Garco Construction, Inc.
Docket: ASBCA 57796, ASBCA 57888
Decision date: 2015-09-22

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
Garco Construction, Inc. ) 
) 
Under Contract No. W912DW-06-C-0019 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 57796, 57888 
Steven D. Meacham, Esq. 
John V. Leary, Esq. 
Peel Brimley, LLP 
Seattle, WA 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
Francis X. Eugenio, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, Seattle 
OPINION BY ADMINISTRATIVE JUDGE CLARKE 
Garco Construction, Inc. (Garco), sponsors a pass-through claim by its 
subcontractor James Talcott Construction, Inc. (JTC), for work on a project to 
construct base housing on Malmstrom Air Force Base (MAFB ), Montana. JTC claims 
that the government interfered with its work by changing its base access policy, 
making it much harder for JTC to get access for its workers and depriving JTC of its 
ability to hire from the pool of workers it traditionally used. In our decision dated 
14 January 2014, we granted partial summary judgment in favor of the Air Force 
holding that Col Finan's 22 October 2007 base access memorandum was a sovereign 
act and the Air Force was not liable for damages from that date forward. We left open 
the question of Air Force liability before 22 October 2007 stating "the record is not 
sufficiently developed to allow the Board to grant the motion for the period between 
contract award in August 2006 and issuance of the October 2007 memorandum." 
Garco Construction, Inc., ASBCA Nos. 57796, 57888, 14-1BCA~35,512 at 174,075. 
This decision addresses the period before the 22 October 2007 memorandum. Both 
entitlement and quantum are before us. We have jurisdiction pursuant to the Contract 
Disputes Act (CDA) of 1978, 41 U.S.C. §§ 7101-7109. We deny the appeals. 

FINDINGS OF FACT 
1. In 2002 MAFB access policy was defined in part by the 341 st Space Wing 
Pamphlet 31-101, 15 October 2002, Local Security Policy and Security Procedures for 
Contractors. The pamphlet is annotated "BY ORDER OF THE COMMANDER 
341sT SPACE WING (AFSPC)." It superseded MAFBP 31-209, dated 13 January 
1998. (R4, tab F, subtab 101) There is no indication that the 1998 version was 
changed. 1 This pamphlet included: 
(Id. at 2) 
5. Obtaining Entry Credentials/Passes. Contractors will 
be permitted to enter Malmstrom AFB by following the 
procedures set forth in this pamphlet. ... 
5 .1. Contractor employees must possess identification 
such as a driver's license or company ID card. This 
identification should include, as a minimum, the 
physical description of the individual (i.e., height, 
weight, date of birth, eye and hair color), a picture of the 
individual, and the individual's signature. 
5.2. Upon award of a contract, the contractor will be 
issued an Entry Authority List (EAL) (Attachment 4) 
by the contract administrator in 341 CONS. The 
contractor will need to submit the required information 
for the EAL, to the contract administrator in 341 CONS 
prior to coming to Malmstrom AFB. 
2. The 34pt Space Wing Instruction 31-101,2 26 July 2005, Installation 
Security Instruction, superseded the 18 November 2003 version of341SWI31-101 
(DVD, supp. R4, tab 22 at PDF 1 ). The instruction is annotated with "BY ORDER 
OF THE COMMANDER 3415T SPACE WING." A vertical bar on the left side of 
the text indicated a revision to the 2003 edition. (Tr. 3/149; DVD, supp. R4, tab 22 
at PDF 264) Paragraphs 4.1.5.1. and 4.1.5.1.1. did not have a vertical bar on the left of 
1 Later versions use vertical lines to the left of the text to indicate changes from the 
superseded version. This protocol was not stated in the 2002 version of the 
pamphlet. 
2 This number duplicates the number for the 15 October 2002 pamphlet, Local 
Security Policy and Security Procedures for Contractors, that was changed to 
31-103 on 21July2005 (R4, tab F, subtab 102). 
2 

the text which means there was no change to the 2003 policy (tr. 3/151 ). They read as 
follows: 
4.1.5.1. Prior to entry onto the installation, all General 
contractors must submit a Contracting Entry Authority List 
(EAL) to the contracting office. A contracting officer 
approves the list and hand carries it to the visitors control 
center (VCC) for review. VCC personnel will compare the 
approving official's signature against a DD Form 577, 
Signature Card, or an appropriate letter on file at the VCC. 
4.1.5.1.1. The VCC staff will forward the Contracting 
EAL to the 911 dispatch center. A 911 dispatcher 
certified on the National Criminal Information Center 
system (NCIC) will run the contractor names through 
the NCIC for wants and warrants. After the dispatcher 
completes the NCIC check, they will sign the letters and 
return them to VCC. Unfavorable results will be 
scrutinized and eligibility will be determined on a 
case-by-case basis by the 341 SFS/CC and 341 SFG/CC. 
(Tr. 3/117-18; DVD, supp. R4, tab 22 at PDF 279) The "341 SFS/CC" was the 
security forces squadron commander, Col Asher (tr. 3/191). Since 2008, Mr. Ward has 
been the chief of information protection for the 341 st Missile Wing/MAFB (tr. 3/115). 
Between 2004 and 2008 Mr. Ward was chief, security forces plans and programs 
(tr. 3/116). This position included pass and registration (id.). Mr. Ward confirmed 
that Col Asher personally reviewed the unfavorable results for individuals to determine 
if access would be granted (tr. 3/191-92). 
3. The 34pt Space Wing Pamphlet 31-103, 21July2005, Local Security 
Policy and Security Procedures for Contractors, was derived from 341 st Space Wing 
Pamphlet 31-101, 15 October 2002 (tr. 3/119; R4, tab F, subtabs 101, 102). MAFB, 
341st Space Wing Pamphlet 31-103, 21July2005, established "policy for contractors 
who require entry to the installation" (R4, tab F, subtab 102). The pamphlet is 
annotated "BY ORDER OF THE COMMANDER 341sT SPACE WING." 
Paragraph 5 of the pamphlet deals with entry to the base: 
5. Obtaining Entry Credentials/Passes. Contractors will 
be permitted to enter MAFB by following the 
procedures set forth in this pamphlet. ... 
3 

5 .2 Upon award of a contract, the contractor will be 
issued an Entry Authority List (EAL) (Attachment 
5) by the contract administrator in 341 CONS. The 
contractor will need to submit the required 
information for the EAL, to the contract 
administrator in 341 CONS prior to coming to 
MAFB. Once the letter is received from 341 
CONS, the Visitor Control Center will forward the 
EAL to the 911 Dispatch Center. A 911 Dispatcher 
will run the employees name through the National 
Criminal Information Center system for a wants and 
warrants check. Unfavorable results will be 
scrutinized and eligibility 
will be determined on a 
case-by-case basis by the 341 SFG/CC. 
(R4, tab F, subtab 102 at 2) Paragraph 5.2 has a vertical bar to 
the left of the text 
indicating that it included changes from the previous, 15 October 2002, version of the 
pamphlet (id. at 3). Mr. Ward testified that 341 SFG/CC was Col Asher and that he 
would look only at individuals identified with unfavorable information (tr. 3/156). 
He testified that a "wants and warrants" check with the NCIC is a '"background check" 
(tr. 3/120, 135, 151). Unfavorable results would be serious offences 
such as felonies, 
sexual offenses and people still in the penal system (tr. 3/125). These offenses would be 
highlighted and submitted to the security forces group commander Col Asher (tr. 31123). 
4. On 24 May 2006, JTC submitted its bids to Garco for the concrete 
($8, 110,67 5) and rough framing ($3,417,193) subcontract work in connection with 
Garco's plan to bid on the Phase IV MAFB Family Housing Project (tr. 11178-79; 
DVD, supp. R4, tab 51 at PDF 567, 573, tab 53 at PDF 581, 586). 
5. On 3 August 2006 the U.S. Army Corps of Engineers (COE) awarded Contract 
No. W912DW-06-C-0019 (Contract 0019) to Garco to replace family housing, phase VI, 
at MAFB (R4, tab D at 1-2). MAFB supports the 34151 Missile Wing, one of three U.S. 
Air Force Bases that maintains and operates Minuteman III intercontinental ballistic 
missiles. MAFB is designated a Protection Level 1 (PL 1) installation, the highest 
security level in the Air Force. (Tr. 3/48-49; DVD, supp. R4, tab 25. ~ 2) 
6. The contract included the following FAR clause: 
52.204-9 PERSONAL IDENTITY VERIFICATION OF 
CONTRACTOR PERSONNEL (JAN 2006) 
(a) The Contractor shall comply with agency personal 
identity verification procedures identified in the contract 
4 

that implement Homeland Security Presidential 
Directive-12 (HSPD-12), Office of Management and 
Budget (OMB) guidance M-05-24, and Federal 
Information Processing Standards Publication (FIPS PUB) 
Number 201. 
(b) The Contractor shall insert this clause in all 
subcontracts when the subcontractor is required to have 
physical access to a federally-controlled facility or access 
to a Federal information system. 
(R4, tab D at 30) The contract also included FAR 52.222-3, CONVICT LABOR (id. at 46). 
7. The contract included section 01001, "SUPPLEMENTARY 
REQUIREMENTS," that included: 
1.6 IDENTIFICATION OF EMPLOYEES AND 
MILITARY REGULATIONS: 
(a) The Contractor shall be responsible for compliance 
with all regulations and orders of the Commanding Officer 
of the Military Installation, respecting identification of 
employees, movements on installation, parking, truck 
entry, and all other military regulations which may affect 
the work. 
(b) The work under this Contract is to be performed at 
an operating Military Installation with consequent 
· restrictions on entry and movement of nonmilitary 
personnel and equipment. 
(R4, tab D at 01001-2) 
8. The contract included section 01005, "SITE SPECIFIC 
SUPPLEMENTARY REQUIREMENTS," which included the following: 
1.3 GENERAL AREA REQUIREMENTS 
Security requirements and procedures shall be coordinated 
with the 341 Security Forces Squadron, Resource Protection 
(telephone 406-731-4344 ), Malmstrom AFB. Activities of 
the Contractor and Contractor's employees and 
subcontractors and their employees while on the base, will 
5 

be conducted in accordance with base regulations, including 
those of the fire marshal, as well as security directives .... 
Security directives include Antiterrorism Force Protection 
(paragraph 1.3.4 below) and the GENERAL 
CONTRACTING ENTRY AUTHORITY LIST [EAL] 
attached [at] the end of this Section. This list shall include 
all Contractor personnel working on the base. 
(R4, tab D at 01005-1) 
9. The Notice to Proceed was issued to Garco on 21August2006 (DVD, 
supp. R4, tab 12). 
10. A pre-construction conference was held on 12 September 2006. 
Representatives of Garco and its intended subcontractor JTC attended. (DVD, supp. 
R4, tab 13 at PDF 143-44) 
11. The signed 
version of the minutes of the 12 September 2006 meeting were 
sent out on 27 September 2006 (DVD, supp. R4, tab 13). The minutes included the 
same "Access and Security" paragraph as in the 12 September draft version. but added 
in the "Air Force Briefings" section of the minutes that "[n]o one will be allowed on 
base if not on the EAL list.... The names will be sent to dispatch for background 
checks .... No one with outstanding warrants, felony convictions, or on probation will 
be allowed on base." (DVD, supp. R4. tab 13 at PDF 137-38) In his stipulated 
testimony, Mr. Barnett, Garco project manager. 3 recalled that he attended the meeting 
and the "information" that "[n]o one with outstanding warrants, felony convictions, or 
on probation will be allowed 
on base'' was "stated" during the meeting, but he is not 
sure if the exact words in the minutes were used (ex. G-2, i1 13 ). 
12. On 14 September 2006, JTC's EAL was submitted to Garco (tr. 1/94-95; 
DVD, supp. R4, tab 15), which in tum was submitted to MAFB. Based on the 
individuals' address, Mr. Talcott identified two individuals as residents at the 
pre-release center (tr. 1197). These two individuals were allowed to enter MAFB to 
work for JTC (tr. 1197-99). 
13. On 26 September 2006, JTC signed firm-fixed-price contracts with Garco 
for concrete work (SC#064000-008/$5,033,543) and rough carpentry 
work/framing 
(SC#064000-1 l/$2,975,604) (DVD, supp. R4, tabs 72, 74). Phase VI framing was a 
labor only contract where Garco provided the materials. However, JTC provided labor 
and concrete for the concrete work (tr. 1132). Mr. Talcott recalled that JTC 
commenced concrete work on MAFB in late 2006 or early 2007 (tr. 1/99). Mr. Talcott 
3 Mr. Barnett did not appear at the hearing. 
6 

testified that JTC did not anticipate any difficulty in getting workers for phase VI. 
Phases IV and V were finishing up and JTC was talking to workers who worked on 
those projects. (Tr. 11104-06) 
14. Mr. Talcott testified that JTC had been \vorking on MAFB for 20 years 
and they never had an employee denied base access until this contract (tr. 1/66, 86, 
229). Mr. Talcott stated: 
So I'll get off my soapbox now, but never in the 
20-year plus history -- I don't want to sound repetitive 
here, but never in the dozens of projects that we had 
worked on at Malmstrom Air Force Base with the Corps of 
Engineers, on the missile alert facilities, at the launch 
facilities, weapons storage area or anywhere else for 
Malmstrom Air Force Base or the Corps of Engineers, had 
we ever had anybody turned down that we turned in to 
work on our site. 
(Tr. 1/86) MAFB allowed JTC employees with criminal records or in pre-release 
access to MAFB both before and after release of the 21 July 2005, Pamphlet 31-103 
(tr. 1182-83 ). This practice was still in place \vhen JTC bid on phase VI subcontract work 
(tr. 1183 ). When JTC bid the work they assumed that they would have the same labor 
pool that they had in the past and that they had for contracts JTC was performing at the 
same time (tr. 1/66-67). Mr. Talcott testified that on phase VI, for the first time 
individuals on JTC's EAL were being denied access to MAFB at the visitor's center 
saying, "it's totally contrary to anything that we've seen in the past" (tr. 1/108). JTC did 
not keep track of all of the people that were denied access to MAFB (tr. 1/226, 239, 
2/26-27, 50). 
15. Mr. Talcott testified: 
The troubles were that while we should have been 
in the spring of 2007 putting together our base crews for 
concrete and framing and having them well in place so that 
the 
production system could work for us as we anticipated, 
we were turning in list after list and we're -- I mean, it was 
very interesting to be around our office at that time 
because they were going through hundreds of applicants. 
We were going through dozens and dozens of interviews 
and trying to get manpower on the base because we had a 
general contractor that -- and rightfully so -- saying you're 
getting behind. And we just couldn't get the manpower on 
base. We would send them -- put them on the EAL, we 
7 

would turn the list in to the government, we would send 
them, as called out, to the base Visitor's Center for a pass, 
and they wouldn't get one. So we would send other people 
out there. We went through more employee packets than 
you can imagine, we escorted people to the base to show 
them the process, then we'd be turned down. And the 
frustrating part is we just never had an answer as to why 
they were being turned down. 
So we did the best we could to man up the job, but 
as it 
turned out, we were putting people on the job that 
should never have been on a construction site. We had 
people with zero construction experience that we had to 
hire because when they went to the base Visitor's Center, 
they could get a pass. And the turnover rate was extremely 
high. 
(Tr. 11109-10) Mr. Talcott testified that JTC was not able 
to "man up" with qualified 
people (tr. 11113). JTC had "plenty of bodies out there, but not skilled personnel" 
(tr. 11114). 
16. Mr. Gary Richerson works for JTC and has 
about 26 years of experience 
in construction (tr. 2/53). He was the general superintendent on the phase VI project 
for JTC (tr. 2/54). He did all the hiring for JTC including phase VI contract work 
(tr. 2/93-94). Before JTC started having problems with employee access to MAFB, 
Mr. G. Richerson did not ask applicants about their criminal history (tr. 2/94-95). 
Mr. G. Richerson recalled that "phase VI was a showstopper ... for some reason when 
we hit phase VI, it was hard to get people on [to MAFB]" (tr. 2/56). In phase VI 
access to MAFB became the "driving factor" to hiring decisions (tr. 2/73). 
Mr. G. Richerson recalled that base access started to become a real problem at the end 
of winter 2006 or spring 2007 (tr. 2/79). 
17. Mr. Jason Richerson was project superintendent on phase VI for JTC 
(tr. 2/103, 106). Phase VI was a "very large project" with construction of over 
40 housing units (tr. 21107). He recalled that the contract with Garco was signed in the 
fall and JTC wanted to start the concrete work as soon as possible to 
work during good 
weather (tr. 2/107-08). JTC's work on phase VI was pouring concrete, rough framing 
and roofing (tr. 21110). JTC organized teams ("crews") of five people consisting of 
one crew leader with strong construction and management skills and four journeymen 
members with strong construction skills (tr. 2/111). Even with an experienced crew 
there is a learning curve issue, but with over forty similar building once the crew has 
8 

built one or two they "should be rolling" (tr. 2/112, 125). However, Mr. J. Richerson 
did not expect to have to train crew members on basic construction work (tr. 2/113). 
When JTC started in the fall of 2006 he did not expect to have any difficulty getting 
the kind of crews he needed onto MAFB (tr. 2/115). He recalls that JTC was not able 
to hire from the pool of workers it was accustomed to using because they could not get 
on base (tr. 2/117). JTC had never had that problem before (tr. 2/118). 
Mr. J. Richerson testified that his crews were taking quite a bit longer than anticipated 
to do the work (tr. 2/120-21). Also, he expected to have his crews all ready by late 
spring or early summer of 2007 but because of the base access problem he never really 
got the fully trained and efficient crews during the entire project (tr. 2/127). 
Mr. J. Richerson attributed the high turnover in employees JTC experienced to the 
young age and inexperience of many of the employees and the difficulty associated 
with the work (tr. 2/153). 
18. On 19 February 2007, JTC contracted with Piene Construction, Inc., to do 
framing on the phase VI contract (tr. 11229; DVD supp. R4, tab 63 at PDF 1 ). The 
second tier subcontract value was based on 464,534 square feet of framing work (id.). 
Mr. Talcott testified that 464,534 square feet represented close to the total amount of 
framing (tr. 1/230). 
19. On 9 May 2007, Garco forwarded a letter to the COE, dated 8 May 2007, 
from JTC that stated 
in part: 
Per FAR 52[.]222-3 Convict Labor, this clause allows for 
the employment of persons on parole or probation. 
However, JTC does not understand why these individuals 
are continually being denied base access/passes. The 
unemployment rate in Montana is at a historical low. The 
construction industry is in need of qualified employees and 
these individuals should not be denied access to our 
jobsites. This issue is impacting and delaying JTC's 
performance of this contract. 
(R4, tab E, subtab 102) 
20. On 17 May 2007, JTC emailed Col Geofrey A. Frazier, MAFB, asking if 
JTC could chauffer pre-release convict employees on post and take other precautions 
in order to gain access to the jobsite (DVD, app. supp. R4, ex. 322 at PDF 2). 
Col Frazier responded stating, "Our contracting, legal and security experts are meeting 
early next week to discuss this issue. The goal is to provide recommendations with 
regard to the various needs and requirements. I'll ensure you are briefed on 
Col Finan's direction." (Id. at PDF 1) Mr. Talcott testified that his 17 May 2007 
email to Col Frazier was trying to find a solution to the access problem by allowing 
9 

individuals covered by the convict labor clause access to the base (tr. 1/116-18). He 
recalled one of the responses was that MAFB would not allow sex offenders and 
violent offenders access to the base (tr. 1/119). Mr. Talcott recalled that he agreed sex 
offenders should not be allowed on base, but he wanted clarification on what 
constituted a violent offender (tr. 11119-20). 
21. On or about 21 May 2007 MAFB personnel had an "initial meeting 
·concerning base access for contractors" to prepare options for Col Finan 
(DVD, app. supp. R4, ex. 324 at PDF 2). A talking paper for that meeting included, 
"Current policy prohibits sexual offenders, violent offenders, and offenders currently 
in the penal system (i.e. parole, probation, and pre-release) from access to the 
installation" (id. at PDF 3 ). 
22. By letter dated 21 May 2007 from contracting officer (CO) Carroll to JTC, 
CO Carroll took the following position: 
The ability to grant or deny an individual entry to federally 
controlled property rests with the individual appointed with 
the authority to grant or deny. In the case of Malmstrom Air 
Force Base; this authority is granted to the Wing 
Commander. The Wing Commander makes all decisions to 
grant or deny on a case-by-case basis. However, individuals 
who have been convicted as violent offenders or any sexual 
crime in nature will be denied entry to the installation. 
(DVD, app. supp. R4, ex. 323) Mr. Talcott testified that people who were not sexual 
offenders or violent offenders, people with 
DUI convictions, drug convictions, 
criminal endangerment, etc., were being denied access to MAFB (tr. 11123). 
23. Minutes from a 22 May 2007 Partnering Meeting included the following: 
The issue with using work release enrollees or parolees is 
being discussed with Malmstrom security to try and arrive 
at a consensus as to what level of prior offense \Vill 
exclude someone from receiving a base access pass. At this 
time no one with a prior felony conviction is being 
permitted on base. 
(DVD, app. supp. R4, ex. 327 at PDF 4) Mr. Talcott agreed that MAFB was not allowing 
anyone that ever had a felony conviction on base 
(tr. 11125). Mr. Talcott testified he 
agreed that sex and violent offenders should not be allowed access to MAFB (tr. 1/130). 
As of 22 May 2007, JTC had seven active construction jobs on MAFB that constituted 
33% of active construction jobs on base (DVD, app. supp. R4, ex. 324 at PDF 1). 
10 

24. By email dated 25 May 2007, Ms. Sinclair, Air Force attorney advisor, 
distributed an information paper entitled "BACKGROUND PAPER ON 
CONTRACTOR ACCESS" within MAFB (DVD, supp. R4, tab 29).4 The paper 
includes three options for the commander's consideration and the first option reads, 
"[m]aintain the current policy of no sex offenders, violent offenders or anyone 
currently in the penal system (parole, probation, or pre-release)" (id. at PDF 3). 
MG Finan5 recalled that accurately stated the policy (tr. 3111-12). 
25. By email dated 3 August 2007 from administrative contracting officer 
(ACO) Bradley, to Mr. Ward and Ms. Sinclair, ACO Bradley stated: 
I've had both Talcott and Garco Construction ask me 
during the past few days about the status of the Parollee 
[sic] Labor access issue. They both were wondering if the 
Base has a policy letter regarding access; I told them that 
I'd check on both of these items. Any information that you 
can send me would be appreciated. 
(DVD, app. supp. R4, ex. 329) Mr. Ward testified that the only policy in place at the 
time was found in Pamphlet 31-103 and Instruction 31-101 (tr. 3/183). 
26. In a 31August2007 email from Mr. Ward to Ms. Sinclair, Mr. Ward wrote: 
Talcott called again today wanting to know the status of 
convict labor. I thought this [ w ]as settled, I guess I was 
wrong. He talked to Joanne Bratten and wants to know 
what the definition of violent offenders is, and his contract 
has a convicted labor clause in it. I assume he is talking 
about the FAR. Again, he is allowed to use convict labor, 
but that doesn't guarantee them access to the installation. 
The final decision remains the same. 
No Sexual Offenders 
No Violent Offenders as described as Montana Code 
Annotated 
* Violent offenders are registered with the state, that 
how we find out who is who 
4 The transcript erroneously refers to supp. R4, tab 30 (tr. 3/10). 
5 When she testified at the hearing "Col Finan" had been promoted to Major General. 
11 

* If they are registered. they are not authorized on 
base 
No person currently in the correctional system (Parole or 
under the supervision of a probation ofiicer) 
Please past [sic] this on to COE. Contracting, etc. 
A new wing instruction concerning contractors is currently 
in coordination[.] 
(DVD, app. supp. R4, ex. 395) Mr. Ward testified that this was the policy that was 
being 
enforced through the duration of the project (tr. 3/185). Mr. Ward testified that 
prior to Col Finan's October 2007 memo there was no document that defined what 
would constitute unfavorable information from the NCIC (tr. 3/187). 
27. In a 10 September 2007 email from ACO Bradley to JTC concerning 
parolee labor access to MAFB, ACO Bradley wrote: 
I've received an email from Nancy Sinclair of the JAG 
office. A new policy is being worked on. The Wing 
Commander has been briefed on the issue. Until 
the new 
policy is finalized, the Base has no further news to offer 
regarding the issue. Wish I could offer more insight on 
this. I can tell you that I was at a meeting in the June 
timeframe with COL Finan regarding this issue, and I tried 
to stress to her just how tight the labor pool is right now. 
She was willing to readjust her policy, but she is concerned 
how the change would be implemented so that it is applied 
fairly to all Base contractors. 
(DVD, app. supp. R4, ex. 333) 
28. On 11 September 2007, CO Bryan sent JTC a letter stating: 
1. The contracting office is in receipt of your letter(s) 
regarding FAR 52.222-3/Convict Labor. You are correct 
in the fact that FAR 52.222-3/Convict Labor does allow 
you to use that labor force however, the National Defense 
Act of 1959 gives the Wing Commander the authority to 
enforce security requirements for the base. At this time, as 
stated in our previous letter of 21 May 2007, anyone 
12 

convicted as a violent offender or of a sexual crime will be 
denied access to the installation. 
2. Violent offenders as described in Montana Code must be 
registered with the state and if they are registered with the 
state they are not authorized on Malmstrom AFB. Also, 
any persons in the correctional system, paroled or under 
the supervision of a probation officer are not authorized on 
Malmstrom AFB. 
(DVD, app. supp. R4, ex. 334) Mr. Talcott testified that adding persons "paroled or 
under the supervision of a probation officer" to the list of people who will not be 
allowed on MAFB went beyond violent and sexual offenders (tr. 11131). 
29. On 30 October 2007 ACO Bradley, forwarded to Garco an "updated" 
MAFB policy memorandum on contractor personnel access to MAFB signed by the 
base commander Col Finan, but undated (R4, tab E, subtab 103). An Air Force 
internal email dated 23 October 2007 distributed Col Finan's signed Memorandum for 
all Contractors and Contractor Personnel and stated, "Col Finan signed the letter 
yesterday" (DVD, supp. R4, tab 31 at 1). During the hearing the parties stipulated that 
Col Finan signed her memorandum on 22 October 2007 (tr. 21101-02). The 
memorandum read in part: 
MEMORANDUMFORALLCONTRACTORSAND 
CONTRACTOR PERSONNEL 
SUBJECT: Malmstrom AFB Installation Access for 
Contractor Personnel 
1. In order to preserve good order and discipline and 
safeguard personnel, resources and facilities by the 
authority granted to me by the Internal Security Act of 
1950, this policy is effective immediately for all 
contractors and 
contractor personnel. 
c. The 911 Dispatch Center will input all listed 
employees' name and data into the National Criminal 
Information Center (NCIC) database for a background 
check in accordance with Air Force directives. 
13 

Unfavorable results from the background check will result 
in individuals being denied access to the installation, 
including, but not limited to, individuals that are 
determined to fall into one or more of the following 
categories: those having outstanding wants or warrants, 
sex offenders, violent offenders, those who are on 
probation, and those who are in a pre-release program. 
The definition of sex offender and violent offender can be 
found at Montana Code Annotated§ 46-23-502. 
(DVD, app. supp. R4, ex. 337 at PDF 1) Mr. Ward testified that if an individual had 
•·want and warrant'" come up from the NCIC he vvould be detained and turned over to the 
proper authorities until 
the warrant could be cleared (tr. 31188-89). The individual with 
a "'want and warrant" would not be considered at all for access to the base (tr. 31189). 
30. MG Finan was shown her 22 October 2007 memo, specifically paragraph l .c. 
and asked if she believed it was a "big change." Her response was, "I believe it was a 
large change." (Tr. 3/13; DVD, supp. R4, tab 31)6 She was asked if she thought it was 
"arbitrary" and she testified "Absolutely not. It's standard." (Tr. 3/14) She testified that 
"[t]he intention of the policy was to keep the mission and the people at Malmstrom Air 
Force Base safe and secure" (tr. 3/15). She explained that 
her 22 October 2007 memo 
gave guidance on what was deemed unfavorable results referred to in Pamphlet 31-103 
(tr. 3/48). MAFB access policy was "always to be fair and equally applied to everybody" 
(tr. 3/54). She also testified that once access was granted to an individual, it could be 
revoked at any time (tr. 3115). MG Finan did not review individual's seeking access to 
MAFB (tr. 3/45). She delegated the authority to consider "unfavorable results" to the 
security forces commander, Col Asher (tr. 3/22, 25, 48). 
31. By letter dated 13 November 2007, Garco submitted to the ACO a request 
for equitable adjustment (REA) from JTC, dated 25 October 2007, in the amount of 
$454,266.44 (DVD, app. supp. R4, ex. 341 at PDF 2, 3). JTC explained: 
FAR 52.222-3 CONVICT LABOR (JUN 2003) 
specifically states that we are allowed to hire and employ 
individuals convicted of an offense for this contract. This 
FAR has been in previous contracts, and we planned on 
and used these individuals for other contracts. Because it 
is also in this contract, we based our cost estimates for 
Phase VI on our ability to use these same individuals or 
6 The copy of the memorandum at DVD, supp. R4, tab 31, referred to in the transcript 
is missing the 30 October 2007 transmittal letter. The full document is at R4, 
tab E, subtab 103. 
14 

pool of individuals. There is a nationwide shortage of 
experienced construction workers. It is well documented 
that the problem is even more acute in Montana with our 
very low unemployment rate. 
(Id. at PDF 3) Included with the REA was a list of 28 individuals with construction 
experience that JTC submitted to MAFB but were denied access (id. at PDF 7-8; 
tr. 2/28, 31 ). 
32. On 18 December 2007, CO Gary determined that JTC's REA "has no 
merit" and suggested that if Garco/JTC disagreed they should "pursue resolution per 
the requirements of FAR 52.233-1, DISPUTES" (R4, tab E, subtab 106). 
33. In a 30 January 2009 response to JTC's 18 December 2008 Freedom of 
Information Act request, the Air Force took the position that Col Finan's undated 
memorandum to all contractors concerning base access was signed in August 2006 
"shortly after she assumed Command" (DVD, app. supp. R4, ex. 382 at 1). 
Mr. Talcott testified that he didn't see the memo until October 2007 (tr. 11168). 
34. By letter dated 21 February 2008 to the ACO, Garco requested 
reconsideration of JTC's REA (R4, tab E, subtab 107). 
35. In a 1April2008 letter to Garco concerning JTC's REA, ACO Bradley 
wrote in part: 
We researched the base security restrictions and 
according to Malmstrom Air Force Base personnel and 
documentation dated before March 2006, the security 
restrictions for certain types of convict labor were in effect 
before the August 2006 award of the aforementioned 
contract. The October 2007 policy was a reissue of the 
same restrictions as those implemented shortly after 
September 11, 2001. We have no information that 
indicates the base access policy has changed 
since 
September 2001. 
(DVD, app. supp. R4, ex. 500 at PDF 300) ACO Bradley found no merit in the REA 
(id.). Mr. Talcott testified that this was not true because JTC never had any of its 
employees denied access to MAFB until this contract (tr. 1/163). 
36. By letter dated 24 May 2011, Garco submitted JTC's pass-through claim 
to the COE. Garco's vice president, Mr. Barnett, certified the claim. The claim 
included the following: 
15 

Talcott's bid(s) anticipated staffing the Project with 
experienced and qualified individuals available in the local 
labor pool which typically includes "convict" labor, 
specifically individuals on probation or available 
through 
the Great Falls Pre-Release Center. In the past Talcott has 
successfully employed individuals with minor criminal 
records on a variety of projects including some at 
Malmstrom AFB. Talcott has no history of hiring violent 
or sexual offenders and did not contemplate doing so on 
this Project. 
In preparing its bid for Phase VI framing work, 
Talcott reasonably anticipated achieving its standard 
historical productivity rates. To accomplish this it was 
necessary for Talcott to obtain an experienced and 
qualified labor force. Due to changes in base policies 
regarding the admission of certain individuals onto 
Malmstrom AFB - changes which occurred 
after project 
bid and award but prior to the start of the work - Talcott 
was not permitted to staff the job as planned and was 
seldom able to achieve its normal and expected 
productivity rates. As a direct result of changes to base 
access policies Talcott experienced increased framing 
labor hours and employee turnover well in excess of what 
it reasonably contemplated and allowed for in its bid. 
Changes to base access policy also required Talcott to 
incur substantially increased administrative costs 
associated with locating, processing, hiring and training 
personnel. 
(DVD, app. supp. R4, ex. 500 at PDF 37, 41-42) 
37. By letter dated 12 June 2008 to Garco, JTC again explained its position: 
When our employees were first denied access 
to MAFB in 
early 2007, we asked for an explanation. A response from 
MAFB Contracting Officer Arlene Stem dated May 21, 
2007, informed us that "The Wing Commander makes 
all decisions to grant or deny on a case-by-case basis. 
However, individuals who have been convicted as 
violent offenders or any sexual crime in nature will be 
denied entry to the base." 
16 

However, JTC employees denied access were not violent 
or sexual offenders. 
(R4, tab E, subtab 111 at 2, 3) On 25 June 2008, Garco forwarded JTC's letter to the 
ACO and requested a contracting officer's final decision (id. at 1). 
38. In an undated letter7 by Mr. Lesofski,job developer/system analyst of 
Great Falls Pre-Release Center, to JTC, Mr. Lesofski wrote: 
Per our discussion last week the 19th of May, I 
went back and checked my employer records at the 
Pre-Release Center. I can confirm to you that we had 
many residents working on Malmstrom AFB during the 
new construction period starting in 2001 thru 2005 and 
most of 2006. As you are aware we had residents 
working for you, Atherton Construction and other 
subcontractors. Which was working exceptionally well 
for us, as well as the contractors. We were 
able to insure 
to the contractors that these individuals were tested on a 
weekly basics [sic] for drugs, which provides a better 
work force. During the period that Colonel Finan 
became the base commander approximately 2 years ago, 
[a] Memorandum for all contractors was released from 
her office. The Memorandum stated that Pre Release 
residents would be denied access to work on the base. 
Thus in effect eliminating the opportunity for your 
company and other contractors the use of our trained and 
qualified workers. 
(DVD, supp. R4, tab 14) 
39. By letter dated 12 September 2008 to Garco, the alternate ACO, 
Mr. Gallagher, stated that it had no record of Garco's 25 June 2008 request for a final 
decision and suggested that if Garco/JTC desired a final decision that they should 
submit a certified claim (R4, tab E, subtab 113). 
40. According to the final as-built schedule Garco completed work on the 
contract on 28 July 2009 (DVD, supp. R4, tab 77 at PDF 20). 
7 The copy in the record has a partial fax date at the top reading "y 28, 2008." In 
addition, the reference to "2 years ago" in the letter implies that this letter was 
written in 2008. 
17 

41. On 28 September 2011, Garco appealed, on a deemed denial basis, the 
CO's failure to issue a final decision (R4, tab E, subtab 118). On 29 September 2011 
the Board docketed Garco's appeal as ASBCA No. 57796 that was later consolidated 
with ASBCA No. 57888.8 
DECISION 
Procedural History 
By decision 
dated 14 January 2014, this Board granted partial summary 
judgment in favor of the Air Force. Garco Construction, Inc., ASBCA Nos. 57796, 
57888, 14-1BCA~35,512. We found that Col Finan's 22 October 2007 
memorandum was a sovereign act and the government was not liable in damages that 
may have been caused by the memorandum from 22 October 2007 forward. For the 
period before 22 October 2007 we held: 
For the time period before the October 2007 
memorandum the record is less clear. In its opposition, 
appellant presents an analysis of contemporaneous 
documents detailing the process leading up to COL Finan's 
execution of her October 2007 memorandum. This 
analysis paints a picture of inconsistent explanations of the 
policy. However, it appears that the Air Force was 
consistent about not allowing pre-release convicts on 
MAFB from early 2007 (SOF ~ 8). The record is not 
sufficiently developed to allow the Board to grant the 
motion for the period between contract award in August 
2006 and issuance of the October 2007 memorandum. 
Garco, 14-1BCA~35,512 at 174,074. 
Harm toJTC 
JTC presented ample credible evidence that it was harmed by the Air Force's 
change in its enforcement of its base access policy (findings 15-17, 19-20, 38). We 
conclude from this evidence that JTC was not able to hire as experienced a work force 
as it had in the past and that this had an adverse impact on JTC' s labor hours and 
8 By agreement of the parties, the contracting officer issued a final decision on 
23 November 2011 denying JTC's pass-through claim. A timely protective 
appeal was filed and docketed as ASBCA No. 57888. Both ASBCA 
Nos. 57796 and 57888 concern the same claim. 
18 

associated costs of performance. The Air Force could be liable for this damage unless 
it is protected by the sovereign act defense before 22 October 2007. 9 
The 3 August 2006 to 22 October 2007 Base Access Policy/Sovereign Acts 
We next examine the period from contract award, 3 August 2006 up to the 
22 October 2007 memorandum and decide if the Air Force base access policy during 
that time was entitled to treatment as a sovereign act. 
The pre-22 October 2007 MAFB access policy is embodied in four documents, 
only three of which are in the record. We go back to the 34pt Space Wing Pamphlet 
31-101, 10 15 October 2002, 11 Local Security Policy and Security Procedures for 
Contractors to start this analysis. The only prerequisite for access to MAFB stated in 
the pamphlet is individuals seeking access must be listed on an EAL and have proper 
identification as defined in the pamphlet. There is nothing in this pamphlet requiring a 
background check or identifying a criminal record as a limitation on access to MAFB. 
(Finding 1) This is consistent with JTC's contention that historically MAFB allowed 
individuals with criminal records to work on base. 
The next document is the 34pt Space Wing Instruction 31-101, 18 November 
2003, Installation 
Security Instruction. The record does not include a copy of this 
instruction, but the superseding instruction, dated 26 July 2005, indicates that the 
relevant language in the instruction was not changed from the 2003 version. 
(Finding 2) The 34pt Space Wing Instruction 31-101, 26 July 2005, Installation 
Security Instruction requires that names on the EAL will be run through the NCIC for 
"wants and warrants" and "[ u ]nfavorable results will be scrutinized and eligibility will 
be determined on a case-by-case basis by the 341 SFS/CC and 341 SFG/CC" 
(finding 2). Therefore, from November 2003 the requirement for checking for "wants 
and warrants" and "scrutinizing" unfavorable results existed at MAFB. This is 
consistent with the Air Force's contention that such a policy was in place before 
Contract 0019. 
9 To the extent this is viewed as a "course of dealings" argument by JTC 
(subcontractor), 
it was not between the contracting parties, i.e. Garco and the 
Air Force, as required (see BAE Systems Technology Solutions & Services Inc., 
ASBCA No. 57581, 13 BCA ,-i 35,414 at 173,737) and certainly would not 
defeat the sovereign act defense. 
10 As we stated in footnote 2, this pamphlet was renumbered to 31-103 in 2005. 
11 This pamphlet superseded the 13 January 1998 version and there is no indication 
that there was a change to the 1998 policy (finding 1). 
19 

The "wants and warrants" language in the 2003 version of Instruction 31-101 
was added to the 21 July 2005 version of the 341 st Space Wing Pamphlet 31-103, 
Local Security Policy and Security Procedures for Contractors: 
A 911 Dispatcher will run the employees name through the 
National Criminal Information Center system for a wants 
and warrants check. Unfavorable results will be 
scrutinized and eligibility will be determined on a 
case-by-case basis by the 341 SFG/CC. 
(Finding 3) The 2005 versions of the 34pt Space Wing Pamphlet 31-103 and 34pt 
Space Wing Instruction 31-101 were in effect when Contract 0019 was awarded on 
3 August 
2006 (finding 5). The record reflects that between May 2007 and the 
22 October 2007 memorandum, the Air Force was 
debating internally how to clarify 
what was considered "unfavorable results" and if it was appropriate to balance that 
clarification with the tight labor market in the area (findings 21-29). MG Finan 
testified that her 22 October 2007 12 was not "arbitrary" and simply gave "guidance" on 
what the terms "unfavorable results" in the 341 st Space Wing Pamphlet 31-103 
envisioned (finding 30). 13 
We apply the same standard for sovereign acts we applied in our decision 
granting partial summary judgment. In ME.S., Inc., ASBCA No. 56149 et al., 
12-1 BCA iJ 34,958, aff'd, 502 F. Appx. 934 (Fed. Cir. 2013), the contractor claimed 
costs associated with a change in the base access policy that caused its employees to 
spend an hour each day gaining access to the installation. Citing clauses similar to 
those in Contract 0019 (findings 6-8) and in the preamble of the pamphlets and 
instructions, the Board in ME.S. decided that the change in the base access policy was 
a sovereign act. The Board applied the following criteria: 
With respect to the claimed price adjustment for the 
delay, we have found above that the changed entry 
procedures were required by the installation Security 
Forces Squadron and Air Force Instructions. They were of 
a public and general nature applicable to all contractors at 
the installation. They were intended to improve the 
physical security of the installation, were not intended 
12 We note that on two separate occasions MAFB incorrectly informed JTC that the 
memo was signed in August 2006 and that it was a "reissue" of a policy put in 
place shortly after 11 September 2001 (findings 33, 35). 
13 She also testified that her 22 October 2007 memorandum was a "big change," 
testimony that seems inconsistent with her other testimony and evidence in the 
record (finding 30). 
20 

specifically to nullify contract rights, and they provided no 
economic advantage to the government. (Finding 37) We 
conclude that the changed entry procedures were a 
sovereign act of the government for which no monetary 
compensation is due. See Conner Bros. Construction Co. 
v. Geren, 550 F.3d 1368 (Fed. Cir. 2008). 
Id. at 171,856. The 34pt Space Wing Pamphlet 31-103, 21July2005, Local Security 
Policy and Security Procedures for Contractors and 341 st Space Wing Instruction 
31-101, 26 July 2005, Installation Security Instruction, are each issued by order of the 
MAFB Commander and are required by the installation Security Forces Squadron and 
Air Force 
Instructions (findings 1-3). These documents apply to all contractors and 
contractor personnel, therefore, they are public and general in nature (id.). They were 
intended to improve the physical security of the installation (findings 29. 30). There is 
no evidence that the policy was intended to nullify contract rights or that it provided to 
the government an economic advantage. All criteria in ME.S. are satisfied and we 
conclude that the pamphlet and instruction 14 are sovereign acts. This, however, does 
not put an end to our inquiry. 
JTC's Interpretation Argument/Scope of the Sovereign Acts 
JTC contends that the Air Force failed to follow base access regulations in 
place prior to Col Finan's 22 October 2007 memorandum (app. br. at 33). JTC argues, 
"[n]othing 
in the Base's access regulations or orders prior to October 2007 stated that 
persons with felony convictions would be denied access or precluded personnel with 
felony convictions from working on the Base" (app. br. at 34). This is true. 
JTC mounts what is essentially a regulatory interpretation argument (app. br. 
at 33-36). JTC argues that the policy in place before Col Finan's 22 October 
2007 
policy memorandum was limited to a check for "wants and warrants." JTC contends 
that a check for "wants and warrants" is not a general criminal background check 
(app. br. at 34). Mr. Ward disagrees (finding 3). In any event we resolve this matter 
by employing well known standards of regulatory interpretation. The language to be 
interpreted is: 
A 911 Dispatcher will run the employees name through the 
National Criminal Information Center system for a wants 
and warrants check. Unfavorable results will be 
scrutinized and eligibility will be determined on a 
case-by-case basis by the 341 SFG/CC. 
14 Air Force Instruction 31-101 was held to be a sovereign act in ME.S., 12-1 BCA 
ii 34,958 at 171,853, 171,855-56. 
21 

(Finding 3) It is true that this language only refers to running a NCIC check for 
"wants and warrants." It is also true that a literal reading of the language might 
support JTC's argument. However, once it is understood that anyone with a "want or 
warrant" would be immediately detained upon showing up at the MAFB gate 
(finding 29), JTC's interpretation breaks down. Any such individual with 
"unfavorable results" would never be "scrutinized" and access eligibility would not be 
"determined on a case-by-case basis." An individual with a "'want or warrant" would 
never gain access to MAFB. (Id.) JTC's interpretation therefore violates the 
requirement that when interpreting regulatory language we must find an interpretation 
that is harmonious with the regulatory scheme and thus look not only to particular 
language but to design of the provision as a whole. Space Gateway Support, LLC, 
ASBCA Nos. 55608, 55658, 13 BCA iJ 35,232 at 172,978. Additionally, JTC's 
interpretation leads to the absurd result that all convicted felons are to be allowed onto 
MAFB. Even Mr. Talcott agreed that violent felons and sex offenders should not be 
allowed access to MAFB (findings 20, 22-23). If clear and unambiguous language 
results in an "absurd" result, the language must be construed to avoid the absurdity. 
Church of the Holy Trinity v. United States, 143 U.S. 457, 460 (1892); Public Citizen 
v. United States Department of Justice, 491U.S.440, 454 (1989) (Where the literal 
reading of a statutory term compels an odd result the court must look for other 
evidence of congressional intent to find the proper interpretation). Accordingly we 
decline to adopt JTC's interpretation and conclude that the NCIC check for ··wants and 
warrants" is a background check and an individual's criminal record uncovered by the 
background check could be scrutinized to decide if access to MAFB will be granted. 
We have already held that this process is embodied in documents that qualify for 
sovereign act protection. 
Air Force's Failure to Enforce its Base Access Policy 
Mr. Talcott testified that over a 20-year period of working on MAFB, JTC 
never experienced a rejection of anyone it listed on its EALs. He relied on this 
experience in bidding on this job and assumed he would have access to the same pool 
of workers he had used in the past. (Finding 14) Mr. Talcott recalled that JTC started 
getting rejections of workers on its EALs in the spring of2007 (finding 15). 
Mr. G. Richerson recalled seeing rejections in the winter of2006 or spring of 2007 
(finding 16). We adopt spring of 2007 as the general date the Air Force began 
enforcing its base policy and denying access to workers on the JTC's EAL. The 
record is replete with evidence that JTC complained about these rejections and alleged 
that as a result its workforce was less experienced and inefficient (findings 14-1 7. 
19-20, 25-26, 31 ). 
We have found that at least since 2003, well before Col Finan's 22 October 
2007 memorandum, MAFB had written policies in place that required a NCIC 
background check and a case-by-case evaluation of ··unfavorable results." Having 
22 

policies in place does not answer the question - "were they enforced?" The Air Force 
presented no evidence that it was actually conducting background checks and denying 
access to individuals on EALs prior to the spring of 2007. The Air Force presented no 
evidence that would lead us to conclude that Mr. Talcotf s testimony should not be 
believed. Since there is no evidence in the record that rebuts JTC's evidence that 
MAFB did not enforce its access policies until the spring of 2007. we can only 
conclude that JTC is correct. We conclude that MAFB failed to enforce its access 
policies, in place since at least 2003, until 
the spring of 2007. For reasons that follow. 
we need not discuss whether Garco relied upon JTC's bid and thus relied upon the 
assumptions made in JTC's bid to Garco with respect to base 
access policies. See 
Fruin-Co/non Corp. v. United States, 912 F.2d 1426, 1428-29 (Where a contractor 
seeks recovery based upon its subcontractor's interpretation of the contract, it must 
prove that it relied in that subcontractor's interpretation vvhen submitting its bid.). 
At this point we consider whether the Air Force's failure to enforce its base 
access policy somehow waived the sovereign nature of the policy thereby forfeiting 
the defense. The sovereign nature of the 34pt Space Wing Pamphlet 31-103, 21 July 
2005, Local Security Policy and Security Procedures for Contractors and 341 st Space 
Wing Instruction 31-101, 26 July 2005, Installation Security Instruction arises because 
they were issued by order of the base commander pursuant to various authorities and 
satisfy the requirements of our case precedence. ME.S., 12-1 BCA if 34,958 
at 171,856. There is nothing in the record indicating that it was the base commander's 
decision not to enforce the policy. If this were the case. it is possible that the 
sovereign act defense would not be available to the Air Force. There is nothing in the 
record telling us who was responsible for failing to enforce the policy or whether it 
was or was not enforced regarding contractors other than JTC. However, it is unlikely 
that any subordinate would have the authority to waive the base commander's policy. 
There is nothing in the record even remotely connecting the base commander with the 
decision not to enforce the access policy. We conclude that the sovereign nature of 
MAFB's access policy was not affected by the Air Force's failure to enforce it for 
several years prior to 2007. 
The government can act in its sovereign capacity without warning. In Conner 
Brothers Construction Co. v. Geren, 550 F.3d 1368 (Fed. Cir. 2008), Conner was 
denied access to its work site on Fort Benning, Georgia, shortly after the attacks on 
11 September 2001. The Federal Circuit upheld the Board's decision that the denial of 
access was a sovereign act. Id. at 1371, 1378-79. In M.E.S. the Air Force "updated 
procedures for installation entry by contractors." MES., 12-1 BCA ii 34,958 
at 171,853. It was undisputed that this change added one hour each day for 
compliance by M.E.S. and its subcontractors. Id. This Board held that the .. update'' 
was a sovereign act for which the Air Force was not liable for money damages. Id. 
at 171,856. This case is analogous to MES. The Air Force's spring 2007 decision to 
enforce its base access policy has the same effect as the update in policy in MES. 
23 

Since we have held that the Air Force's failure to enforce its policy did not affect the 
sovereign nature of the policy, the Air Force's decision to commence enforcing its 
existing base access policy in 2007 was protected as a sovereign act. This conclusion 
extends the sovereign act protection in our decision granting partial summary 
judgment from 22 October 2007 back to the spring of 2007 or whenever the Air Force 
first started denying access to individuals on JTC's EAL. 
JTC 's Other Arguments 
JTC alleges that the government failed to prove that its conduct in reviewing 
each unfavorable result from the NCIC '·was not arbitrary, unpredictable or 
discriminatory" (app. br. at 38). First of all it is not the government's burden of proof. 
The government's actions in this regard are presumed reasonable. SIA Construction. 
Inc., ASBCA No. 57693, 14-1BCAif35,762 at 174,988 ("'Government agents are 
presumed to discharge their duties in good faith, and a party alleging 'bad faith' or 
'bad intent' can overcome this presumption only by clear and convincing evidence." 
(citation omitted). Second, while we see deliberations within the Air Force about the 
access policy (findings 21-29), we see nothing to support a finding that the Air Force 
was '"arbitrary, unpredictable or discriminatory" (id.). JTC argues that Col Finan· s 
22 October 2007 memorandum was arbitrary and capricious, however, we adjudicated 
Col Finan's memorandum in our earlier decision, it is too late to make this argument 
now and there is nothing in the record that supports that conclusion anyway. 
JTC argues that the government is liable in monetary damages because it did not 
grant a time extension. Appellant points out that JTC informed the Air Force that the 
problem with base access was delaying JTC's performance (app. br. at 43). JTC relies 
on two documents wherein it informed the government that it was being impacted from 
both a cost and time standpoint (id.). It is true that Garco might have been able to 
specifically request additional time to perform as a result of the sovereign acts. 
Troy Eagle Group, ASBCA No. 56447, 13 BCA i! 35.258 at 173,060 ('"Actions taken 
by the United States in its sovereign capacity shield the government from liability for 
financial claims resulting from those acts, although a contractor is allowed additional 
time to perform.") (citations omitted). However, even if appellant had a right to a time 
extension it does not provide it a path to entitlement to monetary damages resulting 
directly from the sovereign act of limiting access to MAFB. We have considered all of 
JTC's arguments and none of them affect our analysis and decision. 
Quantum 
Having decided that before Col Finan's 22 October 2007 base access 
memorandum the Air Force's 
change from its practice of allowing workers with 
criminal backgrounds access to MAFB was protected as a sovereign act, we need not 
discuss other arguments advanced by the parties, nor do we determine quantum. 
24 

Since we have held that the Air Force's failure to enforce its policy did not affect the 
sovereign nature of the policy, the Air Force's decision to commence enforcing its 
existing base access policy in 2007 was protected as a sovereign act. This conclusion 
extends the sovereign act protection in our decision granting partial summary 
judgment from 22 October 2007 back to the spring of 2007 or whenever the Air Force 
first started denying access to individuals on JTC's EAL. 
JTC 's Other Arguments 
JTC alleges that the government failed to prove that its conduct in reviewing 
each unfavorable result from the NCIC '·was not arbitrary, unpredictable or 
discriminatory" (app. br. at 38). First of all it is not the government's burden of proof. 
The government's actions in this regard are presumed reasonable. SIA Construction. 
Inc., ASBCA No. 57693, 14-1 BCA ~ 35.762 at 174,988 ("'Government agents are 
presumed to discharge their duties in good faith, and a party alleging 'bad faith' or 
'bad intent' can overcome this presumption only by clear and convincing evidence.'' 
(citation omitted). Second, while we see deliberations within the Air Force about the 
access policy (findings 21-29), we see nothing to support a finding that the Air Force 
was '"arbitrary, unpredictable or discriminatory'· (id.). ITC argues that Col Finan·s 
22 October 2007 memorandum was arbitrary and capricious, however, we adjudicated 
Col Finan's memorandum in our earlier decision, it is too late to make this argument 
now and there is nothing in the record that supports that conclusion an)'\vay. 
JTC argues that the government is liable in monetary damages because it did not 
grant a time extension. Appellant points out that JTC informed the Air Force that the 
problem with base access was delaying JTC's performance (app. br. at 43). JTC relies 
on two documents wherein it informed the government that it was being impacted from 
both a cost and time standpoint (id.). It is true that Garco might have been able to 
specifically request additional time to perform as a result of the sovereign acts. 
Troy Eagle Group, ASBCA No. 56447. 13 BCA ~ 35.258 at 173,060 (''Actions taken 
by the United States in its sovereign capacity shield the government from liability for 
financial claims resulting from those acts, although a contractor is allowed additional 
time to perform.") (citations omitted). However, even if appellant had a right to a time 
extension it does not provide it a path to entitlement to monetary damages resulting 
directly from the sovereign act of limiting access to MAFB. We have considered all of 
JTC's arguments and none of them affect our analysis and decision. 
Quantum 
Having decided that before Col Finan's 22 October 2007 base access 
memorandum the Air Force's change from its practice of allowing workers with 
criminal backgrounds access to MAFB was protected as a sovereign act. we need not 
discuss other arguments advanced by the parties, nor do we determine quantum. 
24 

CONCLUSION 
The Air Force's enforcement of its base access policy commencing on or abuut 
the spring of2007 was a sovereign act. To the extent JTC suffered as a result of the 
denial of access to its desired workers, the Air Force is not liable in monetarv . 
damages. The appeals are denied. 
Dated: 22 September 2015 
I concur 
MARK N. STEMPLER / 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administ · tive Judge 
Armed Services Board 
of Contract Appeals 
I concur 
RICHARD SHACKLEFORD 
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. 57796, 57888, Appeals of 
Garco Construction, Inc., rendered in conformance with the Board's Charter. 
Dated: 
25 
JEFFREYD. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals