StructSure Projects, Inc.
Docket: ASBCA 62927
Decision date: 2023-08-07

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeal of - )  
 )  
StructSure Projects, Inc. ) ASBCA No. 62927 
 )  
Under Contract No. W9127S-17-D-6004 )  
   
APPEARANCE FOR THE APPELLANT: Michael S. Alfred, Esq. 
    Hallett & Perrin, PC 
    Dallas, TX 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
  Engineer Chief Trial Attorney 
Michael T. Geiselhart, Esq. 
  Engineer Trial Attorney 
  U.S. Army Engineer District, Jacksonville 
 
Allen S. Black, Esq. 
  Engineer Trial Attorney 
  U.S. Army Engineer District, Little Rock 
  
 
  
  
 
OPINION BY ADMINISTRATIVE JUDGE EYESTER  
PURSUANT TO BOARD RULE 11 
 
The U.S. Army Corps of Engineers (government or USACE) awarded 
StructSure Projects, Inc. (StructSure) a task order to perform design and alteration 
services at the David Grant Medical Center, Travis Air Force Base.  After StructSure 
began work, and due to the COVID-19 pandemic, the agency designated the task order 
non-mission essential and precluded StructSure and its subcontractors from any on-site 
activities for a period of 44 days. 
 
StructSure has filed this appeal alleging it is owed money because the 
government changed the task order requirements when it continued to use the 
temporary phasing facilities and other services provided by StructSure during the 44 
days the task order was designated non-mission essential.  The parties elected to waive 
a hearing and submit the appeal on the record pursuant to Board Rule 11.  For the 
following reasons, we grant StructSure’s appeal. 
 
  

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FINDINGS OF FACT 
 
1.  On July 14, 2017, USACE awarded multiple award task order contract 
(MATOC) No. W9127S-17-D-6004 to StructSure1 for design-build construction 
services (R4, tab 1 at 2-3).2  The MATOC incorporated by reference Federal 
Acquisition Regulation (FAR) 52.233-1, DISPUTES (MAY 2014); FAR 52.243-4, 
CHANGES (JUN 2007); and FAR 52.249-10, DEFAULT (FIXED-PRICED 
CONSTRUCTION) (APR 1984) (id. at 8-9).  The MATOC incorporated in full 
FAR 52.243-7, NOTIFICATION OF CHANGES (APR 1984) (id. at 26-28).  All 
orders issued were subject to the terms of the MATOC (id. at 32). 
 
2.  Subsequently, on September 27, 2018, USACE issued order 
No. W9127S-18-F-0112 to StructSure in the amount of $35,106,355 (R4, tab 2 at 46).  
The order contained several contract line item numbers (CLINs) for various services, 
including design and alteration services for the David Grant Medical Center, Travis Air 
Force Base (id. at 46, 48-52).  Each CLIN set forth a fixed-price amount (id. at 48-52).  
StructSure was to complete the work by March 12, 2021 (id. at 56). 
 
3.  As relevant here, CLIN 0006 required StructSure provide temporary phasing 
facilities for use at the medical center during the alteration services and was awarded 
in the fixed amount of $2,437,055 (id. at 50).  There were two temporary phasing 
facility sites--one for the Joint Radiation Oncology Center (JROC) and one for all 
others, including pediatrics (see R4, tab 13 at 158; Request for Proposal (RFP) 
Statement of Work, attach. 01 10 10 SOW D-Drawings (23May18).pdf at 13).  
StructSure’s subcontractor for the temporary phasing facilities was Sustainable 
Modular Management (Sustainable Modular) (see R4, tab 13 at 158). 
 
4.  On March 21, 2020, the government issued its first of several notices to 
StructSure stating that the Wing Leadership designated the task order award as non-
mission essential and therefore StructSure and its subcontractors could not continue 
on-site construction activity until later notified (R4, tab 4).  The notice advised 
StructSure that the government may excuse a contractor’s performance delay pursuant 
to FAR 52.249-10 and/or FAR 52.249-14 due to the COVID-19 public health 
emergency and StructSure might be entitled to non-compensable days (id.).  Several 
similar notices followed in March and April (R4, tabs 7-9). 
 
