ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeals of -- ) 
 ) 
ECC International LLC ) ASBCA Nos. 60165, 60282 
 ) 
Under Contract No. W912DQ-11-C-4015 ) 
 
APPEARANCE FOR THE APPELLANT: R. Dale Holmes, Esq. 
  Cohen Seglias Pallas Greenhall & Furman PC 
   Philadelphia, PA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
  Engineer Chief Trial Attorney 
Sara L. Hinkle, Esq. 
 Matthew Tilghman, Esq. 
   Engineer Trial Attorneys 
   U.S. Army Engineer District, Middle East 
   Winchester, VA 
 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE  
PARTIES’ CROSS-MOTIONS FOR SUMMARY JUDGMENT 
 
The parties cross-move for summary judgment on several issues regarding the 
construction of a facility in Afghanistan:  (1) whether the contract’s 365-day 
performance period is a warranty that the contract could be completed within that time 
(gov’t mot. at 16-21; app. cross-mot. at 52-85); (2) whether the government withheld 
superior knowledge (gov’t mot. at 21-22; app. cross-mot. at 111-18); (3) whether the 
government breached the duty of good faith and fair dealing (gov’t mot. at 23-24; app. 
cross-mot. at 86-110); and (4) whether the contract was commercially impossible or 
impracticable (gov’t mot. at 13-16; app. cross-mot. at 119-25). 
 
DECISION 
 
Summary judgment shall be granted if the movant shows that there is no 
genuine dispute as to any material fact and the movant is entitled to judgment as a 
matter of law.  Avant Assessment, LLC, ASBCA No. 58867, 15-1 BCA ¶ 36,067 
at 176,127 (citing FED. R. CIV. P. 56(a)).  When considering a motion for summary 
judgment, the Board’s function is not to weigh the evidence and determine the truth of 
the matter, but to determine whether there is a genuine issue for trial.  Raytheon Co., 
Space & Airborne Sys., ASBCA No. 57801 et al., 15-1 BCA ¶ 36,024 at 175,948. 
 

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We conclude that, on these motions (consisting of over 200 pages of briefing 
proposing 343 facts (of which only about a third are the subject of unqualified 
concurrence)), only one of the issues addressed is amenable to summary judgment:  
whether the contract’s 365-day performance period is a warranty that the work could 
have been completed within that period.  The answer is no.  It is undisputed that on 
May 17, 2011, the government awarded the contract to appellant for $29,842,615.36, 
with a performance period of 365 days commencing from the July 5, 2011 issuance of 
the Notice to Proceed (gov’t mot. at 10 ¶ 16; app. cross-mot. at 3 ¶ 16).  A due date 
specified in a contract is not a warranty by the government that the contract can be 
performed within the prescribed due date; to the contrary, it is the contractor, 
presumably aware of the performance requirements and its own capabilities, that 
assumes the risk of performing by the specified due date.  See Finast Metal Prod., Inc., 
ASBCA No. 19860, 85-1 BCA ¶ 17,873 at 89,521 (citing Am. Ship Bldg. Co. v. United 
States, 654 F.2d 75 (Ct. Cl. 1981)).  Appellant does not persuade us to depart from that 
long-standing rule.  Consequently, we enter summary judgment that the contract’s 
365-day performance period is not a warranty that the contract work could be 
completed within that period. 
 
Otherwise, we conclude that fact-finding either after a hearing or pursuant to 
Rule 11 proceedings will be required to resolve the issues presented.  Cf. GSC Constr., 
Inc., ASBCA Nos. 59402, 59601, 16-1 BCA ¶ 36,396 at 177,435 (denying summary 
judgment because of the need for “further development of the record, presumably 
during a hearing on the merits”).  For example, regarding whether the government 
breached the duty of good faith and fair dealing, determinations of the reasonableness 
of a party’s acts and conduct are not ordinarily amenable to summary judgment, see 
THINKQ, Inc., ASBCA No. 57732, 13 BCA ¶ 35,221 at 172,826-27 (citing 
BearingPoint, Inc., ASBCA No  55354, 08-2 BCA ¶ 33,890 at 167,733), and we see 
nothing out of the ordinary here.  For another example, on whether the government 
withheld superior knowledge, neither party has demonstrated that there is no genuine 
dispute regarding whether the allegedly withheld knowledge was vital, which is an 
element of the superior knowledge doctrine.  See Am. Ship Bldg., 654 F.2d at 79. 
 
For another, regarding whether the contract was impossible or impracticable, 
commercial impracticability is a subset of the doctrine of legal impossibility, which 
excuses performance when costs become excessive and unreasonable due to an 
unforeseen supervening event not contemplated by the contracting parties.  Spindler 
Constr. Corp., ASBCA No. 55007, 06-2 BCA ¶ 33,376 at 165,462.  A contract is 
commercially impracticable when performance would cause extreme and unreasonable 
difficulty, expense, injury, or loss to one of the parties.  Raytheon Co. v. White, 
305 F.3d 1354, 1367 (Fed. Cir. 2002).  Neither party quantifies, identifies, or puts into 
any contractual context the alleged “difficulty, expense, injury, or loss” that appellant 
says constitutes the commercial impracticability it encountered (gov’t mot. at 13-16; 
app. cross-mot. at 119-25).  Cf. Nedlog Co., ASBCA No. 26034, 82-1 BCA ¶ 15,519 

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at 76,986 (“A loss of $19,439.48 on a contract of approximately $149,000 does not 
equate to commercial . . . impracticability.”). 
 
For at least these reasons, we deny the remainder of the parties’ cross-motions.  
Accordingly, we find it unnecessary, at this stage, to address any of the parties’ other 
arguments, including whether the Board possesses jurisdiction to entertain whether 
appellant has waived these claims as a result of a January 15, 2015 agreement (gov’t 
mot. at 11-12 ¶ 19 (citing R4, tab 91); app. cross-mot. at 125-26). 
 
CONCLUSION 
 
The government’s motion for summary judgment that the contract’s 365-day 
performance period is not a warranty that the contract could be completed within that 
time is granted.  Otherwise, the parties’ cross-motions for summary judgment are 
denied. 
 
Dated:  June 2, 2020 
 
 
 
TIMOTHY P. MCILMAIL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
I concur 
 
 
 
 I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 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 Nos. 60165, 60282, Appeals of 
ECC International LLC, rendered in conformance with the Board’s Charter. 
 
Dated:  June 2, 2020 
 
 
       
  
PAULLA GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals