ECC International Constructors, LLC
Docket: ASBCA 59643
Decision date: 2021-11-09

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE GOVERNMENT’S 
PARTIAL MOTION TO DISMISS FOR LACK OF JURISDICTION 
 
 The government moves for the dismissal of parts of the appeal for lack of 
jurisdiction, saying that appellant, ECC International Constructors, LLC (ECCI), did not 
provide sums certain for what the government (U.S. Army Corps of Engineers or 
USACE) says are separate claims. 
 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
 
 In September 2010, the parties contracted for ECCI to design and 
construct a military compound in Afghanistan (R4, tab 5 at 2, 179 § 1.1).  On May 2, 
2014, ECCI submitted to the contracting officer a demand for $3,767,856.32 “for the 
design, procurement, logistics and construction cost impacts directly attributable to the 
extra work caused and directed by the Government during execution of the project,” more 
specifically:  (1) design costs; (2) material procurement, shipping and labor costs 
associated with communications systems; (3) material procurement, shipping and labor 
costs associated with electrical systems; (4) material procurement, shipping and labor 
costs associated with heating ventilation and air conditioning (HVAC) systems; and 
(5) miscellaneous extra work (R4, tab 75 at 6).  The submission further breaks the 
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 
 Sarah L. Hinkle, Esq. 
Geoffrey A. Mueller, Esq. 
Kathryn G. Morris, Esq. 
Matthew Tilghman, Esq. 
  Engineer Trial Attorneys 
    U.S. Army Engineer District, Middle East 
  Winchester, VA 

2 
 
$3,767,856.32 demand amount into 23 direct cost items totaling $3,212,831.76, before 
adding general and administrative costs, fee, and bond, to arrive at the claimed total 
amount of $3,767,856.32 (R4, tab 75 at 55, 77-78).  The government challenges the 
Board’s jurisdiction to entertain nine of those direct cost items:  (1) Additional Outlets 
and Changed Configurations; (2) Additional and Changed Flexible Metal Conduit; 
(3) Legrand Raised Floor Communications Outlets; (4) 144 Port Fiber Optic 
Combination Units; (5) Trunk and Splice OSP Configuration, (6) Changed Direction 
Regarding Design and Provision of Uninterruptible Power Supply (UPS) System; 
(7) UL/R410 HVAC and Change to Accommodate Schedule; (8) Server Cabinets and 
Relay Racks; and (9) Additional Ladder Rack and Cable Tray (gov’t mot. at 4-5). 
 
1. Additional Voice/Data and Printer Outlets and Changes to Configuration of 
Non-Office Outlets 
 
 In its submission to the contracting officer, ECCI makes a single request for 
$989,042.80 for (at least):  (1) the government’s alleged “direction to ‘round up’ the 
number of outlets in each space determined by dividing the floor area of a particular 
office by the [contract] outlet density when the calculation resulted in less than a whole 
number”; (2) the government’s alleged direction to provide “two voice and two data 
connectors” every 4.5 square meters of floor area in certain office spaces; (3) the 
government’s alleged direction “to provide a standard ‘Office’ wall outlet with two voice 
and two data outlets in a six-plex plate in all non-office spaces”; (4) the government’s 
alleged direction that “raised access floor areas in the [Tactical Operations Center (TOC)] 
be equipped with one Secure, one Above Secret and one Non-Secure raised floor box per 
4.6 square meters of raised floor area”; and (5) the government’s alleged direction that 
ECCI provide additional non-Secure and Secure printer outlets (R4, tab 75 at 15-18). 
 
a. Rounding Up 
 
 With respect to “rounding up,” ECCI in its submission to the contracting officer 
states: 
 
The communications systems design reviewer directed that all 
room outlet calculations need to be reviewed to “ensure the 
number meets the requirements of [the contract].”  A follow 
up review conference revealed that the reviewer was insisting 
on implementation of his interpretation of the contract 
requirements regarding the number of outlets required in each 
building.  Essentially, he was directing that the outlets density 
provisions in [the contract] be implemented with complete 
disregard of other applicable contract provisions or 
conditions.  This included his direction to “round up” the 
number of outlets in each space determined by dividing the 

3 
 
floor area of a particular office by [the contract] outlet density 
when the calculation resulted in less than a whole number. 
 
(R4, tab 75 at 15) 
  
b. Two Voice and Two Data Connectors Every 4.5 Square Meters 
 
   With respect to two voice and two data connectors every 4.5 square meters of 
floor area in certain office spaces, ECCI states: 
 
The I3A (Department of the Army, Technical Criteria for the 
Installation Information Infrastructure Architecture), 
Paragraph 2.3.5.2, QUARTERS requires an outlet with just 
one connector compared to the two connectors in ECCI’s 
original design and the four connectors directed by the 
Government.  The I3A states, 
 
“For U.S. Army barracks projects, provide one 8-pin 
modular (RJ45 type) connector in a single gang outlet 
faceplate, labeled voice use, and one CATV outlet per 
sleeping/living area.” 
 
So the communications system design reviewer’s direction  
. . . results in four times the cable and keystone modules 
required by the I3A and two times the number proposed in 
ECCI’s design. 
 
. . .  
 
So while the Government was directing ECCI install a 
barracks communications system costing more than four 
times the Army’s normal barracks communication system, 
there was apparently no requirement at all.  The Government 
also directed the same outlet configuration for sleeping rooms 
in other buildings . . . .   
 
Similarly, for non-barracks, non-office spaces, the I3A only 
requires one voice and one data connector.  And finally, the 
I3A only requires one outlet with one each voice and one data 
connector every 7.5 square meters of floor area in 
Headquarters, Administrative and Office spaces as compared 
to the 4.5 square meters and two voice and two data 

4 
 
connectors the communications system design reviewer 
directed. 
 
(R4, tab 75 at 16-17 (italics in original)) 
 
c. Additional Non-Secure and Secure Printer Outlets 
 
 With respect to the government’s alleged direction that ECCI provide additional 
non-Secure and Secure printer outlets, ECCI states: 
 
[T]he Government communications design reviewer directed 
ECCI to provide a standard “Office” wall outlet with two 
voice and two data outlets in a six-plex plate in all non-office 
spaces.  However, the barracks rooms, sleeping rooms in 
other buildings, maintenance spaces, game rooms, etc. 
throughout the project are not offices, and the contract is 
silent regarding the outlet configuration for non-office spaces 
except for those with raised computer flooring. 
 
(R4, tab 75 at 16) 
 
d. Raised Access Floor Areas in the TOC Be Equipped with One Secure, One 
Above Secret and one Non-Secure Raised Floor Box Per 4.6 Square Meters 
 
 With respect to the government’s alleged direction that “raised access floor areas 
in the TOC be equipped with one Secure, one Above Secret and one Non-Secure raised 
floor box per 4.6 square meters of raised floor area,” ECCI states: 
 
The communications system design reviewer also directed 
that raised access floor areas in the TOC be equipped with 
one Secure, on Above Secret and one Non-Secure raised floor 
box per 4.6 square meters of raised floor area, equating to 
30 outlet groups in each of the four TOC open work areas, 
which have a calculated . . . occupancy of 15.  However, the 
raised floor boxes described in [the contract] are configured 
to service two work stations per floor box.  ECCI’s position is 
that one floor box was required for every two work stations, 
which would number 15.  Clearly, it is not the intent of the 
contract to install enough outlets to serve 60 work stations in 
a space which has a calculated . . . occupancy of 15, nor to 
install enough outlets to serve 240 work stations in the small 
TOC facility when the design population for the entire project 
that includes major 12 non-barracks buildings is just 400. 

5 
 
 
(R4, tab 75 at 17 (emphasis in original, alteration added)) 
 
e. Additional Non-Secure and Secure Printer Outlets 
 
  With respect to the government’s alleged direction that ECCI provide additional 
non-Secure and Secure printer outlets, ECCI states: 
 
Based on the direction to increase the number of outlets 
throughout the project, the communications system design 
reviewer also directed a significant increase in the number of 
non-Secure printer outlets, based on the voice/ data outlet 
increase.  The contract requires just 15 Secure printer outlets 
for the entire project with the location of both Secure and 
non-Secure printer outlets to be provided by the COR 
[Contracting Officer’s Representative].  These locations were 
not provided by the COR or the communications system 
design reviewer until the 3
rd 100% submission.  The direction 
finally provided resulted in a total of 23 Secure printer outlets 
throughout the project compared to the required 15. 
 
 (R4, tab 75 at 17-18 (bracketed material added)) 
 
 We find that the above constitutes at least five sets of materially different, 
unrelated operative facts:  (1) one concerning the government’s alleged direction to 
“round up” the number of outlets in each space; (2) one concerning the government’s 
alleged direction to provide two voice and two data connectors every 4.5 square meters of 
floor area in certain office spaces; (3) one concerning the government’s alleged direction 
“to provide a standard ‘Office’ wall outlet with two voice and two data outlets in a 
six-plex plate in all non-office spaces”; (4) one concerning the government’s alleged 
direction that “raised access floor areas in the TOC be equipped with one Secure, one 
Above Secret and one Non-Secure raised floor box per 4.6 square meters of raised floor 
area”; and (5) one concerning the government’s alleged direction that ECCI provide 
additional non-Secure and Secure printer outlets. 
 
2. Additional and Changed Flexible Metal Conduit 
 
 In its submission to the contracting officer, ECCI makes a single request for 
$191,328.07 for “additional and changed flexible metal conduits for raised floor 
communications outlets” (R4, tab 75 at 19-21).  ECCI states that “[c]ommunications 
system design reviewer comment 4331500 first insisted the flexible conduit servicing 
raised floor communications outlets be UL listed and that ECCI provide an ‘extra’ 
conduit to each box when there are no such requirements in the contract” (R4, tab 75 

6 
 
at 19 (emphasis added)).  We find that those constitute two sets of materially different, 
unrelated operative facts:  one concerning the alleged government insistence that outlets 
be UL listed, and one concerning the alleged government insistence that ECCI provide 
extra conduit. 
 
3. Legrand Raised Floor Communications Outlets 
 
 In its submission to the contracting officer, ECCI makes a single request for 
$51,471.07 for its Legrand Raised Floor Communications Outlets claim (R4, tab 75 
at 21-22).  ECCI explained to the contracting officer that: 
 
ECCI’s 100%, [sic] design submissions through 4 January 
2013 reflected six gang raised access floor boxes.  However, 
the Governments [sic] directed change to British Standard 
[BS] outlets required ECCI to re-evaluate the size and 
configuration of the boxes.  In response to the design 
reviewer’s backcheck recommendation for comment 4329826 
stating “A cut sheet for the floor box is required in this 
design”; ECCI responded on 22 Feb 2013 that, “DIN outlets 
no longer required.  British standard outlets being evaluated 
for use within the floor box recommended by the Reviewer.”  
The floor box “recommended” by the reviewer 
(Mr. Hopkins)
1 was the Legrand Evolution Series eight gang 
box.  However, the box would not accommodate two duplex 
BS outlets.   
 
After “recommending” the Legrand floor box, Mr. Hopkins 
[then] explicitly directed its use on 18 March 2013 despite 
ECCI’s concerns that it was not compatible with the BS 
outlets. 
 
. . . 
 
The ultimate solution to fitting the directed BS outlets into the 
directed Legrand box required an increase in box size from 
six to eight gang and a special order electrical mounting 
bracket.  Additionally, because Mr. Hopkins had also directed 
that three 35 mm flexible conduits be connected to each box 
instead of the contractually required one 25 mm conduit 
                                              
1 Chip Hopkins was the government’s design reviewer (R4, tab 75 at 18). 
 

7 
 
(addressed previously), special additional 2 inch diameter 
knockout plates were also required. 
 
After determining the above solution, ECCI submitted eight 
gang Legrand boxes in its construction submittal on 12 May 
2013 and they were approved immediately. 
 
(R4, tab 75 at 21-22 (underscored emphasis and bracketed material added, other emphasis 
in original))  ECCI also explained that: 
 
However, after [the eight gang Legrand boxes] arrived on 
site, they still required unexpected field modifications in 
order to fit the BS outlets onto the mounting bracket.  The 
field modifications involved cutting and filing the bracket 
cutouts so the BS outlets would fit. 
 
In summary, the Government’s inappropriate direction to use 
Legrand outlet boxes, in conjunction with the modification 
requiring BS outlets, resulted in ECCI having to procure eight 
gang Legrand boxes that required custom ordered parts and 
field modifications instead of a contractually compliant six 
gang box requiring no modification.  The delay in resolving 
this issue required ECCI to airfreight the boxes from the US 
and incur significantly increased the cost of materials and 
installation. 
  
(R4, tab 75 at 22)  We find that the above constitutes at least two sets of materially 
different, unrelated operative facts:  one concerning the alleged government direction to 
use Legrand outlet boxes, and one concerning the alleged government direction that 
“three 35 mm flexible conduits be connected to each box instead of the contractually 
required one 25 mm conduit.” 
 
4. 144 Port Fiber Optic Combination Units (FOCUs) 
 
 In its submission to the contracting officer, ECCI makes a single request for 
$35,535.28 for the government’s alleged direction that ECCI:  (1) provide “144 port 
FOCU’s when 48 port units were more than sufficient,” and (2) provide “additional 
FOCU’s for single mode fiber that were not needed” (R4, tab 75 at 30-31).  ECCI states: 
 

8 
 
Mr. Hopkins directed that “The FOCUs for the OSP [outside 
plant]2 have to be a four RMU high unit to handle 144 
strands.”  ECCI disagreed but . . . Mr. Hopkins continued to 
insist that all FOCUs have 144 ports instead of the contract 
specified minimum size of 48 ports . . . .   
 
Further, . . . Mr. Hopkins directed that, “The single mode and 
multimode fiber cannot be terminated in the same 
combination unit, whether there is a divider or not.  A 
variation for consolidation will not be entertained.”  . . . .   
 
This direction resulted in additional unneeded FOCUs in two 
story buildings.  For example, in the case of the two story 
barracks, Mr. Hopkin’s [sic] direction resulted in the first 
floor relay rack having three FOCUs with 288 ports when 
there are only 36 fibers requiring termination. 
 
(R4, tab 75 at 30-31 (bracketed material added, emphasis in original))  We find that the 
above constitutes two sets of materially different, unrelated operative facts:  one 
concerning the alleged government direction to provide 144 port FOCU’s, and one 
concerning the alleged government direction to provide additional FOCU’s. 
 
5. Directed Trunk and Splice OSP Fiber Configuration 
 
 In its submission to the contracting officer, ECCI makes a single request for 
$81,256.21 for the government’s alleged direction that (1) ECCI provide OSP fiber 
arranged in a “trunk and splice” configuration instead of ECCI’s proposed “star 
(homerun) topology,” and (2) ECCI provide that “the OSP fiber optic cable include 25% 
space capacity” (R4, tab 75 at 32-34).  ECCI states: 
 
The communications system design reviewer directed during 
his 65% review that the OSP fiber cable be arranged in his 
desired “trunk and splice” configuration.  ECCI non-concurred 
with his direction . . . . 
 
. . . 
 
                                              
2 “OSP” and “outside plant” evidently derive from the “‘United States Army Information 
Systems Engineering Command Worldwide Outside Plant Design and 
Performance Requirements’ (OSPDPR)” (R4, tab 75 at 33). 

9 
 
It is the position of ECCI and the DOR [designer of record] 
that the most appropriate design for any “customer owned 
outside plant” is direct home runs. 
 
. . . 
 
Additionally, Mr. Hopkins had directed that OSP fiber cable 
include 25% space capacity.  The ECCI DOR has attempted 
to accommodate his requests and added additional fiber not 
required by the contract.  However, during his review of 
ECCI’s 100% communications system design submission in 
November 12, [sic] Mr. Hopkins directed the number of 
fibers be further increased: 
 
“The OSP does not have the 25% spare capacity as 
required in the [request for proposals].  When the size 
of the cable changes, all of the cable labels will more 
than likely change AND, additional cables may have to 
be added which will change the design considerably.” 
 
(R4, tab 75 at 32-33 (emphasis in original, bracketed material added))  Finally, ECCI 
identifies the requested $81,256.21 as “the additional cost associated with the 
Government’s direction to provide a trunk and splice OSP configuration and to provide 
additional fibers” (R4 tab 75 at 34 (emphasis added)).  We find that the above constitutes 
two sets of materially different, unrelated operative facts:  one concerning the 
government’s alleged direction that ECCI provide OSP fiber in a trunk and splice 
configuration, and one concerning the government’s alleged direction that ECCI provide 
OSP fiber optic cable that included 25% spare capacity. 
 
6. Changed Direction Regarding Design and Provision of Uninterruptible Power 
 Supply (UPS) System 
 
 In its submission to the contracting officer, ECCI requests $67,721 for the 
government’s alleged direction that ECCI provide a UPS system (R4, tab 75 at 40).  
ECCI states that initially, the government directed ECCI to refrain from designing and 
installing a UPS system, but later directed ECCI to provide such a system without, 
apparently, specifying the size of the system (R4, tab 75 at 39).  ECCI states that it 
notified the government that it intended to provide a 120 KVA system, explaining that: 
 
This significant change in direction at this late stage of the 
project will impact schedule and cost, so we will submit our 
request for equitable adjustment or, preferably, our response 
to a Government RFP as soon as possible. 

10 
 
 
(R4, tab 75 at 39-40 (italics in original))  ECCI states that, in response, the government 
directed that ECCI instead provide a 200 KVA UPS system (R4, tab 75 at 39-40).  ECCI 
responded that: 
 
“ECCI will proceed with completing the design and 
providing the system.  We disagree with the Government’s 
assessment of the required system size and stand by our 
determination that a 120 KVA system is appropriate and 
meets the stated requirements.  Additionally, an optional 
maintenance bypass switch is not specified in the contract 
requirements, and the unit only requires minimum 30 minute 
battery operation during power failure.  However, based on 
your direction, we will proceed with providing the 200 KVA 
systems with maintenance bypass and extended battery 
backup and will include the additional costs and time 
associated with the larger system and the late timing of this 
direction in a Request for Equitable Adjustment to be 
submitted as soon as possible.” 
 
(R4, tab 75 at 39 (italics in original, boldface added))  ECCI further states that: 
 
The Government’s direction to provide a 200 KVA system is 
based on improperly ignoring USACE’s standard demand, 
load and coincidence factors and enforcing erroneous 
“previous guidance” to provide 20% in additional capacity 
that is not required by the contract.  An available 200 KVA 
system could not be identified, so ECCI was forced to procure 
and airfreight a 225 KVA capable system and bypass switch.  
Late arrival of the much larger than required system and 
bypass switch required significant rework in the UPS room 
prior to installation of the system.  This [claim] is for the cost 
of the larger system and switch, airfreight and rework in the 
UPS room. 
 
(R4, tab 75 at 40)  We find that the above constitutes at least two sets of related 
materially different, unrelated operative facts:  one concerning the government’s 
allegedly belated direction to provide a UPS system, and one concerning the 
government’s alleged direction to provide a UPS system larger than 120 KVA. 
 

11 
 
7. HVAC Systems 
 
 In its submission to the contracting officer, ECCI makes a request for $878,675.34 
for “the Government’s direction to provide UL equipment using R410 and its subsequent 
directed acceleration and phased turnover” (R4, tab 75 at 48).  ECCI states: 
 
ProjNet Comment 4131009 from the Mechanical Design 
reviewer . . . was the first indication that the Government was 
expecting UL listed HVAC equipment.  ECCI’s response to 
that comment was that UL listed equipment was not a 
requirement . . . .   
 
On 29 May 2012, ECCI submitted its first HVAC product 
data . . . .   
 
. . . 
 
[O]n 18 Jun 12 USACE provided new review comments and 
again disapproved the submittal . . . .  The comments were 
primarily based on the Government’s overarching 
requirement that the equipment be: 
 
1. UL listed . . . .
3 
2. Use R410 refrigerant 
 
So the Government disapproved the proposed equipment, in 
part, for not being UL listed . . . .  ECCI promptly addressed 
all review comments . . . .   
 
(R4, tab 75 at 42-43)  Among those comments, ECCI states that “the use of R22 in new 
equipment in Afghanistan . . . is actually in full compliance with . . . our contract.”  (R4, 
tab 75 at 43 (italics deleted))  ECCI further states: 
 
Despite ECCI’s detailed explanation of its position, the 
Government refused to acknowledge that non-U.S. material 
was allowed by the contract and issued [an August 5, 2012 
letter] restating its position that UL listed material was 
required because “100 % cleared for construction 
specifications” had inadvertently and incorrectly included 
those requirements.  The Government maintained that the 
                                              
3 ECCI also (and elsewhere) references an alleged testing requirement, “per 
ANSI/ASHRAE,” that we find unnecessary to include. 

12 
 
specifications could not be revised by the Contractor after 
“clearance for construction” had been issued.  However, no 
such clearance had been issued at the time and in fact has not 
been issued to date.  Furthermore, the notion that the 
specifications could not be revised is in direct contravention 
to [a government September 2012 letter] that had directed the 
. . . Mechanical Specifications be revised and resubmitted. 
 
ECCI resubmitted the proposed HVAC equipment product 
data with its position clearly stated in response to the 
Government comments.  On 10 August 2012 USACE once 
again [] disapproved the proposed equipment . . . .  ECCI 
informed USACE of the intention to resubmit selected 
Mechanical specs thus aligning it with contact [sic] 
requirements. 
 
The Government [in August and September 2012] reiterated 
its demand for UL listed material . . . .   
 
ECCI continued to maintain that the disapproval of our 
proposed equipment on the basis that it is 1) not UL listed nor 
tested . . . and 2) R-22 refrigerant is not allowed, was not 
consistent with the contract requirements. 
 
. . . 
 
[On November 16, 2012, ECCI] provided revisions to the 
100% mechanical specs and further clarified our position 
regarding ECCI’s contractual right to correct the mechanical 
specifications by responding to each Government statement  
. . . . 
 
(R4, tab 75 at 44-45 (alterations and bracketed material added))  ECCI provided the 
following excerpt of its November 16, 2012 letter to the government: 
 
Our designer erred in including the UL . . . and R-410 
requirements in our 100% specifications.  The last 
Government review of our Mechanical design submittal 
resulted in direction to resubmit.  We have therefore 
corrected the errors in the specifications . . . . 
 
Further, there is no language in the contract that states the 
more rigorous HVAC requirements between conflicting 

13 
 
Contractor developed specifications and original contract 
requirements take precedence.  In fact [the contract] 
indicates that design products actually have the lowest 
precedence.  
 
. . . 
 
Therefore, if we have inadvertently or mistakenly included 
provisions in our design that are not contract requirements, 
those erroneous requirements are not binding and correcting 
them is perfectly reasonable and allowed . . . . 
 
(R4, tab 75 at 45 (italics in original, bracketed material added))  In its May 2, 2014 
submission to the contracting officer, ECCI further states: 
 
[In September and November 2012,] ECCI once again 
presented its position that UL and R410 criteria had been 
mistakenly incorporated into the specifications by its design 
team and that the specifications were not binding since ECCI, 
as the design-build contractor, was responsible for correcting 
the errors in the design specification in accordance with the 
terms of our contract. 
 
. . . 
 
Further, USACE approved R22 units for all split pack units 
located throughout the project and their unreasonable 
disallowance of R22 equipment for the large HVAC systems 
served no purpose but to increase ECCI’s costs, delay the 
project and complicate the maintenance and operations 
functions of the facility. 
 
. . . 
 
The Government once again forbid ECC [sic] to revise its 
specification and continued to direct the use of UL listed 
material with R410 refrigerant.   
 
. . . 
 
Subsequently, two meetings were held [in November 2012] 
between ECCI management and [government officials] to 

14 
 
address this and other issues.  At the second [November 30, 
2012] meeting USACE explicitly directed for the first time  
for ECCI to provide UL equipment with R410 refrigerant.   
   
[On November 20, 2012, ECCI] acknowledged the USACE 
direction to proceed with UL / R410 equipment and stated 
ECCI would be submitting [a Request for Equitable 
Adjustment] regarding this issue. . . .  ECCI quickly 
assembled a new construction submittal package proposing 
UL listed Carrier HVAC equipment and submitted it on 
8 December 2012 . . . .  
 
However, despite the fact that the product data submitted 
clearly showed the equipment was UL listed and used R410 
refrigerant . . . [,] the reviewer unreasonably rejected the 
submittal.  After taking 55 days for its review, USACE had 
not conducted any technical review of the proposed 
equipment and unreasonably disapproved the submittal 
because of just three issues . . . .  One comment pertained to 
the format of the submittal and, incredibly, two pertained to 
references to R22 and CE compliant equipment in the 
previous mechanical specifications that had not yet been 
revised.  No technical comments were provided.  Following 
the resubmission of the same product data . . . , the 
Government finally approved the proposed Carrier HVAC 
product data on 7 March 2013. 
 
The total caused by the unreasonable and improper direction 
to use UL listed equipment with R410 refrigerant caused a 
267 day delay between the unreasonable disapproval of 
ECCI’s first construction submittal on 13 June 2012 and the 
eventual approval of the Carrier products on 7 March 2013. 
 
However, subsequent to the Government’s direction to 
accelerate and phase the turnover of facilities, ECCI 
determined it was unable to use the approved Carrier brand 
and had to switch to more expensive Aaon and Trane units in 
order to meet the Government’s directive to accelerate and 
phase the turnover of facilities.  In fact ECCI had to issue [a] 
stop work order to Carrier after making a 30% advance 
payment against the Purchase Order issued on 27 Mar 13.  
ECCI informed USACE of the additional costs associated the 
Government would incur [sic] as a result of changing the 

15 
 
HVAC suppliers at the weekly . . . conference call on 8 May 
2013.  The Contracting Officer [and other government 
officials] were on the call and all agreed the change was 
necessary. 
 
(R4, tab 75 at 47-48 (emphasis, alterations, and bracketed material added))  
 
 We find that the above constitutes at least two sets of materially different, 
unrelated operative facts concerning:  (1) the government’s alleged direction that ECCI 
use UL listed equipment with R410 refrigerant; and (2) the government’s alleged 
direction to accelerate and phase the turnover of facilities, resulting in an alleged decision 
by ECCI to switch from providing Carrier HVAC units to other, more expensive units.
4 
 
8. Server Cabinets and Relay Racks 
  
 In its submission to the contracting officer, ECCI makes a request for $135,270.33 
for “the additional material and shipping costs associated with the Government’s 
misapplication of TEMPEST requirements and unreasonable issuance of the unilateral 
modification for Communications Building Server Cabinets and Racks” (R4, tab 75 
at 25-30).  ECCI quotes from what it says is its letter to the government: 
 
“The communications system reviewer is maintaining all 
requirements associated with meeting a TEMPEST 
accreditation in the SCIFs, including maintaining one meter 
separations between the different communications systems, 
are required.  However, TEMPEST countermeasures are not 
mandated for continuously operated SCIFs as we confirmed 
in our letter . . . of 31 March 2011 . . . .  That letter provided 
the basis for our proposal for the change of SCIF 
requirements . . . .  In regard to SCIF accreditation checklist . 
. . we stated ‘We have assumed facility does not require 
TEMPEST countermeasures.’  The modification was issued in 
the exact amount of our proposal without negotiations or 
clarification requests from the Government.” 
 
(R4, tab 75 at 25 (italics in original, underscored emphasis added))  In its submission, 
ECCI further states: 
 
                                              
4 Because of our decision below, we need not decide whether these two sets of facts 
themselves contain, within each of them, more than one set of materially different, 
unrelated operative facts. 

16 
 
The Government requested ECCI’s assumptions with its 
proposal to ensure the scope of the modification was clear to 
both ECCI and the Government before its issuance.  Since it 
was issued based on those assumptions, the assumptions are 
clearly incorporated by the issuance of the modification.  
However, the Contracting Officer’s response . . . stated: 
  
“The design is required to conform to the most 
stringent TEMPEST requirements, including the 
1 meter separation between equipment racks, as 
well as other TEMPEST separation distances and 
controls area design requirements.” 
 
ECCI proceeded with the direction in the Contracting 
Officer’s . . . letter, however, we continue to maintain the 
contract, as modified, does not require application of the 
“most stringent” TEMPEST requirements nor does it require 
one meter separation between all equipment racks.  First, 
ECCI continues to maintain that Modification A0004 deleted 
any TEMPEST countermeasure requirements in SCIFs based 
on ECCI’s clarifications regarding the modification’s scope 
and the Government’s acceptance of those clarifications.  
However, notwithstanding any impact on TEMPEST 
requirements from the modification, the original contract does 
not require “the most stringent TEMPEST requirements, 
including the 1 meter separation between equipment 
racks” as directed by the Contracting Officer. 
 
. . . 
 
The Government’s direction to separate all relay racks by one 
meter significantly compounded the problem of fitting the 
racks into the communications rooms.  Communications 
room layouts for racks, ladder racks, etc. required continual 
revisions and to such an extent that in Building J ECCI 
actually had to change from floor mounted relay racks to wall 
mounted racks. 
 
(R4, tab 75 at 25-27)  ECCI continues: 
 
Additionally, . . . the communications system design reviewer 
continued to direct ECCI to provide the Communications 
Building server cabinets and racks that ultimately the 

17 
 
Government agreed were not in our contract.  After several 
exchanges of ProjNet comments and official correspondence, 
the Government finally conceded the work was not in our 
contract, and . . . stated a modification would be required.  An 
RFP was issued . . . .  ECCI submitted its original proposal . . 
. . 
 
ECCI was then required to revise its proposal because the 
Government communications system design reviewer 
inappropriately disapproved ECCI’s original server cabinet 
and relay rack construction submittals.  The Government 
directed ECCI to re-price its proposal using a Government 
specified cabinet from Black Box instead of the less 
expensive, contract compliant Chatsworth cabinets ECCI had 
originally intended to use.  
 
. . . 
 
The modification was not issued for three months after it was 
negotiated.  While ECCI had previously agreed to the pricing 
adjustment in the modification that was ultimately unilaterally 
issued . . . , the delay in preparation of the modification by the 
Government made the schedule and pricing impacts estimated 
by ECCI obsolete.  Moreover, ECCI was concerned about the 
impact the modification would have on the relay racks that 
were required under the original contract, which would now 
have to match the cabinets the Government directed in this 
modification.  ECCI clearly expressed its concern regarding 
impact on the relay rack requirements during the negotiations, 
during which the Government agreed to include language in 
the modification that would recognize ECCI’s right to request 
a contract adjustment for any impact of the server cabinets 
directed in this modification on the cost and time associated 
with the relay racks required by the original contract.  When 
the Government sent the modification for ECCI’s signature 
three months later, however, such language was not included 
as previously agreed.  Instead, the standard closing statement 
was included essentially barring ECCI from pursuing an 
REA.  Because of these reasons, ECCI did not agree with the 
modification and requested a provision be added . . . 
addressing ECCI’s concerns as originally agreed during the 
negotiations.  The [government] responded: 
 

18 
 
“Your request makes no sense.  This is a modification. 
As such, the contractor and the Government negotiate 
the price of what needs to be delivered based on the 
contractor’s costs.  If you were directed to obtain 
specific items, as you claim, then that cost ought to be 
part of your proposal and it gets negotiated.  Mod gets 
executed based on what was negotiated.  End of 
story.” 
 
(R4, tab 75 at 27-28 (italics and bolded material in original, underscored emphasis 
added))  ECCI further states that after urging ECCI to sign the modification, the 
government eventually issued the modification unilaterally, “incorporating ECCI’s 
obsolete pricing and schedule impacts and failing to include the provision USACE 
originally agreed to include” (R4, tab 75 at 30).  ECCI continues: 
 
This issue served to generate numerous Government 
comments and back check comments directing ECCI to 
reflect the desired system in the design before it was added to 
the contract by modification.  This in turn served to increase 
the cost of subsequent communications system design 
submittals.  This issue also postponed ECCI’s ability to 
procure not only the server cabinets added by the 
modification, but also the relay racks in the original contract, 
which were changed by the modification, which ultimately 
necessitated air freighting the cabinets at a significantly 
higher cost than anticipated.  Further, the cabinets specified 
by the Government were 45 U high cabinets when the 
contract, changed by P0007, required only 42U high relay 
racks.  Therefore, the unilateral modification did not 
adequately adjust contract time or price and increased the 
procurement cost of relay racks that [the government] refused 
to address with the modification previously agreed to. 
 
(R4, tab 75 at 30 (alterations added)) 
  
We find that the above constitutes two sets of materially different, unrelated 
operative facts:  one concerning the government’s alleged direction to separate all relay 
racks by one meter, and one concerning the government’s alleged direction that ECCI 
provide server cabinets and racks not required by the contract. 
 
 

19 
 
9. Ladder Cable Tray Around the Entire Perimeter of Communications Rooms and 
Overhead Cable Tray in Tactical Operations Center (TOC) 
 
 In its submission to the contracting officer, ECCI makes a request for $153,307.02 
for alleged “additional work associated with the additional ladder rack and overhead 
cable tray in the TOC building” (R4, tab 75 at 22-25).  ECCI states: 
 
[T]he communications system design reviewer[] continued to 
insist that cable ladder rack was required around the entire 
perimeter of all telecommunications rooms . . . .  Our design 
showed ladder rack routed around the perimeter of the 
telecommunications rooms as necessary to serve the 
cabinets/racks . . . .   
 
. . . 
 
Conservatively speaking, the amount of ladder rack installed 
project wide doubled over the contract required amount 
because of the communications system design reviewer 
direction.   
 
Project wide, the additional work associated with the 
additional ladder rack and the overhead cable tray in the TOC 
building discussed previously in relation to additional outlets 
resulted in the below direct cost increase . . . . 
 
 
(R4, tab 75 at 22-25 (emphasis in original))  We find that the above constitutes two sets 
of materially different, unrelated operative facts:  one for “additional work associated 
with the additional ladder rack,” and one for “the overhead cable tray in the TOC 
building.” 
 
DECISION 
 
 ECCI has the burden of proving the Board’s jurisdiction by a preponderance of the 
evidence, including that it presented to the contracting officer a claim, which, in the case 
of a demand for money, must be stated in a sum certain.  See Naseem Al-Oula Co., 
ASBCA No. 61321 et al., 20-1 BCA ¶ 37,490 at 182,148.  We also have an independent 
obligation to determine our own jurisdiction.  See Stobil Enters. v. Dep’t of Veterans 
Affairs, CBCA No. 5246-R, 17-1 BCA ¶ 36,610 at 178,323.  To the extent that any of the 
bases of our jurisdictional determinations go beyond the arguments that the parties have 
briefed, the parties may request reconsideration.  See id. 
 

20 
 
 We determine whether a contractor’s submission is a claim on a case-by-case 
basis, applying a common sense analysis.  ECC Int’l Constructors, LLC (ECCI), ASBCA 
No. 59586, 21-1 BCA ¶ 37,862 at 183,854.  Identifying what constitutes a separate claim 
is important.  Id.  The jurisdictional standard must be applied to each claim, not an entire 
case; jurisdiction exists over those claims that satisfy the requirements of an adequate 
statement of the amount sought and an adequate statement of the basis for the request.  Id. 
at 183,854-55.  Congress did not intend the word “claim” to mean the whole case 
between the contractor and the Government, but, rather, that “claim” means each claim 
under the Contract Disputes Act (41 U.S.C. §§ 7101-7109) for money that is one part of a 
divisible case.  Id. at 183,855.  The requirement that a claim adequately specify both the 
amount sought and the basis for the request means that requests involve separate claims if 
they either request different remedies (whether monetary or non-monetary) or assert 
grounds that are materially different from each other factually or legally.  Id.  This 
approach, which has been applied in a practical way, serves the objective of giving the 
contracting officer an ample, pre-suit opportunity to rule on a request.  Id.   
 
 Claims seeking different types of remedy, such as expectation damages versus 
consequential damages, are different claims.  Id.  Presenting a materially different factual 
or legal theory (e.g., breach of contract for not constructing a building on time versus 
breach of contract for constructing with the wrong materials) creates a different claim.  
Id.  We must go beyond the face of claims to make these distinctions.  Id.  For example, 
although there may be a common type of fact involved in a contractor’s various extended 
overhead claims (i.e., a cause of delay), that does not necessarily mean that each claim 
involves proof of a common or related set of operative facts.  Id.  Such a “factual thread” 
is not determinative of whether there is only a single, unitary extended overhead claim.  
Id. 
 
 Consequently, a contractor’s monetary claim must not only state a bottom-line 
sum certain for the overall claim, it must also state a sum certain for any distinct claim 
component within the overall claim.  Id.  If no sum certain is specified, the contracting 
officer cannot settle the claim by awarding a specific amount of money, because such a 
settlement would not preclude the contractor from filing suit seeking the difference 
between the amount awarded and some larger amount never specifically articulated to the 
contracting officer.  Id. 
 
 Above we have found that each of the following purported claims (the 
government’s jurisdictional challenge to which comprises the whole of the government’s 
motion to dismiss), which ECCI presented to the contracting officer as single claims, 
consists of more than one set of materially different, unrelated operative facts, and 
therefore consists of more than one “sub-claim,” for which sub-claims ECCI did not 
provide the contracting officer separate sums certain:  (1) Additional Outlets and 
Changed Configurations; (2) Additional and Changed Flexible Metal Conduit; 
(3) Legrand Raised Floor Communications Outlets; (4) 144 Port Fiber Optic 

21 
 
Combination Units; (5) Trunk and Splice OSP Configuration, (6) Changed Direction 
Regarding Design and Provision of UPS System; (7) UL/R410 HVAC and Change to 
Accommodate Schedule; (8) Server Cabinets and Relay Racks; and (9) Additional 
Ladder Rack and Cable Tray.  Because ECCI did not specify for the contracting officer 
those separate sums certain, the Board does not possess jurisdiction to entertain those 
nine purported single claims, which are, consequently, dismissed from the appeal.   
  
 Citing Phi Applied Physical Sciences, Inc., ASBCA No. 56581, 13 BCA ¶ 35,308 
at 173,337, ECCI invokes the rule that the sum certain requirement is met if the sum, 
although not expressly totaled by the contractor, “is readily calculable by simple 
arithmetic” (app. opp’n at 31-32), saying that: 
 
[T]he Government could have determined the sum certain 
attributable to any of the alleged sub-sub-claims via simple 
math using the PDF cost documentation included in ECCI’s 
claim.  For each alleged sub-sub-claim, the Government 
needed only to add up the relevant quantities for a particular 
issue, and then apply the relevant unit pricing for those items. 
 
(App. opp’n at 31-32)  In support of that position, ECCI refers the Board to the affidavit 
of Scott A. Hayward, who describes, referencing spreadsheets from ECCI’s submission 
to the contracting officer, how he says the sums certain for sub-claims can be calculated 
(app. opp’n at 31-32, ex. 1 at ¶¶ 5-31 (citing R4, tab 75 at 87-117, tab 321)).  Having 
reviewed that affidavit and those spreadsheets, we disagree that sums certain for the 
sub-claims at issue are readily calculable by simple arithmetic.  Rather, as the 
government points out (gov’t reply at 32), ECCI offers calculations like the following: 
 
To calculate the costs associated with the additional outlets 
due to “rounding up,” you would:  1) in Additional Changed 
Outlets worksheet, zero out all items in Cells E6-L263 other 
than those in Rows 6-40, 140, 177-185, 204 and 245; 2) in the 
Outlet Quantities worksheet, zero out all items in Cells B23-
Q181 except those in Rows 23, 96, 120, 134 and 169; and 
3) in the Added Outlet Pricing worksheet, delete the entry in 
Row 19, with the total direct cost of $143,155.58 in Cell J20. 
After adding G&A and profit, the total sum is $165,974.25. 
 
 (app. opp’n, ex. 1 at 6 ¶ 27)  That is not simple arithmetic.  Cf. Taj Al Rajaa Co., 
ASBCA No. 58801, 14-1 BCA ¶ 35,522 at 174,104 (“Since the alleged contract specified 
the monthly unit price of $2,516, by simple arithmetic the claim amounted to $25,160.”); 
Mulunesh Berhe, ASBCA No. 49681, 96-2 BCA ¶ 28,339 at 141,520 (simple 
multiplication of lease rental rate by number of months resulted in sum certain); 
Dillingham Shipyard, ASBCA No. 27458, 84-1 BCA ¶ 16,984 at 84,612 (sum certain 

22 
 
determinable by multiplying hourly rate by claimed hours).  ECCI fails to demonstrate 
that the sums at issue are readily calculable by simple arithmetic.  See ECCI, 21-1 BCA 
¶ 37,862 at 183,856 (citing cases). 
 
CONCLUSION 
 
 The government’s partial motion to dismiss for lack of jurisdiction is granted, and 
the purported claims identified above are dismissed from the appeal. 
 
 Dated:  November 9, 2021 
 
 
 
 
 
 
 
 
 
 
 
TIMOTHY P. MCILMAIL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
  


23 
I certif
y 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: 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals 
  November 10, 2021