 
1 The MATOC was awarded to United Excel Corporation (R4, tab 1 at 3).  However, 
on July 1, 2019, the government issued a modification changing the 
contractor’s name to StructSure Projects, Inc. on the MATOC and all task order 
awards (R4, tab 3 at 116). 
2 Citations to the Rule 4 file are to the government’s Bates-stamped numbers.  
Citations to the briefs are to the PDF page numbers. 

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5.  On April 29, 2020, the government informed StructSure that it could 
recommence on-site construction activities (R4, tab 10).  The parties both 
acknowledge that due to COVID-19 and the task order’s designation as non-mission 
essential, StructSure was unable to perform on site for 44 days (app. br. at 5; gov’t 
reply br. at 4). 
 
6.  Two weeks later, StructSure submitted a request for equitable adjustment 
(REA) regarding the impacts of the suspension of work, mostly relating to schedule 
(R4, tab 11 at 135-36).  Some impacts included supply chain issues, remobilization 
time, and revised site procedures (id. at 135).  In response, on May 19, 2020, the 
agency issued bilateral Modification No. A00008, changing the task order completion 
date to June 19, 2021, and thereby adding 92 calendar days to the period of 
performance (R4, tab 12 at 152-53).  The modification did not increase the order price 
and explained the delay was due to the COVID-19 pandemic, which required stoppage 
of work on the project (id. at 153).  The modification, issued pursuant to the default 
clause, only accounted for the “non-compensatory time extension” as it was the 
government’s “understanding that the contractor plan[ned] to submit an REA for costs 
incurred due to the Government’s actions dealing with COVID-19” which would be 
reviewed once received for merit (id. at 154). 
 
7.  On July 2, 2020, StructSure submitted another REA stating that the 
temporary phasing facilities and associated rental furniture and equipment were in use 
by the government during the time the project was classified as non-mission essential 
and StructSure could not perform on site (R4, tab 13 at 155).  As a result, StructSure 
stated it incurred extended rental costs for the facilities, furniture and equipment 
because originally, these items were to be on site for only 13 months (id.).  However, 
due to the stoppage of work at the job site, and per the modification, the temporary 
phasing facilities were on site for 16 months (id.).  StructSure attached an itemized 
sheet of cost impacts for the temporary phasing facilities, furniture rental, medical gas 
rental, and initial outfitting services for three months, at a total cost of $278,227 (id. 
at 157).  In addition, StructSure attached documents showing the rental costs for two 
temporary phasing facilities (one for JROC and one for pediatrics), rental furniture, 
increased storage of items at the warehouse, and oxygen bottle refills (id. at 158-60).  
The agency denied the REA stating that pursuant to FAR 52.249-10, the government 
may grant extra time in response to a pandemic or quarantine, but not additional 
money (R4, tab 14). 
 
8.  StructSure next submitted an uncertified claim on September 4, 2020, 
seeking reimbursement for the same costs (R4, tab 15).  According to the claim, 
because the government occupied the temporary phasing facilities and utilized the 
rental furniture/equipment during the stoppage of work, StructSure did not have the 
opportunity to demobilize the facilities from the jobsite to prevent incurring these 

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additional costs (id.).  The claim was later certified by StructSure on February 3, 2021 
(R4, tab 18 at 190). 
 
9.  On March 30, 2021, USACE issued a contracting officer’s final decision 
(COFD) denying the claim for two reasons (R4, tab 19).  First, the agency stated that 
the exclusion from the work site was not a change as it was considered a sovereign act 
of the government and therefore pursuant to FAR 52.249-10, the contracting officer 
could issue a non-compensable extension for days lost, which the agency did (id. 
at 191).  Second, while the Coronavirus Aid, Relief, and Economic Security Act 
(CARES Act)
3 permitted compensation to a contractor to maintain its workforce, 
StructSure must bear the costs here--despite the fact the medical facility continued to 
use the temporary phasing facilities during the period StructSure was not allowed 
access--because it had a fixed-priced task order (id. at 191-92). 
 
10.  The government does not contest there is evidence (e.g., the subcontractor 
invoices) that the temporary phasing facilities cost StructSure $278,227 in additional 
rental charges from March-June 2021 (gov’t reply br. at 3-4).  In addition, the 
government “does not contest that it benefitted from using the [temporary phasing 
facilities] during the period from March 19, 2021 to June 19, 2021” (id. at 4).  We find 
StructSure provided the temporary phasing facilities and the government used them for 
patients during the 44-day stoppage of work. 
 
11.  On May 14, 2021, StructSure filed a notice of appeal of the COFD with the 
Board and later filed its complaint.  In its complaint, StructSure contends the 
government used and occupied the temporary phasing facilities during the shutdown, 
and for three months beyond the contracted lease terms that ended on February 16, 
2021, for the pediatric facility and March 6, 2021, for the JROC unit (compl. ¶¶ 2-3). 
 
DECISION 
 
StructSure argues that the temporary phasing facilities remained on site for 
three months longer than originally anticipated, triggering a clause in its subcontract 
with Sustainable Modular and obligating it to pay additional monthly rental payments 
(app. br. at 1).  According to StructSure, COVID-19 did not stop work at the base, as 
evidenced by the fact government personnel continued to use StructSure’s leased 
temporary phasing facilities (id.).  StructSure argues that it is entitled to an adjustment 
for the change pursuant to FAR 52.243-7(e), NOTIFICATION OF CHANGES, and 
general equitable principles as the contract price did not reflect the costs associated 
with an extended lease period (id. at 2-3).  In this regard, StructSure argues that 
FAR 52.243-7(e) requires an adjustment to the task order price when government 
 
3 The COFD is referring to Pub. L. No. 116-136, 134 Stat. 281 (Mar. 27, 2020). 
 

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conduct effects a change causing an increase in the contractor’s cost (app. br. at 3, 11; 
app. reply br. at 4-5). 
 
The government argues that FAR 52.243-7, NOTIFICATION OF CHANGES, 
is irrelevant because as its name implies, it only addresses the process for notification 
and the processing of changes (gov’t reply br. at 3).  While StructSure argues in its 
legal briefs that FAR 52.243-7 governs, we conclude the crux of its argument, as set 
forth in the REA, claim, complaint, and briefs is that the government changed the task 
order requirements.  As noted, the task order incorporated by reference FAR 52.243-4, 
CHANGES (JUN 2007), which provides that the contracting officer shall make an 
equitable adjustment and modify the award for any change causing an increase in the 
contractor’s cost.  FAR 52.243-4(d). 
 
Here, the task order and CLIN 0006 were fixed-priced.  The government 
contends that the risk of a pandemic is always borne by the contractor in a fixed-priced 
task order, with the exception of the grant of a non-compensable extension of time 
pursuant to the default clause (gov’t reply br. at 3).  The default clause, however, 
would not apply to performance of CLIN 0006 because StructSure provided the 
temporary phasing facilities (finding 10). 
 
With respect to fixed-priced awards, the FAR explains that they are “not subject 
to any adjustment on the basis of the contractor’s cost experience in performing the 
contract” and “places upon the contractor maximum risk and full responsibility for all 
costs and resulting profit or loss.”  FAR 16.202-1.  The FAR also states it provides an 
“incentive for the contractor to control costs and perform effectively. . . . ”  Id. 
 
The issue in this appeal is not cost control by the contractor.  And although 
StructSure assumed maximum risk, the government modified the task order and 
changed the completion date which required use of the temporary phasing facilities for 
a longer period of time.  We therefore conclude the government changed task order 
CLIN 0006 to utilize the temporary phasing facilities for additional time. 
 
The government contends, as it did in the COFD, that StructSure cannot recover for 
these additional costs incurred due to the sovereign acts defense (gov’t reply br. at 6-9).  
The government argues the defense applies here because the base leadership suspended all 
non-mission essential activities at the base due to the COVID-19 global pandemic, not just 
work relating to StructSure’s task order (id.).  In this regard, the government explains 
StructSure is only entitled to a non-compensable delay which is why the government 
issued bilateral Modification No. A00008 changing the task order completion date to 
June 19, 2021 but not increasing the task order price (see id. at 1, 3, 5). 
 
The sovereign acts defense “is an affirmative defense that is an inherent part of 
every government contract.”  Aptim Fed. Servs., LLC, ASBCA No. 62982, 22-1 BCA 

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¶ 38,127 at 185,218 (quoting Conner Bros. Constr. Co., v. Geren, 550 F.3d 1368, 1371 
(Fed. Cir. 2008)).  The sovereign acts defense is simply that the government, when 
sued as a contractor, cannot be held liable for its general and public acts as a 
sovereign.  Horowitz v. United States, 267 U.S. 458, 461 (1925); Conner Bros. Constr. 
Co., 550 F.3d at 1371; Am. Gen. Trading & Contracting, WLL, ASBCA No. 56758, 
12-1 BCA ¶ 34,905 at 171,636.  The defense ensures the government, as the 
contracting party, is treated the same as a private contractor whose performance is 
rendered impossible or impracticable due to an act by the government acting as a 
sovereign.  Century Exploration New Orleans, LLC v. United States, 110 Fed. Cl. 148, 
176 (2013), aff’d, 745 F.3d 1168 (Fed. Cir. 2104).  Accordingly, the defense precludes 
a contractor from monetary recovery for damages from the government acting akin to 
a private contractor resulting from the government separately acting in its sovereign 
capacity.  See JE Dunn Constr. Co., ASBCA No. 62936, 22-1 BCA ¶ 38,123 
at 185,191. 
 
The following is the test for determining whether the defense applies:  (1) the 
government’s sovereign act is public, general, and only incidentally falls upon the 
contract or order, and (2) the sovereign act renders performance by the government 
acting akin to a private contractor impossible or impracticable under the principles of 
contract law.  Am. Gen. Trading & Contracting, 12-1 BCA ¶ 34,905 at 171,637 
(citations omitted).  Therefore, “[t]he first question is whether the government’s 
performance of the contract has been frustrated or obstructed by a public and general 
act (i.e., the sovereign act).  Id.  In other words, the government acting as a contractor 
must have breached the contract.  See Century Exploration, 110 Fed. Cl. at 181-82 (the 
defense “applies only when there has been a breach of contract” and “the existence of 
a breach is a prerequisite to its applicability.”). 
 
Here, the parties do not dispute that the government’s actions in limiting base 
access to only mission essential personnel due to COVID-19, and finding StructSure’s 
task order non-mission essential and therefore precluding StructSure from on-site 
construction activity, was a public and general sovereign act (see app. reply br. at 2-3; 
gov’t reply br. at 7-9).  The government, however, also contends that “there is no 
dispute that the Government’s actions rendered performance impossible—the 
contractor was excluded from accessing the base in order to perform the contract” 
(gov’t reply br. at 7 n.4). 
 
We agree the government prevented StructSure from entering the base to 
perform construction work due to a sovereign act.  We also agree this caused a delay 
in completion of the alteration work to the building and the need for the temporary 
phasing facilities for a longer duration.  However, supplying the temporary phasing 
facilities was a separate CLIN under the fixed-priced task order (finding 3) and 
StructSure met its deliverable (see finding 10).  In this regard, the government did not 
breach the task order and preclude StructSure from delivering or delay the delivery of 

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the temporary phasing facilities.  See Century Exploration, 745 F.3d at 1180 (because 
the court found the government did not breach the implied duty of good faith and fair 
dealing, there was no reason to reach the government’s sovereign acts defense); 
Anham FZCO, LLC, ASBCA No. 59283, 17-1 BCA ¶ 36,817 at 179,442 (government 
failed in its motion for summary judgment to prove that a sovereign act made it 
impossible for the agency to cooperate with the contractor’s performance). 
 
Again, StructSure delivered the temporary phasing facilities and they were used 
by the government for ongoing medical treatments of patients (finding 10).  This is not 
an instance where Structure failed to provide the temporary phasing facilities and may 
only be entitled to non-compensable extra time for a delay or relief from default 
termination.  This is also not an instance where StructSure failed to provide the 
temporary phasing facilities and the government would still have needed them, and 
needed to acquire them, and therefore pay for them.  Accordingly, the sovereign acts 
defense does not apply and StructSure is entitled to compensation. 
 
CONCLUSION 
 
For the foregoing reasons, the appeal is sustained and returned to the parties for 
a determination of quantum consistent with this decision. 
 
 
Dated:  August 7, 2023 
 
 
 
 
 
 
 
 
 
 
 
LAURA EYESTER 
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 
 
 

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I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 62927, Appeal of 
StructSure Projects, Inc., rendered in conformance with the Board’s Charter. 
 
Dated:  August 8, 2023 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals