these offices 
then.
11 
 
In addition, ECCI alleges that: 
 
[Mr.] Hopkins directed outlet quantity calculations for wall 
outlets by dividing the area by 4.5 SM, and rounding up to 
a whole number.  ECCI was forced to install 2 wall outlet 
groups in office spaces between 0 and 4.5 SM, 3 wall 
outlets groups in office spaces between 4.5 SM and 9.0 
SM, etc.12 
 
ECCI also says that Mr. Hopkins “changed the configuration of wall outlets in non-
office spaces,”13 and that the contracting officer “confirmed this directive by directing 
ECCI to follow all of [Mr.] Hopkins’ comments.”14  Finally, ECCI says that 
Mr. Hopkins directed that ECCI “install additional outlets in the ‘raised floors’ in the 
TOC,”15 and the contracting officer “confirmed this directive by directing ECCI to 
follow all of [Mr.] Hopkins’ comments.”16 
 
 
10 Id. at 20 ¶ 91. 
11 Tr. 1/72 (emphasis added). 
12 App. br. at 20-21 ¶ 93. 
13 App. br. at 21 ¶ 98. 
14 Id. at 21 ¶¶ 98-99. 
15 Id. at 20 ¶ 91. 
16 Id. at 21 ¶¶ 98-99. 

6 
 
 In support of these allegations, ECCI cites Exhibit 1, the 44-page, 256-
paragraph, single-spaced, sworn statement of Scott A. Hayward, an ECCI Senior 
Program Manager,17 who states that “ECCI requested and received Contracting Officer 
direction on several issues in February 2012,” citing two documents:18  (1) a 
February 12, 2012 letter from ECCI to the government requesting contracting officer 
direction,19 and (2) an overall site plan drawing.20  Neither document is evidence of 
contracting officer direction.  Mr. Hayward also cites design comment 4329574, which 
appears not to exist, at least in the document of record to which Mr. Hayward points. 21 
 
 In general, ECCI alleges that: 
 
[Mr.] Hopkins was improperly given unchecked authority 
to act on behalf of [the government] on the 100% 
communications design.  Despite numerous complaints 
from ECCI that Hopkins was directing changes to the 
contract, [the government’s] ACO and COR repeatedly 
failed to investigate the propriety of Hopkins’ comments, 
instead directing ECCI to follow them.
 22 
 
ECCI fails to identify either by quotation or otherwise, in any of the documents it 
cites, any direction by the contracting officer regarding outlets, much less does ECCI 
demonstrate that such direction constitutes a change to the contract.  ECCI cites a 
lengthy string of documentary evidence that it does not explain or even quote; much 
less does ECCI demonstrate through those documents that the government gave 
Mr. Hopkins “unchecked authority to act on behalf of” the government with respect to 
the 100% communications design.
23  For example, ECCI cites a statement by 
Mr. Hopkins that “[a]ll room outlet calculations need to be reviewed to ensure the 
number meets the requirements of the 01 80,”24 but Mr. Hopkins was not a contracting 
officer, and that statement merely indicates that the contract be followed.  Elsewhere, 
ECCI refers to “the Contracting Officer’s and [Mr.] Hopkins’ directives,” “including 
the direction to round up outlet quantity calculations,” again citing, without 
 
17 Id. at 65-66 ¶ 164; ex. 1 at 1. 
18 Ex. 1 at 10 ¶ 43. 
19 R4, tab 217. 
20 R4, tab 200. 
21 Ex. 1 at 18 ¶ 81 (citing R4, tab 755). 
22 App. br. at 11 ¶ 58 (emphasis added). 
23 Id.  
24 R4, tab 755 at 36, comment 4329398. 

7 
 
explanation or quotation, several documents of record.25  ECCI also cites 
Mr. Hopkins’ statement that: 
 
The Contractor needs to go back and calculate outlet 
quantities in the offices.  The Contracting officer has 
directed the Contractor to follow the specifications on 
outlet density and this building has a density of one 
standard outlet configuration of each system for every 
4.5 meters of office space.  There are no fractional outlets, 
so there are offices that require one more standard outlets 
configuration.
26 
 
That statement, however, is, again, not one of the contracting officer, nor does it 
expressly or explicitly attribute to the contracting officer the idea that the parties refer 
to a “rounding up”; that is, that “[t]here are no fractional outlets, so there are offices 
that require more than one standard outlet.”  Much less does that statement identify 
where the contracting officer directed that ECCI “round up.” 
 
 Regarding whether the contract actually requires “rounding up,” section 10.16 
of the contract, “Outlets Densities,” provides: 
 
One secure network outlet, one above secret network outlet 
and one NIPR net outlet per every 4.5 square meters of 
office space.
27 
 
The plain language of section 10.16 does not provide for any “rounding up” in the 
event that dividing an office’s square footage by 4.5 square meters results in other than 
a whole number.  Rather, as we have already, previously illustrated in ECC Int’l 
Constructors, LLC, ASBCA No. 59138, 19-1 BCA ¶ 37,281 at 181,387: 
 
[I]f an office measures 4.5 square meters, the office shall 
have one secure network outlet, one above secret network, 
and one NIPR net outlet; if an office measures more than 
4.5 square meters but fewer than 9 square meters, one of 
each; if 9 square meters, two of each; and so on. 
 
 Regarding outlet configuration, ECCI also says that Mr. Hopkins “directed that 
wall outlets in any non-office location be configured the same as the office wall 
outlets,” and that the contracting officer “confirmed this directive by directing ECCI to 
 
25 App. br. at 12-13 ¶ 61(4). 
26 R4, tab 883 at 8-9, comment 4676194. 
27 R4, tab 5 at 462, subsections (a), (d), (g)-(i); see also subsection (c). 

8 
 
follow all of Hopkins’ comments.”28  In support of that allegation, ECCI cites a 
February 21, 2012 letter from Contracting Officer Michael A. Duncan, in which 
Mr. Duncan responds to ECCI’s February 12, 2012 letter, citing several documents.29  
In that February 21, 2012 letter, the contents of which ECCI does not discuss in any 
detail, Mr. Duncan addresses many items, including outlets; but ECCI does not point 
to where, if at all, in that letter, Mr. Duncan directed that ECCI (referring now to all 
three of ECCI’s allegations in this part of its appeal) (1) round up when calculating 
wall outlets if offices, (2) install the configuration of outlets for office space, or 
(3) additional outlets in “raised floors.”
30  Nor do we find such direction upon our own 
examination of that document. 
 
 In support of its allegation that the government directed ECCI to follow all of 
Mr. Hopkins’ comments, ECCI cites the December 6, 2012 letter of ACO John Long.
31  
On December 5, 2012, ECCI wrote to ACO Long regarding seven comments that ECCI 
had received from government reviewers of its communications systems designs, “to 
request [c]ontracting [o]fficer direction to resolve the issues associated with the 
reviewer’s direction to perform work” that ECCI stated “was not in our contract.”
32  Of 
the items at issue here, those comments concerned only (1) outside plant configuration 
(OSP); (2) 25% spare capacity; and (3) wire managers for relay racks.
33  In his 
December 6, 2012 letter, ACO Long wrote to ECCI in response to its December 5, 
2012 letter: 
 
It should be clearly noted that the Government does not 
consider any of the design comments received by ECCI to 
be outside the current contract requirements nor are they 
issues that require Contracting Officer direction.  
However [sic] should ECCI continue to believe that any of 
the current comments or future comments is not within the 
current contract requirements it is contractually imperative 
that ECCI provide timely notice to the Government while 
moving forward with the comments provided.
34 
 
 
28 App. br. at 21 ¶¶ 98-99 (citing R4, tab 211 (a letter from ECCI); tab 220 
(February 21, 2012 letter from the contracting officer), tab 345 (letter from an 
authorized COR), tab 367 (a letter from a COR), 384 (a letter from an ACO)). 
29 Id. at 21 ¶ 99 (citing R4, tab 220). 
30 R4, tab 220. 
31 App. br. at 21 ¶ 99 (citing R4, tab 384). 
32 R4, tab 382 at 1. 
33 Id. at 1, 3 (comments 1 and 6). 
34 Id. at 1 (emphasis added). 

9 
 
 We interpret Mr. Long’s statement as contracting officer direction, express or 
implied, that ECCI implement the seven design reviewer comments addressed in 
ECCI’s December 5, 2012 letter, including because that statement was made in 
response to ECCI’s explicit request for “contracting officer direction to resolve the 
issues associated with the reviewer’s direction to perform work.”  The contracting 
officer’s advice to ECCI that if it “continu[ed] to believe that any of the current 
comments or future comments is not within the current contract requirements,” “it is 
contractually imperative that ECCI provide timely notice to the Government while 
moving forward with the comments provided” does not change our view:  that 
statement expressly directs ECCI to move forward with the reviewer’s comments.35  
However, none of the seven comments in ECCI’s December 5, 2012 letter concerns 
the additional outlets and changed configurations that are the subject of this part of 
ECCI’s appeal.  Nor will the Board scour the record for evidence supporting ECCI’s 
argument.  See ESCgov, Inc., ASBCA No. 58852, 17-1 BCA ¶ 36,772 at 179,189; 
Highland al Hujaz, ASBCA No. 58243, 16-1 BCA ¶ 36,336 at 177,169-70.  ECCI 
fails to demonstrate that the government changed the contract regarding “additional 
outlets and changed configurations,” and we accordingly deny ECCI’s request for 
additional compensation for this item. 
 
2.  Dedicated Electrical Panels in Telecommunications Rooms 
 
 ECCI seeks $28,638.85 for what it says was a government change to the 
contract requiring it to install dedicated electrical panels in communications rooms, 
and alludes to “a directive to install dedicated electrical panels in communications 
rooms.”
36  ECCI also alleges that “[o]n June 12, 2013, after much of the electrical 
work was installed, [the government] requested dedicated electrical panels in the 
communications rooms.”
37  Finally, ECCI alleges that “[o]n September 10 and 11, 
2013, [the government] directed ECCI to install dedicated electrical panels in the 
communications rooms of the TOC and JOC only.”38 
 
 On June 12, 2013, ECCI wrote to the government that “ECCI was recently 
directed to install dedicated electrical distribution panels for each Communications 
 
35 Id.  
36 App. br. at 26 ¶ 127, 66; see app. br. at 20 ¶ 90 (citing app supp. R4, tabs 255, 1185, 
1189, 1190; ex. 1 at 38 ¶¶ 217, 220; ex. 19 at 23 ¶ 1; tr. 5/66-66, 76-77, 99, 
153-54). 
37 Id. at 23 ¶ 111 (citing R4, tab 538; ex. 1 at 38 ¶ 215; ex. 19 at 21 ¶ 3). 
38 Id. at 24 ¶ 113 (citing R4, tab 5 at 461; app. supp. R4, tabs 254, 255). 

10 
 
Room on the project.”39  On September 11, 2013, ACO Peter Gauer, referencing that 
June 12, 2013 letter, stated that: 
 
The Government did not respond to this letter because as 
stated above the Government’s position is that this is a 
contract requirement per the original request for proposals 
solicitation so there is no need by the Administrative 
Contracting Officer or the Contracting Officer to direct the 
Contractor to do what has been interpreted by the 
Government to be in your contract.
40 
 
 We need not decide whether Mr. Gauer’s statement constitutes contracting 
officer direction, express or implied, that ECCI install dedicated electrical distribution 
panels.  As the government points out,
  the contract provides that certain publications 
listed in the contract “form a part of this specification”; that is, paragraph 10.1.1 of the 
contract, “to the extent referenced.”41  The publication “I3A (2010) Technical Criteria 
for Installation Information Infrastructure Architecture,” is one of those publications 
referenced, and the contract incorporates the I3A in its entirety. 42  The I3A, ¶ 2.2.15, 
provides: “[p]rovide a dedicated electrical panel for each TR,” with “TR” meaning 
“telecommunications room.”43  ECCI does not address the I3A, ¶ 2.2.15.  Because the 
contract, by referencing the I3A, requires dedicated electrical panels in each 
telecommunications room, we deny ECCI’s claim for $28,638.85 for dedicated 
electrical panels for communications rooms. 
 
Alternatively, we determine that in 2013, ECCI conceded away its dedicated 
electrical panels claim.  In its 2020 reply brief, ECCI challenges the government’s 
contention that ECCI had previously conceded whether the contract requires dedicated 
electrical panels in telecommunications rooms.44  Indeed, in responding to a 2016 
government summary judgment motion regarding whether the contract requires 
dedicated electrical panels, ECCI stated that it “concedes this issue and will revise its 
claim accordingly at the quantum stage.”45  ECCI attempts to walk away from that 
concession, citing Clearmeadow Inv. v. United States, 87 Fed. Cl. 509, 529 (2000), for 
the point that “a party may concede a fact for purposes of its own summary judgment 
motion and yet reserve the right to litigate that fact should its motion be overruled,” 
 
39 R4, tab 538. 
40 App. supp. R4, tab 255 at 1. 
41 Gov’t br. at 22; R4, tab 5 at 450-51 § 10.1.1. 
42 R4, tab 5 at 450.  The transcript of the hearing references the I3A as “the IAAA.”  
E.g., tr. 8/198. 
43 R4, tab 826 at 11 § 2.2, 27 § 2.5.15. 
44 App. reply at 96; gov’t br. at 107. 
45 ASBCA No. 59138 et al. app. Oct. 3, 2016 resp. at 100. 

11 
 
and noting that the Board did not rule upon that part of the government’s motion. 46  
However, ECCI did more than make a strategic concession for purposes of advancing 
a summary judgment motion, cf. Casitas Mun. Water Dist. v. United States, 102 Fed. 
Cl. 443, 445 n.2 (2011) (describing defendant’s concession in support of ultimately 
unsuccessful pursuit of summary judgment as “behind us”):  ECCI abandoned the 
entirety of its dedicated electrical panels claim in response to the government’s motion 
for summary judgment.  Having done so, we determine in the alternative that ECCI 
abandoned its claims for compensation related to dedicated electrical panels for 
telecommunications rooms. 
 
3.  Alleged Additional Design Review Costs 
 
 In a claim that is companion to a delay claim that we decided in ECCI, 
2025 WL 1357784, ECCI requests $246,101, consisting of $24,022 for conference 
calls, $146,397 for additional design review comments, and $41,857 for design project 
management, allegedly incurred by its designer, Atkins Global, for what ECCI says 
were “over 60 design conferences, in person and telephonic, caused by [Mr.] Hopkins’ 
improper design review,” including the government’s “improper issuance of new 
design comments on the five 100% design submittals.”
47  In ECCI, 2025 WL 1357784 
(footnotes omitted), we held that: 
 
In response to ECCI’s 95% design submission, the 
government made 56 comments, on the communications 
design.  When ECCI responded with a 100% 
communications design that incorporated those 
56 comments, ECCI was entitled to the approval of that 
design, and clearance for construction.  Instead, the 
government responded with 226 new comments, triggering 
a delay period that we conclude is attributable to the 
government. 
 
We concluded that ECCI was “entitled to the remission of 119 days of liquidated 
damages for excusable delay.”  Id.  Applying the reasoning behind that conclusion, we 
determine that ECCI is entitled to recover the cost of responding to the government’s 
review of the 100% communications design. 
 
 The three amounts that ECCI seeks for this item correspond to three unrounded 
figures—$24,021.54, $146,396.70, and $41,857.45, totaling $212,275.69—that appear 
in a spreadsheet
48 that was prepared by the project manager for Atkins Global, 
 
46 App. reply at 96. 
47 App. br. at 66 ¶ 169, 67 ¶ 171-72. 
48 App. supp. R4, tab 329 at 4. 

12 
 
Ms. Terry Suehr, whom we credit, and who testified that those unrounded figures 
represent the costs of the additional design services that Atkins Global incurred 
responding to the government’s comments upon ECCI’s 100% communications 
design.49  To that ECCI adds markups for its total request of $246,101.50  The 
government apparently challenges Ms. Suehr’s work, and by extension ECCI’s 
damages calculation, as “nothing more than speculation,”51 pointing to Ms. Suehr’s 
explanation to ECCI that: 
 
For JanCom’s effort, I was not able to receive a 
breakdown, but I did have a total.  I guessed that the best 
way to divide their effort across tasks, but you may want to 
revise this.52 
 
 “The ascertainment of damages is not an exact science, and where 
responsibility for damage is clear, it is not essential that the amount thereof be 
ascertainable with absolute exactness or mathematical precision:  ‘It is enough if the 
evidence adduced is sufficient to enable a court or jury to make a fair and reasonable 
approximation.’”  Bluebonnet Sav. Bank, F.S.B. v. United States, 266 F.3d 1348, 1355 
(Fed. Cir. 2001) (quoting Elec. & Missile Facilities, Inc. v. United States, 416 F.2d 
1345, 1358 (Ct. Cl. 1969); see also Missouri Dep’t of Soc. Servs., ASBCA No. 61121, 
19-1 BCA ¶ 37,240 at 181,278.  Ms. Suehr’s inclusion of $5,632.94 for “JanCom” into 
her $212,275.69 calculation53 is supported by the sworn statement of John Jankowski 
(whom the government accepts is JanCom’s president54), who declared under oath that 
the breakdown of JanCom costs reflected in Ms. Suehr’s spreadsheet “generally 
appears to be a reasonable estimate of the relative effort required for each of the 
identified issues.”55  We credit that $5,632.94.  ECCI claims a 5.4% G&A rate and a 
10% profit rate, which it says are approved by DCAA (Defense Contract Audit 
Agency), which are reflected in an ECCI spreadsheet,56 and which the government 
does not challenge.  We credit those rates, and award the requested $246,101 for this 
item. 
 
 
49 See app. br. at 5 ¶¶ 27-28; ex. 11 at 7-12; app. supp. R4, tab 329 at 1, 4; tr. 4/10-13. 
50 App. br. at 67 ¶ 172. 
51 See gov’t br. at 72-73. 
52 Id. at 72 ¶ 92. 
53 App. supp. R4, tab 329 at 4.  
54 Gov’t br. at 73 ¶ 93. 
55 Ex. 15 at 4. 
56 App. br. at 66 ¶ 165 & n.12; app. supp. R4, tab 321 at “Added Work Direct Cost 
Summary. 

13 
 
4.  Server Cabinets, Relay Racks, and Modification No. 13 
 
 In an example of the problematic briefing provided by both parties in this 
appeal, the government says that ECCI was “completely compensated” for server 
cabinets and relay racks by Modification No. 13 (which ACO Long issued unilaterally 
on January 13, 2013), and that ECCI is entitled “to additional costs incurred in excess 
of the $300,000 provided in Modification No. 13,”57 admitting that the $300,000 that 
the government provided for this work was not enough.  See generally, ECCI, 
2025 WL 1357784 (regarding admissions; collecting cases).  Despite that admission, 
the government only questions, without offering any alternative, the additional amount 
that ECCI seeks for the work that the government unilaterally directed:  $146,963 for 
materials, shipping, and labor, plus markups for a total of $170,472.
58  Again, it is 
enough if the evidence adduced is sufficient to enable a court or jury to make a fair 
and reasonable approximation.  Bluebonnet, 266 F.3d at 1355.  ECCI provides a 
breakdown of the additional amount it seeks in a detailed spreadsheet created by 
Mr. Hayward, whose presentation we credit on this point;59 we find that spreadsheet 
adequate to the task.  However, when we apply the markups that ECCI has identified 
(5.4% G&A and 10% profit),60 we arrive at $170,388 (rounded).  For these reasons, 
we determine that ECCI is entitled to recover $170,388 for server cabinets and relay 
racks. 
 
5.  UL Listed Material 
 
 ECCI requests $207,893 for what it says was a government-directive 
constructive change to the contract that only UL (Underwriters Laboratories, Inc.) 61 
Listed communications materials be provided, as opposed to requiring that only 
specific communications materials be UL Listed.62  However, ECCI fails to allege 
that—much less point to evidence that—the alleged directive came from a contracting 
officer; rather, ECCI again points the finger at Mr. Hopkins.63  Because ECCI fails to 
point to a contracting officer directive that only UL Listed materials be provided, 
ECCI’s request for additional compensation for this item is denied. 
 
 
57 Gov’t br. at 96-97; app. br. at 69 ¶ 183; R4, tab 26. 
58 Gov’t br. at 97; see app. br. at 69 ¶ 186.   
59 App. supp. R4, tab 321 (Racks): “Cabinet Unilateral and Relay Rack Directed 
Changes”; tr. 2/56-57; ex. 1 at 25 ¶ 123. 
60 App. br. at 66 ¶ 165. 
61 R4, tab 5 at 442-43 § 9.3.1. 
62 See app. br. at 69-72 ¶¶ 187-95. 
63 Id. at 70 ¶¶ 192-93; app. reply at 71. 

14 
 
6.  LeGrand Raised Floor Outlet Boxes 
  
 ECCI requests $62,325 associated with the installation of LeGrand raised floor 
outlet boxes that ECCI says were needed to accommodate a government directive that 
ECCI revise its electrical distribution system to meet British Standards (BS). 64  
Specifically, ECCI says that Mr. Hopkins “directed that ECCI provide LeGrand 
Evolution Series raised floor boxes.”
65  Again, Mr. Hopkins was not the contracting 
officer, so no direction by him could change the contract. 
 
 In addition, the government points to Modification No. 14, a May 2013 bilateral  
Modification that provides: 
 
Contractor shall provide all material, supplies, equipment, 
design and labor necessary to construct and or install the 
electrical system components associated with contract 
change MN032 in accordance with British Standard 
7671.
66 
 
The government points also to the following “closing statement” set forth in 
Modification No. 14, which statement the government says bars ECCI’s claim for 
additional compensation for having to install LeGrand floor boxes to meet the British 
Standard: 
 
It is understood and agreed that pursuant to the above, the 
contract time is not affected, and the contract price is 
increased a stated above, which reflects all credits due the 
Government and all debits due the Contractor.  It is further 
understood and agreed that this adjustment constitutes 
compensation in full on behalf of the Contractor and its 
Subcontractors and Suppliers for all costs and markups 
directly or indirectly attributable for the change ordered, 
for all delays related thereto, for all extended overhead 
costs, and for performance of the change within the time 
frame stated.
67 
 
We agree that the second sentence of the closing statement applies to ECCI’s 
LeGrand floor boxes claim, in that any cost arising from having to install those floor 
boxes is, in the parlance of the statement, “attributable for the change ordered” by 
 
64 App. br. at 72-74. 
65 Id. at 72 ¶ 197; see also id.at 17 ¶ 72 (citing app. supp. R4, tab 69), 42. 
66 R4, tab 28 at 2; gov’t br. at 91 ¶ 161. 
67 R4, tab 28 at 4 (emphasis added); gov’t br. at 91 ¶ 161. 

15 
 
Modification No. 14; such change being that ECCI “provide all material, supplies, 
equipment, design and labor necessary to construct or install the electrical system 
components associated with contract change MN032 in accordance with British 
Standard 7671.”  Certainly, that closing statement does not expressly exempt LeGrand 
raised floor boxes from the scope of the modification, nor does Modification No. 14 
anywhere else reserve LeGrand raised floor boxes from its scope.  See United States v. 
William Cramp & Sons Ship & Engine Bldg. Co., 206 U.S. 118, 128 (1907)  
(“If parties intend to leave some things open and unsettled, their intent to do so should 
be made manifest.”).  Furthermore, we see no ambiguity in the language of 
Modification No. 14 that would warrant our accepting ECCI’s implied invitation to 
consider parol evidence to interpret the scope of the modification.
68  See Avant 
Assessment, LLC, ASBCA No. 58867, 15-1 BCA ¶ 36,137 at 176,384.  For all these 
reasons, this component of the appeal is denied. 
 
7.  Non-Metallic Raceways 
 
ECCI requests $71,788 for what it says was the government’s directive that 
ECCI use “non-metallic raceway” for cable routing in certain applications, instead of 
the metallic raceway or cable tray that ECCI says it had planned to use. 69  ECCI says 
that the contract did not require the use of non-metallic raceways, but that Mr. Hopkins 
issued the challenged directive.70  However, nowhere does ECCI allege that a 
contracting officer directed the alleged change;71 consequently, ECCI fails to point to a 
person with authority to have made the alleged contract change.  See BGT Holdings, 
984 F.3d at 1012-13; Conquistador Dorado, 24-1 BCA ¶ 38,486 at 187,070-71; 
Derian, 23-1 BCA ¶ 38,425 at 186,757.  Accordingly, ECCI’s request for additional 
compensation for non-metallic raceways is denied. 
 
8.  Flexible Metal Conduit, and Additional Conduit 
 
 ECCI requests $178,166 for what it says was the government’s directive that 
the flexible metal conduit that ECCI installed be “UL Listed,” and that ECCI provide 
“a spare empty conduit for the raised floor outlets.”
72  In its opening brief, ECCI points 
only to Mr. Hopkins as the source of this alleged directive, rather than a contracting 
officer.
73  In its reply brief, ECCI says that the ACO “directed the spare and extra 
conduits be provided,”74 but ECCI having raised that issue for the first time in its reply 
 
68 App. br. at 73 (citing app. supp. R4, tabs 193, 288, 290). 
69 App. br. at 75-76. 
70 Id. at 75 ¶ 210. 
71 See id.at 74-76; app. reply at 69-71. 
72 App. br. at 77 ¶¶ 224, 227. 
73Id. at 77-78. 
74 App. reply at 72. 

16 
 
brief, that issue is waived.  Brooks Range Contract Servs., Inc. v. United States, 
101 Fed. Cl. 699, 708 (2011) (“[A] party waives issues not raised in its opening 
brief.”). 
 
 ECCI having failed to demonstrate that a person with authority directed the 
alleged contract changes, its request for additional compensation for providing 
(1) flexible metal conduit that was UL Listed (as opposed to non-UL Listed), and 
(2) spare conduit, is denied.  See BGT Holdings, 984 F.3d at 1012-13; Conquistador 
Dorado, 24-1 BCA ¶ 38,486 at 187,070-71; Derian, 23-1 BCA ¶ 38,425 at 186,757. 
 
9.  Trunk and Splice Outside Plant Configuration, and 25% Spare Fibers 
 
ECCI seeks $75,026 for having to configure cables in a “trunk and splice” 
outside plant (OSP) configuration, as opposed to the “homerun” configuration that 
ECCI says its designer chose,
75 and for having to provide “25% spare fibers in the 
trunk line.”76  Regarding the “trunk and splice” versus “homerun” configuration, we 
understand from the parties that the terms “trunk and splice” and “loop-through 
splicing” are synonymous.77 As noted above regarding dedicated electrical panels, the 
contract incorporates the I3A.78  Paragraph 3.15.4.7(c) of the I3A, “Splices and Power 
Budget” provides: 
 
Loop-through splicing shall be used in lieu of 
homeruns/dedicated cables to the serving location.
79 
 
And paragraph 3.7.8.4 of the I3A, “Fabric-mesh Innerduct,” provides: 
 
Fiber optic cables shall not be “home run” from buildings 
to serving nodes because of the increased modularity of 
fabric type innerducts.
80 
 
ECCI does not address ¶¶ 3.7.8.4 and 3.15.4.7(c).  We determine that ¶¶ 3.7.8.4 and 
3.15.4.7(c) defeat ECCI’s claim for additional compensation for having to configure 
OSP cables in a trunk and splice configuration. 
 
 
75 App. br. at 79-80 ¶¶ 239, 242, 244. 
76Id. at 79 ¶ 243. 
77 App. reply at 75-76; gov’t br., app’x 16 at 74. 
78 R4, tab 5 at 450. 
79 R4, tab 826 at 75 (emphasis added). 
80 Id. at 53 (emphasis added). 

17 
 
 Regarding spare fibers, the government points to § 10.17 of the contract, 
“Outside Plant Cable Installation,”81 which provides: 
 
The cable system shall have a factor of 25% spare built in 
additions of service without installing addition [sic] 
physical Outside plant cable.82 
  
ECCI addresses § 10.17, but not its reference to the “25% spare” factor. 83  We 
determine that § 10.17 defeats ECCI’s claim for additional compensation for having to 
provide “25% spare fibers in the trunk line.” 
 
10.  Spare Capacity and Wire Managers for Relay Racks 
   
 ECCI requests $29,084, stating that “[t]he direction to provide additional spare 
rack space and wire managers constitutes a constructive change causing direct costs 
for redesigning the racks and installing additional materials,” referencing only alleged 
direction from Mr. Hopkins.
84  The government says that “ECCI’s post-hearing brief 
claims costs due to direction to provide additional spare rack and wire managers, 
but”—presumably referring to ECCI’s May 2, 2014 claim to the contracting 
officer85— “the claim makes no such demand regarding spare rack.”86  The 
government further states that “[i]t is not clear the amounts attributable to each claim 
and it would be speculation to assign any amount for wire managers.” 87  ECCI replies 
that: 
 
[The government] incorrectly argues that ECCI’s post 
hearing brief claims costs due to providing spare racks, but 
the claim does not.  (Citation omitted).  Both the claim and 
ECCI’s revised cost calculations include costs required to 
revise its design to produce the [text illegible] within the 
racks that were already in the design.88 
 
81 Gov’t br. at 94 ¶ 168. 
82 R4, tab 5 at 464 ¶ 10.17; gov’t br., app’x 1 at 39). 
83 App. br. at 79 ¶ 238. 
84 App. br. at 80-81 ¶¶ 245-51. 
85 R4, tab 75. 
86 Gov’t br. at 104. 
87 Id. 
88 App. reply at 84.  The illegible text referenced in the quotation above is one of many 
instances in which, in ECCI’s reply brief, text appears compressed, 
compromising legibility or making text illegible altogether.  Despite the 
Board’s having ordered ECCI to refile its reply brief to correct that infirmity, 
ECCI refiled what is evidently the same, typographically problematic brief. 

18 
 
We see in the May 2, 2014 claim to the contracting officer that ECCI says that, 
in a reference to Mr. Hopkins, “[t]he Communications systems design reviewer 
directed ECCI to . . . [p]rovide additional relay racks to accommodate additional patch 
panels required because of the additional cables, as well as additional spare rack 
capacity---not required by the contract’” that statement, however, is in reference to 
ECCI’s challenge to what ECCI says is “[t]he unwarranted level and type of comments 
subsequent to the design review comments period.”89  We see no stand-alone claim 
presented to the contracting officer for additional spare rack capacity, and conclude 
that we lack jurisdiction to entertain such a claim; consequently, we dismiss that claim 
for lack of jurisdiction.  See 41 U.S.C. § 7103(a). 
 
 On the other hand, the claim demands $27,093.56 for wire managers.
90  
However, ECCI relies upon the communications of Mr. Hopkins for its government-
direction claim; that reliance is not enough, because, again, Mr. Hopkins was not a 
contracting officer.  Consequently, we deny on its merits ECCI’s claim for additional 
compensation for wire managers. 
 
11.  Uninterruptible Power Supply (UPS) 
 
 ECCI seeks $72,187 ($83,729 with markups) for having to provide a 225 KVA 
UPS unit, instead of a 120 KVA UPS unit (or the 200 KVA UPS unit that ECCI 
alleges the ACO directed be used), later than it would have otherwise.
91  In March 
2011, the parties signed Modification No. A00002 to the contract, making certain 
changes to the work.
92  In a July 2011 letter to ECCI, the ACO took the opportunity to 
address “unresolved critical design issues,” including that, as the ACO put it, “[t]he 
UPS  requirement was deleted from the contract in modification number A00002.” 93  
In the sentence following the reference to the USP requirement, the ACO directed 
ECCI “to proceed with design and construction in accordance with the findings 
above.”94  Although, as the government points out,95 Modification No. A00002 does 
not reference the USP requirement,96 we find that in the July 2011 letter, the ACO  
lifted the requirement to provide a UPS system. 
 
 Nearly two years later, in May 2013, the contracting officer resurrected the UPS 
issue, and, in response to ECCI’s proposal to “base the design on a demand load of 
 
89 R4, tab 75 at 12 (emphasis added). 
90 Id.at 32. 
91 App. br. at 82-83 ¶¶ 255, 256, 258, 262. 
92 R4, tab 9 at 1. 
93 R4, tab 141 at 1-2. 
94 Id. at 2. 
95 Gov’t br. at 105 ¶ 216. 
96 R4, tab 9. 

19 
 
120 KVA,”97 the contracting officer directed that ECCI provide a UPS system “sized 
for a 200 KVA demand load (168 KVA x 1.20).98  That is, the government having 
changed the contract in July 2011, to eliminate the UPS requirement, the government 
changed the contract again, in May 5, 2013; this time to require a 200 KVA UPS. 
 
 The contracting officer also left open the possibility of paying for expedited 
delivery costs: 
 
 
It is requested that we receive a proposed 
procurement/delivery schedule as soon as possible from 
ECCI to include option for expedited delivery (if needed) 
to meet the proposed turnover date for the 
Communications Building of 21 July 2013.  If there is an 
option for proposed expedited delivery costs, the 
Government will address as soon as possible to include a 
potential modification to the contract if warranted.99 
 
 In response, ECCI agreed to provide a 200 KVA UPS system, and warned that 
“the additional cost of the larger system, not including expedited delivery or delay 
costs, will exceed $100,000.”
100  ECCI claims to have provided a 225 KVA unit at an 
apparent increased cost of $83,729.101  However, as the government points out, 
ECCI’s claim indicates that it purchased a 200 KVA unit that was “upgradable to 
225 KVA.”102 
 
 At least at some point after contracting, ECCI understood that, pursuant to 
section 9.1.1 of the contract, it would have to design and construct a UPS.
103  And it 
appears that at some point, ECCI understood that the system would consist of 
government-furnished equipment, and that the UPS system would consist of a 
200 KVA unit.  Indeed, Sheet Reference No. P3-E-601, dated November 18, 2011, and 
submitted by ECCI’s designer, Atkins Global, includes the notation “200KVA” as part 
of a “UPS Room,” with “Equipment by Gov’t.”
104  ECCI does not claim here that it 
bid the contract understanding that the UPS system would be government-furnished, 
and we find that the concept of government-furnished equipment post-dates the 
 
97 R4, tab 485 at 1. 
98 R4, tab 489. 
99 Id.  
100 R4, tab 495 at 1 (emphasis added). 
101 App. br. at 82-83 ¶¶ 256, 262. 
102 Gov’t br. at 106 ¶ 221; R4, tab 75 at 113. 
103 R4, tab 5 at 441. 
104 Gov’t br., app’x 8 at 48-49. 

20 
 
parties’ entering the contract.  However, based upon Sheet Reference No. P3-E-601, 
we find that ECCI understood at least as late as November 2011, that it would be 
installing a 200 KVA unit.  Consequently, the issue here is not that ECCI is entitled to 
compensation for having provided a 200 KVA system, but whether ECCI is entitled to 
the difference between the cost of providing a 200 KVA system after May 2013, when 
the government reinstated the contract requirement to provide a UPS system that in 
2011, it had eliminated.  A spreadsheet in ECCI’s claim provides a credible basis for 
such compensation:  $5,946 for airfreight, and $5,200 for “late rework,” 105 for a total 
of $11,146, which, marked up to $12,922 (rounded), we award for this item. 
 
12.  United Laboratories (UL) Listed HVAC Equipment With R-410 Refrigerant 
 
 ECCI seeks $861,998 for an alleged change to the contract to require ECCI to 
provide UL Listed HVAC equipment and meet an accelerated completion date.
106  
ECCI says: 
 
On June 18, 2012, [the government] disapproved ECCI’s 
May 29, 2012 construction submittal proposing additional 
CE marked HVAC equipment that used R22 refrigerant; 
ECCI was directed to provide UL listed equipment with 
R410 refrigerant.107 
 
ECCI also says: 
 
On November 20, 2012, [the government] directed ECCI 
to provide UL listed HVAC equipment, with R-410 
refrigerant.  ECCI promptly submitted UL listed 
equipment with R410 refrigerant, but did not receive 
review comments from [the government] for 55 days.
108 
 
Specifically, ECCI says that “[Mr.] Hopkins continuously directed ECCI to provide 
only UL communications materials.”109  Of course, Mr. Hopkins was not the 
contracting officer, and none of the material that ECCI cites is a statement of a 
contracting officer.  The alleged November 20, 2012 “direction” by the government 
referenced above is apparently an interaction between the government and ECCI 
 
105 R4, tab 75 at 113. 
106 App. br. at 87 ¶ 289. 
107 Id. at 85 ¶ 280 (citing app. supp. R4, tabs 581, 594; ex. 1 at 35 ¶¶ 193, 195). 
108 Id. at 86 ¶ 285 (citing app. supp. R4, tab 143 at 2, R4, tab 381; exs. 1 at 35 ¶¶ 198, 
26). 
109 Id. at 70 ¶ 193. 

21 
 
during a meeting held on that date, during which, according to notes of the meeting 
prepared by ECCI, the following happened: 
 
HVAC Specifications and Equipment Submittals – MED / 
Marmal RO has directed ECCI provide UL equipment and 
R410 refrigerant.  ECCI is proceeding and will submit an 
REA for the additional cost and time impact.110 
 
ECCI makes no effort to identify who “MED / Marmal RO” is, much less does ECCI 
represent that such person is a contracting officer.  The Board will not scour the record 
for ECCI’s evidence, or do ECCI’s work for it.  See ESCgov, Inc., ASBCA No. 58852, 
17-1 BCA ¶ 36,772 at 179,189; Highland al Hujaz, ASBCA No. 58243, 16-1 BCA 
¶ 26,336 at 177,169-70.  ECCI has failed to demonstrate that the government, in the 
person of the contracting officer, directed ECCI to use R-410 refrigerant.  
Consequently, we deny ECCI’s request for compensation for having used R-410 
refrigerant. 
 
13.  Additional Local Operator Consoles (LOCs) 
 
 ECCI requests $16,806 for what it says was the government’s requirement that 
ECCI install three additional LOCs in the TOC.
111  Citing exhibit 1 at 40 ¶ 231, ECCI 
states that the government “directed ECCI to install three additional LOCs in the TOC, 
based upon an Army requirement for minimum travel distance needed to reach a 
LOC.”112  That paragraph states, in its entirety: 
 
The Government argues that ECCI’s design was deficient 
because the UFC have criteria for an “Army” project 
regarding the maximum distance [an] occupant can travel 
to an LOC and that criteria dictated an LOC in each of the 
four TOC rooms.
113 
 
We find no evidence of government direction in that paragraph, and will not scour the 
record for such evidence.  See Parsons Evergreene, LLC v. Sec’y Air Force, 968 F.3d 
1359, 1368; McCotter Motors, Inc., ASBCA Nos. 30498, 30997, 86-2 BCA ¶ 18,784 
at 94,647 (“The days of simply alleging every conceivable theory and leaving it up to 
the Board to search for facts and law to support the theories are over.”).  Accordingly, 
ECCI’s request for $16,806 for additional LOCs is denied. 
 
 
110 App. supp. R4, tab 143 at 2 (boxed in red in the original). 
111 App. br. at 87-88. 
112 Id.at 88 ¶ 295. 
113 Ex. 1 at 40 ¶ 231. 

22 
 
14.  Vehicle Maintenance Facility (VMF) 
 
 ECCI requests $3,514 for what it says was the government’s requirement that 
ECCI reduce the size of the VMF.114  The ACO “directed [ECCI] to develop a process 
to reduce the gross area for the Vehicle Maintenance Shop Building to a maximum 
gross area of 462 sm.”115  That was, apparently, a reduction in size, because ECCI says 
that “[r]educing the size of the VMF caused ECCI $3,031 in additional direct costs, 
$3,514 with G&A and Profit.”116  However, ECCI does not explain how reducing the 
size of the VMF increased its costs, which, as the government implies, is, at least 
apparently, counterintuitive.
117  We find more persuasive the government’s position 
upon this item, and deny ECCI’s request for $3,514 for the reduction of the size of the 
VMF. 
 
15.  144 Port Fiber Optic Combination Units (FOCUS)    
 
ECCI seeks $54,992 for what ECCI characterizes as a directed change by 
Mr. Hopkins to install 144 FOCUs.
118  ECCI also says that in ECC Int’l Constructors, 
LLC, ASBCA No. 59138 et al., 19-1 BCA ¶ 37,281 at 181,388, we held that “the 
directive to install 144 FOCUs was a change.”119  We did no such thing.  Rather, we 
held that: 
 
The contract provides that: 
 
The fiber optic cables shall be terminated in floor mounted, 
four post relay rack combination units that will allow 
splicing and patching within the same enclosure.  The 
enclosures shall be sized to contain a minimum of 48 fibers 
and a maximum of 144 fibers. 
 
The parties disagree on whether the provision requires 
each “enclosure” to be able to contain 144 fibers.  The 
plain unambiguous language of the provision requires that 
“enclosures,” in general, be sized to contain at least 
48 fibers but no more than 144 fibers; it does not require 
that each enclosure be sized to contain 144 fibers. 
 
 
114 App. br. at 89. 
115 R4, tab 183. 
116 App. br. at 89 ¶ 308. 
117 See gov’t br. at 120 ¶ 259. 
118 App. br. at 90. 
119 Id. 

23 
 
ECCI, 19-1 BCA ¶ 37,281 at 181,388 (citations omitted; emphasis added).  Now the 
government says that no contracting officer directed ECCI “to size every FOCU to 
144 fibers.”120  To this, ECCI says that “ECCI was given direction by [Mr.] Hopkins 
in a January 12, 2012 conference call that all FOCUs were to be 144 port units.” 121  
But Mr. Hopkins was a design reviewer,122 not a contracting officer.  ECCI fails to 
point to a person with authority who made the alleged contract change.  See BGT 
Holdings, 984 F.3d at 1012-13; Conquistador Dorado, 24-1 BCA ¶ 38,486 at 187,070-
71; Derian, 23-1 BCA ¶ 38,425 at 186,757; States Roofing Corp., ASBCA No. 55500,  
09-1 BCA ¶ 34,036 at 168,348 (“ROICC’s [(Resident Officer in Charge of 
Construction)] authority to administer the contract did not empower Mr. Haste, a 
member of the ROICC’s senior management, with either express or implied authority 
to modify the contract with a compensable change requiring SRC to provide a full-
time safety person.”); relying upon Winter v. Cath-Dr/Balti Joint Venture, 497 F.3d 
1339 (Fed. Cir. 2007).  Accordingly, ECCI’s request for compensation for the 
installation of 144 FOCU Units is denied. 
 
16.  Additional Ladder Rack and Overhead Cable Tray 
 
 The government says that ECCI has abandoned a claim for at least $36,404.32 
allegedly owed for “additional ladder racks in communications rooms,” and “overhead 
cable tray in the TOC.”
123  The government takes this position because, it says, ECCI 
has not addressed that claim in its post-hearing briefs, and pointing out that in March 
2019, in ECCI, 19-1 BCA ¶ 37,281 at 181,387, we held that the contract required the 
installation of a cable ladder rack around the walls of communications and server 
rooms.124  ECCI does not respond to the argument that it has abandoned that claim.  
Although we see in ECCI’s initial post-hearing brief one reference to ladder racks, and 
several references to cable tray,
125 those references appear to relate to other claims, 
rather than a claim for a least $36,404,32 allegedly owed for “additional ladder rack 
around the perimeter of the communications rooms,” and “overhead cable tray on the 
TROC due to additional outlets.”  We find any such claim abandoned.  See SmithKline 
Beecham Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006) 
 
 
120 Gov’t br. at 101. 
121 App. reply at 81(citing R4, tab 755 at 99, comment 4329792; tab 1165 at 12 
¶ “FOCU 1”). 
122 See app. br. at 5 ¶ 24; gov’t br. at 48. 
123 Gov’t br. at 119. 
124 Id. 
125 E.g., app. br. at 12 ¶ 61 (ladder rack and cable tray in context of design review), 
74 ¶ 205 (cable tray in context of non-metallic raceways); 92 (listing alleged 
contract changes including “direction to install non-metallic raceways from the 
wall outlets to cable trays for the secret and above secret systems”). 

24 
 
CONCLUSION 
 
We have considered the parties’ other arguments and find them unnecessary to 
address.  We dismiss for lack of jurisdiction ECCI’s claims for additional 
compensation for additional spare rack capacity.  We sustain the appeal in the amount 
of $429,411, consisting of (1) $246,101 for the cost of responding to the government’s 
review of the 100% communications design; (2) $170,388 for server cabinets and relay 
racks, and (3) $12,922 for the uninterruptable (UPS) system, plus interest in 
accordance with 41 U.S.C. § 7109, from May 2, 2014, the date that the contracting 
officer received ECCI’s claim, until the date of payment.   
 
 Otherwise, the appeal is denied.  
 
 Dated:  July 29, 2025 
 
 
 
 
 
 
 
 
 
 
 
 
TIMOTHY P. MCILMAIL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 MICHAEL N. O’CONNELL 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
  

25 
 
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. 59643, Appeal of ECC 
International Constructors, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  July 29, 2025 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals