ARMED SERVICES BOARD OF CONTRACT APPEALS 
OPINION BY ADMINISTRATIVE JUDGE CATES-HARMAN 
 
 This appeal arises from a contract between Meltech Corporation, Inc. 
(“Meltech” or “appellant”), and the U.S. Army Corps of Engineers (“USACE” or 
“government”) for a Multiple Award Task Order contract that included both 
Design-Build and Design-Bid-Build construction projects within the Baltimore District 
Area of Responsibility, and the September 30, 2014 award by USACE of a Firm- 
Fixed-Price Task Order No. 0002 to Meltech for all costs in connection with the 
renovation, design and construction of Building 8609, located at Ft. Meade, MD.   
This appeal is related to fifteen (15) other appeals that were consolidated and heard by  
the Board.
∗ 
 
 In this appeal, Meltech claims that the government interfered with its work by 
changing its base access policy, making it much harder and causing delay to get access to 
the base for Meltech’s workers and drivers.  On November 1, 2017, Meltech filed its 
request for equitable adjustment seeking, in part, 87 days of delay caused by 
unforeseen/changed conditions associated with badging and base access during the time 
 
∗  ASBCA Nos. 61694, 61762, 61763, 61764, 61765, 61766, 61767, 61869, 61870, 
61871, 61872, 62091, 62987.  The lead appeal is ASBCA No. 61694.  A 
decision on summary judgment was issued on ASBCA Nos. 61706 and 61768 
on December 17, 2021.  A decision on the merits was issued on July 16, 2025, in 
ASBCA Nos. 61766, 61767, 61872.  Familiarity with those decisions is presumed. 
Appeal of - )  
 )  
Meltech Corporation, Inc. ) ASBCA No. 61765 
 )  
Under Contract No. W912DR-14-D-0021 )  
   
APPEARANCES FOR THE APPELLANT: Leonard A. Sacks, Esq. 
  Leonard A. Sacks & Associates, P.C. 
  Rockville, MD  
Fred A. Mendicino, Esq.  
  Faughnan Mendicino PLLC 
  Dulles, VA 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Adam J. Kwiatkowski, Esq. 
   Engineer Trial Attorneys 
   U.S. Army Engineer District, Baltimore 

2 
 
period of December 2016 to April 2017.  Specifically, Meltech claims that after the 
change in the security policy, it was required to provide sponsorship, escort duties, and 
delivery impacts for getting workers base access and clearance.  On April 30, 2018, 
Meltech converted its request for equitable adjustment to a claim.  The contracting officer 
did not issue a final decision.  Meltech timely appealed to the Board on a deemed denial 
basis on August 23, 2018, and the Board has jurisdiction over these appeals under the 
Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109.  A nine-day hearing was held 
via videoconference for the fifteen (15) Appeals.  For the reasons stated below, we deny 
Appeal No. 61765. 
 
FINDINGS OF FACT 
 
Background 
 
1.  On June 10, 2014, USACE issued a Request for Proposals (RFP) for a Multiple 
Award Task Order Contract (MATOC) that included design-build and design-bid-build 
construction projects within the Baltimore District [A]rea of Responsibility.  This was 
Phase 1 of a two-phase construction procurement.  (Joint Stipulations of Fact (JSOF) ¶ 1; 
R4, tab 2))  
 
2.  The MATOC included renovating several similar dormitory buildings at Fort Meade, 
including Building 8609 (JSOF ¶ 3). 
 
3.  On August 14, 2014, USACE issued Amendment 0003 to RFP W912DR-14-R-0003 
for two seed projects under the MATOC to provide Design Criteria for the Design-Build 
renovation of Building 8609 at Fort Meade and Building 4501 at Aberdeen Proving 
Ground.  Each task order was to be awarded separately (JSOF ¶ 7). 
 
4.  On September 15, 2014, Meltech submitted its technical and cost proposals for the 
Building 8609 renovation.  Meltech’s proposal included a preliminary schedule.  
According to this schedule, the design period would begin on November 18, 2014, and 
end on June 4, 2015.  The construction period would begin on May 29, 2015, and end on 
April 26, 2016.  (JSOF ¶¶ 11-12) 
 
5.  On September 29, 2014, USACE awarded Meltech Base Contract 
No. W912DR-14-D-0021.  On September 30, 2014, USACE awarded Task Order 
Contract No. 0002 to Meltech for the renovation of Building 8609 at Fort Meade.  The 
Task Order Contract provided Meltech with a 540-calendar day performance period 
beginning from the Notice to Proceed date.  The Notice to Proceed was issued on 
November 17, 2014, and the original completion date was May 10, 2016.  (JSOF ¶¶ 13-
16) 
 

3 
 
BASE ACCESS, CONSTRUCTION PHASE DELAYS – ASBCA No. 61765 
 
Fort Meade heightened security 
 
6.  When the project began in 2014, Fort Meade was an “open base,” and anyone with 
valid identification could enter the base (R4, tab 199 at 1-3; tr. 4/30, 212).  
 
7.  On March 11, 2016, Fort Meade Director, Directorate, Plans, Training, Mobilization 
and Security, sent an email addressing “New Installation Access Procedures,” with an 
effective date of April 4, 2016.  The new procedures aligned “with U.S. Army standards 
across military posts world-wide.”  (App. supp. R4, tab 555 at 6-9)  These were base-
wide security changes initiated by Fort Meade for general security reasons (tr. 4/32-33, 
212-13).  Once the new base access policies were implemented, visitors were required to 
get a permit or pass to enter the property (tr. 4/212).  The change in policy was made by 
Fort Meade Security (tr. 4/31).   
 
8.  Attached to the March 11, 2016 email was a pamphlet titled “The New Installation 
Access Procedures,” which explained that “[i]ndividuals without DoD-issued ID cards 
must obtain a Fort Meade Access pass from the Visitor Control Center . . . [and] 
[f]requent visitors are encouraged to pre-register for a long-term . . . pass.”  The 
installation access procedures included a telephone number for questions surrounding 
Fort Meade access.  (App. supp. R4, tab 555 at 6-9)   
 
9.  Attached to the New Installation Access Procedures pamphlet were common questions 
and answers, including, “how can I enter Fort Meade if I don’t have a military ID card? . . 
. A valid reason to visit the installation. . . . A Fort Meade Access pass.”  The pamphlet 
provided two options to obtain a Fort Meade access pass: a one-day pass and multi-day 
access passes.  The one-day pass required an enhanced driver’s license or a U.S. Passport 
and submission to an NCIC III background check through the Fort Meade Visitor Control 
Center (FMVCC).  The multi-day pass required a completed FGGM 192 form and 
appropriate identification (three options).  Option 1 included the driver’s license, birth 
certificate, and social security card; option 2, U.S. Passport and social security card; 
option 3, for visitors who did not have an enhanced driver’s license, the process required 
a U.S. Passport, social security card, and driver’s license.  Submission procedures for 
new badging required a requestor to provide scanned documents in color (app. supp. R4, 
tabs 555 at 2, 10-11; 603; R4, tab 199 at 2). 
 
10.  In response to Meltech’s questions, USACE Project Engineer Melvin Damoudt, by 
email dated April 21, 2016, described the application process, which included 
subcontractors providing their documentation to Meltech, who forwarded it to the 
USACE sponsor, who would evaluate each application, and if they approved, forward it 
to the FMVCC for review and background checks.  The Project Engineer cautioned 
Meltech that the background checks alone would likely take around 10 days.  (App. supp. 

4 
 
R4, tab 555 at 12)  FMVCC notified the USACE sponsor of the final disposition of each 
application through email, and USACE informed Meltech whether the applicant was 
cleared or rejected and the deadline to pick up the new access badge from FMVCC.  The 
Project Engineer informed Meltech that badges not timely picked up from FMVCC 
would be destroyed and the applicant would need to resubmit the access application 
package.  (App. supp. R4, tab 555 at 12; R4, tab 199 at 2)  On or about February 22, 
2017, the government transferred the sponsorship and escort duties to Meltech.  Along 
with other responsibilities, the badging application process included receiving, reviewing 
applications, and submitting them to FMVCC for approval (tr. 4/15-16).  Meltech 
submitted PCO #23 – Base Access Sponsorship & Escort Duties Change seeking 
compensation in the amount of $55,373.00 (R4, tab 198). 
 
FMVCC streamlined the badging application process, extended badging application 
deadlines, and required delivery drivers to be badged 
 
11.  In an effort to streamline the application process, on May 3, 2016, USACE instituted 
a new fillable form, FGGM 191, to be utilized immediately for submitting badging 
information (R4, tab 199 at 2; app. supp. R4, tab 555 at 19).  
 
12.  In early May 2016, Meltech was advised by the USACE Project Engineer that the 
base access expiration date would be moved from June 20, 2016 to January 31, 2017, to 
allow Meltech additional time to resubmit its applications for badging (app. supp. R4, 
tab 555 at 22).  
 
13.  On May 16, 2016, Meltech’s Senior Project Manager sent a letter to USACE 
describing its badging delays due to the new FMVCC procedures.  Meltech complained 
the documents were required to be submitted in color, causing the “subcontractors to go 
back to their personnel to have them resubmit to the new regulations,” and for Meltech to 
submit applications on the correct form.  (App. supp. Rule 4, tab 555 at 2-3)  The Senior 
Project Manager stated, “Meltech fully understands that this is not the cause of USACE 
but rather an Unforeseen/Change Condition that is out of the hands of both the client and 
contractor.”  Meltech requested an additional 49 days of delay as a result of the change to 
the badging process.  (App. supp. R4, tab 555 at 3)  
 
14.  The meeting minutes dated June 2, 2016, noted that Meltech complained that it was 
taking 2-3 weeks to get subcontractor approvals for badging (app. supp. R4, tab 554).  
 
15.  On December 1, 2016, Meltech was verbally informed that a new delivery driver 
policy was taking effect the same day, which required all delivery drivers to have a 
permanent badge to make on-base deliveries (R4, tab 199 at 4-5; app. supp. 570 at 1).  
Meltech received mixed information in its inquiries into what kind of paperwork must be 
submitted and to whom, for how long the badges would be valid, and which gate the 
delivery drives should use (app. supp. R4, tab 570 at 1).  

5 
 
16.  On December 23, 2016, the USACE Project Engineer informed Meltech, that 
effective January 20, 2017, “the government will no longer be providing escorts or 
processing installation passes to any contractor or subcontractor” (id.). 
 
FMVCC extended badging application deadlines and badging expiration dates 
 
17.  After Meltech received a confirmation email on December 28, 2016, that its 
personnel could pick up their badges no later than January 6, 2017, some personnel had 
issues with obtaining their badges; the badging office could not find their badge or had no 
record of them (app. supp. R4, tab 569).  Although some of the access badges could not 
be located, the badging office corrected the problem the same day by issuing a temporary 
30-day pass to those affected (app. supp. R4, tabs 569; 570 at 1-2).   
 
18.  In a letter dated January 4, 2017, to the Administrative Contracting Officer (ACO), 
Meltech’s Senior Project Manager stated that as its personnel badges were set to expire 
on January 31, 2017, it would submit its paperwork to the FMVCC approximately two 
weeks before the expiration deadline (app. supp. R4, tab 570 at 1).  The Senior Project 
Manager noted that “Meltech fully understands that these issues were not caused by 
USACE but rather an Unforeseen/Change Condition that is out of the hands of both the 
client and contractor” (app. supp. Rule 4, tab 570 at 2). 
 
19.  Due to ongoing badge processing delays and application issues, FMVCC extended 
most of the personnel badges set to expire on January 31, 2017, until May 31, 2017 (app. 
supp. R4, tab 603).  
 
20.  On February 9, 2017, Fort Meade’s FMVCC’s computers crashed, hindering the 
badge application process for eight days (tr. 4/65-66; app. supp. R4, tab 603)).  Meltech’s 
Project Manager acknowledged that the responsibility lay with Fort Meade, not USACE 
(tr. 4/65-66).  
 
21.  Following inquiries from the USACE concerning badging delays, FMVCC identified 
numerous errors caused by Meltech, including last minute submissions, incomplete 
paperwork, failure to follow instructions, and poor communication with FMVCC.  Over 
the course of the same time-period, FMVCC reported minimal issues with the over 3,500 
background checks it performed each month for other organizations requesting access to 
Fort Meade: 
 
We have had multiple issues with Mr. Boyd [Meltech Project 
Manager] and our application process.  The VCC processes 
over 3,500 background checks a month for 119 tenant 
organizations on Fort Meade.  We have had to push other 
organizations background checks back or accommodate last 
minute badging far too many times for this project.  Most 

6 
 
recently we received an application on a large oversized 11 x 
17 inch piece of paper.  We have to completely retype and 
print this application for processing, these issues are 
unacceptable and cannot continue. 
 
. . . As of right now Meltech is responsible because of its 
inability to provide the information required for contractor 
badging timely and properly.  There are many other USACE 
contractor sponsors completing their projects/badging without 
issue[.] 
 
(R4, tab 197 at 6) 
 
22.  The ACO’s letter dated June 16, 2017, titled “Letter of Concern,” to Meltech, 
outlined dozens of issues that negatively affected the schedule.  The ACO stated, 
“Meltech was responsible to coordinate properly and in a timely matter the access of the 
field crews, equipment and construction materials since February 15, 2017 . . . .  
However, USACE’s received two notifications via email from Fort Meade Visitor Center 
[] on May 3 and May 10, 201[7] in which proves that the delays to the project . . . was 
caused by your poor coordination with Fort Meade Visitor Center.”  (R4, tab 197 at 6)  
The ACO concluded that Meltech’s delays had been ongoing due to its “inability to 
manage the badging privileges at Fort Meade, and the delays observed . . . belongs only 
to Meltech.”  The ACO complained that Meltech “is not showing proactive actions to 
improve the schedule and prevent unnecessary delays to the project.”  (Id.)  Because of 
these and other repeated issues, the ACO advised that Meltech’s performance would be 
reflected in CPARS (R4, tab 197 at 7).  
 
Meltech requests compensation for badging delays, and the government issues a 
modification compensating Meltech for escorting and sponsorship duties 
 
23.  As of July 31, 2017, Meltech’s approved payment requisition showed the Project to 
be 98% complete (ex. A1; tr. 8/265:13-20; tr. 8/266:5-20). 
 
24.  On November 1, 2017, Meltech submitted a Request for Equitable Adjustment 
(REA) for 87 days of delay due to the unforeseen/changed conditions associated with 
badging and base access during the period of December 2016 to April 2017, for 
providing sponsorship, escort duties, and delivery impacts associated with getting base 
access for Meltech (R4, tab 199 at 5-7; app. br. at 62, ¶ 7).  Meltech’s November 1, 2017, 
REA contained a number of additional delay and compensatory equitable adjustments 
issues that are not part of this decision.   
 
25.  On April 30, 2018, Meltech requested a final decision regarding its November 1, 
2017, REA “claiming an increase in the contract amount of $1,745,350 and a contract 

7 
 
time extension of 132 calendar days” (JSOF at 35, ¶ 2; R4, tab 200). Meltech’s base access 
claim outlines two phases of delay associated with base access.  The first 
“access/badging/delivery delays [is] from March 2016 to June 2016” for 49 days.  The second 
base access claim period seeks 87 days of delay from December 2016 to April 2017.  (R4, 
tab 199 at 2-7)  
 
 
26.  The parties executed a bilateral Modification No. R00011, dated September 6, 2018, 
which compensated Meltech in the amount of $49,974 for “Base Access Sponsorship & 
Escort Duties.”  Meltech’s Chairman and CEO signed the Amendment on August 17, 
2018.  (R4, tab 201)  The modification describes the scope of work as “Base Access 
Sponsorship & Escort Duties” and “[t]he contractor shall provide all supervision, labor, 
materials, and equipment to sponsor and escort subcontractors needed to perform work 
for building 8609 in Fort Meade” (id. at 2).  The “contract completion date shall remain 
unchanged by this modification.”  The closing statement included a release of claims, 
which stated: 
 
It is understood and agreed that pursuant to the above, the 
contract time is not affected, and the contract price is 
increased as stated above, which reflects all credits due the 
Government and all debits due the Contractor.  It is further 
understood and agreed that this adjustment constitutes 
compensation in full on behalf of the Contractor and its 
Subcontractors and Suppliers for all costs and markups 
directly or indirectly attributable for the change ordered, for 
all delays related thereto, for all extended overhead costs, and 
for performance of the change within the time frame stated. 
You are hereby given Notice to Proceed with this change 
work as of the effective date of this modification as shown in 
block 16C. 
 
(Id.) 
 
27.  Appellant also relies upon a memo dated April 29, 2019, authored by the USACE 
Project Engineer.  The memo asserts that the government is liable for 85 calendar days of 
delay due to Fort Meade Base changing access regulations beginning on October 21, 
2016 (app. supp. R4, tab 872).  Any reliance by Meltech on the USACE Project 
Managers memorandum concerning government liability for delay is misplaced.  The 
April 29, 2019 memorandum was written by the project manager post-contract when 
providing input on claims to the contracting officer in the evaluation process. 
 
28.  The Contracting Officer did not issue a final decision on Meltech’s claim nor provide 
his assessment or acceptance of the conclusion reached by the Project Engineer in the 
April 29th memo (JSOF ¶ 3).  

8 
 
29.  Consistent with appellant’s position in its briefs where it seeks only the base access 
issues during the second time frame claimed, Meltech’s Senior Project Manager, 
Barry Boyd, testified there were no delays resulting from the badging issues through 
June 2016, as subcontractors were cleared and working without any consequence or delay 
from FMVCC (tr. 4/62-63).  We find that appellant and its subcontractors were not 
delayed during the first claimed phase of delay, March 2016 to June 2016, as a result of 
base access policy changes. 
 
30.  Regarding the second phase of delay due to “badging issues,” Mr. Boyd, testified 
some subcontractors were denied badging for a variety of causes, including i) failure to 
provide accurate information on the application forms, ii) failure to submit the correct 
documentation, iii) late submission of documentation, and iv) failure to pass the 
background check, including issues of character or criminal history   (tr. 4/16, 20, 45, 63-
65, 73-74).  Mr. Boyd admitted that he did not document what, if any, impacts resulted 
from badging issues (tr. 4/45, 65-66).  He testified that due to staffing issues, he did not 
attempt to separate which personnel were denied badging and how any badging issues, if 
any, may have affected the project as it “was the least of my concerns and . . . I shouldn’t 
have had to been worrying about that.  That should have been the Corps of Engineers’ 
issue” (tr. 4/65-66). 
 
31.   Mr. Boyd testified that he did not “make[] a habit of noting” in the daily reports that 
Meltech experienced issues associated with badging delays or base access (tr. 4/45).  
Other than February 16-23, 2017, Meltech’s daily reports fail to mention issues 
associated with badging delays and base access (tr. 4/47-48).  
 
32.  Prior to submitting the REA, Mr. Boyd testified he made no attempt to analyze 
whether its delays were due to a lack of work efficiency or delay from base access 
changes (tr. 4/66).   
 
DECISION 
 
Parties’ Contentions 
 
 Appellant argues that changes in the base access and security protocols starting on 
October 21, 2016, were not foreseeable, and the government is liable for the impact of 
those changes (app. br. at 88; app. reply br. at 35-36).  Relying upon Delhur Indus. v. 
United States, 95 Fed. Cl. 446, 461 (2010), appellant argues that the base access changes 
are constructive changes that were “unanticipated conditions” that caused additional work 
and delays, for which the government is liable.  
 
 The government challenges appellant’s positions and states that “[a]ny delays 
resulting from changes to Fort Meade’s base access policies are non-compensable 
pursuant to the Sovereign Acts Doctrine,” citing APTIM Fed. Servs., LLC, ASBCA 

9 
 
No. 62982, 22-1 BCA ¶ 38,127 (gov’t resp. br. at 59-60).  The government argues that 
the base access changes at Fort Meade were not caused by the Army Corps of Engineers 
and were not directed to Meltech or its subcontractors.  Instead, the changes implemented 
by the leadership of Fort Meade were directed toward all visitors for general security 
reasons.  (Id. at 59-62)  
 
Base Access Phase Delays and the Sovereign Acts Doctrine  
 
Under the sovereign acts doctrine, the government acting as a contractor cannot be 
held liable for its general and public acts as a sovereign.  StructSure Projects, Inc., 
ASBCA No. 62927, 23-1 BCA ¶ 38,416 at 186,680; Am. Gen. Trading & Contracting, 
WLL, ASBCA No. 56758, 12-1 BCA ¶ 34,905 at 171,636.  In Conner Brothers Constr. 
Co. v. Geren, 550 F.3d 1368 (Fed. Cir. 2008), the contractor was denied access to its 
work site on Fort Benning, Georgia, shortly after the attacks on September 11, 2001.  The 
Federal Circuit upheld the Board’s decision that the denial of access was a sovereign act.  
Id. at 1371, 1378-79.  The sovereign acts doctrine is not limited to certain types of actions 
by the government.  In Casitas Mun. Water Dist. v. United States, 543 F.3d 1276, 1282, 
1287-88 (Fed. Cir. 2008), the Court applied the sovereign act defense to an administrative 
agency order to meet requirements of the Endangered Species Act.  In Orlando 
Helicopter Airways, Inc. v. Widnall, 51 F.3d 258, 262-63 (Fed. Cir. 1995), the Court 
applied the sovereign act defense to a criminal investigation of the contractor.   
 
The sovereign acts doctrine “is an affirmative defense that is an inherent part of 
every government contract” on which the government bears the burden.  Id. at 1371; 
APTIM, 22-1 BCA ¶ 38,127 at 185,218.  The government bears the burden of proving 
that (1) the governmental action was public and general; and (2) the act rendered 
performance of the contract impossible.  APTIM, 22-1 BCA ¶ 38,127 at 185,218; see 
also Conner Bros., 550 F.3d at 1379.  In determining whether an act is public and 
general, we consider if the act:  (1) served a general purpose; (2) was specifically directed 
at nullifying contract rights or relieving the government of its contractual obligations; (3) 
applied exclusively to the contractor, or more broadly to other parties not in a contractual 
relationship with the government; and (4) provided an economic advantage to the 
government.  Conner Bros., 550 F.3d at 1372-75; M.E.S., Inc., ASBCA No. 56149 et al., 
12-1 BCA ¶ 34,958 at 171,856, aff'd 502 F. Appx. 934 (Fed. Cir. 2013) (holding that a 
change to base access requirements that delays a contractor constructing a facility on that 
base is a sovereign act); Garco Const. Inc., ASBCA No. 57796, 15-1 BCA ¶ 36,135 
at 176,378-79, aff’d 856 F.3d 938 (2017).  In M.E.S., the contractor sought damages, 
claiming that the revised base access policy resulted in its employees spending an hour 
each day gaining access to the installation.  The Board found the change in the base 
access policy was a sovereign act and applied the following criteria:   
 
With respect to the claimed price adjustment for the delay, we 
have found above that the changed entry procedures were 

10 
 
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 specifically to nullify contract rights, and 
they provided no economic advantage to the government. . . . 
We conclude that the changed entry procedures were a 
sovereign act of the government for which no monetary 
compensation is due.  See Conner Bros. Constr. Co. v. Geren, 
550 F.3d 1368 (Fed. Cir. 2008). 
 
M.E.S., 12-1 BCA ¶ 34,958 at 171,856. 
 
We apply these same standards to arrive at our decision here.  The change to the 
Ft. Meade access policy was required by the installation, not USACE.  The March 11, 
2016, notice of the “New Installation Access Procedures” was issued by the Fort Meade 
Director, Directorate, Plans, Training, Mobilization and Security (finding 7).  The 
changes were public and general in nature and applicable to all visitors to what was a 
previously open installation (finding 6).  The new entry procedures were not directed 
at nullifying contract rights but were intended to enhance the physical security of the 
installation and align with U.S. Army standards across military posts worldwide 
(finding 7).  The impact on Meltech’s contract rights was incidental to the “broader 
governmental objective.”  M.E.S., 12-1 BCA ¶ 34,958 at 171,856.  The actions here, 
while hindering Meltech’s performance under the contract, was a public and general act 
as a sovereign.  There was no evidence that the new policy was intended to invalidate 
contract rights or that it provided an economic advantage to the government.  (Findings 
7-9)  We conclude that the implementation of the “New Installation Access Procedures” 
effective April 4, 2016, by the Fort Meade Director, Directorate, Plans, Training, 
Mobilization, and Security, was a sovereign act, and the government is not liable for 
damages that this decision may have caused.  See Connor Bros. Constr. Co., 550 F.3d 
at 1368. 
 
While a finding that the government acted in its sovereign capacity protects the 
government from liability for financial claims, under certain circumstances the contractor 
may be entitled to additional time to perform.  APTIM, 22-1 BCA ¶ 38,127 at 185,218-
19; Troy Eagle Grp., ASBCA No. 56447, 13 BCA ¶ 35,258 at 173,061-62 (“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); M.E.S., 12-1 BCA ¶ 34,958 at 171,856.  However, 
Meltech must show it is entitled to the extra time it seeks.  Meltech maintains that, in 
addition to monetary damages it seeks, the government must grant a time extension.  
While we agree that Meltech might be entitled to additional time to perform as a result of 
the sovereign act, it must prove that any delays it suffered were the government’s fault.  

11 
 
Meltech has the burden of proving that there were government-caused delays, entitling it 
to an extension of the contract performance period.  Wilner v. United States, 24 F.3d 
1397, 1401 (Fed. Cir. 1994); Amos & Andrews Plumbing, Inc., ASBCA No. 29142, 86-2 
BCA ¶ 18,960 at 95,738; Atl. Maint. Co., ASBCA No. 40454, 96-2 BCA ¶ 28,323, 
at 141,415; States Roofing Corp., ASBCA No. 54860 et al., 10-1 BCA ¶ 34,356 
at 169,661; Hedgecock Elec., Inc., ASBCA No. 56307, 12-2 BCA ¶ 35,086 at 172,314; 
CDM Constructors, Inc., ASBCA No. 60454 et al., 18-1 BCA ¶ 37,190 at 181,011.  
 
Laying the foundation for the delays associated with its base access claim, 
Meltech dedicates a single paragraph consisting of five sentences in its post-hearing brief 
(app. br. at 88).  Meltech’s terse argument summarily concludes that its delay issues were 
not reasonably foreseeable, and since it experienced delays, it must be the fault of the 
government (app. br. at 88).  Meltech’s lone case citation, Delhur Indus., Inc. v. 
United States, 95 Fed. Cl. 446, 448 (2010), likewise does not support appellant’s 
position.  In Delhur, the court determined it was not entitled to recover on its claims 
because the contractor “presented high-level conclusory allegations unsupported by any 
concrete facts,” “did not provide the Court with sufficient evidence to show that its 
damages were caused by errors in the plans or government direction, and not by [the 
contractor’s] own mistakes,” and “has not provided evidence to show that any of its 
project delays were excusable.”  Delhur Indus., 95 Fed. Cl. 448-49.  
 
The facts that exist here, demonstrate a similar problem.  The new Fort Meade 
base access procedures were implemented to apply equally to all Army posts worldwide 
(finding 7).  Along with the announcement of the new directive, the Fort Meade Security 
Director forwarded information that included a pamphlet and “Frequently Asked 
Questions,” providing details on the implementation of the new procedure.  Entrants were 
encouraged to pre-register for long-term passes and were provided details on how to 
make that request.  Telephone numbers were provided to answer specific questions 
related to the new policy.  (Findings 8-9)  The USACE Project Engineer responded to 
Meltech’s specific questions on the process and how the USACE would assist 
(finding 10).  The email and pamphlet assisted non-military personnel on how it can 
obtain visitor passes (findings 7-9).  These detailed instructions were provided nearly a 
month before the new procedures were to take place (finding 7).  USACE’s Project 
Manager sent emails to Meltech explaining the security clearance process and required 
documents and cautioned that reviewing each applicant’s package could take a few weeks 
(finding 10).  Whatever bumps in the road that the FMVCC experienced, it worked with 
visitors to streamline the process and take into account its backlogs.  For example, the 
FMVCC provided applicants form FGGM 191 to submit their badging information, 
extended badge expiration dates to allow applicants more time to renew their badges - by 
four months when applicants needed to resubmit their paperwork for failure to provide 
the correct documents, and issued temporary 30-day badges on the same day when the 
affected worker’s application had yet to be reviewed (findings 11-12, 17-19).  We find 
that these actions show that the FMVCC acted responsibly in the implementation of its 

12 
 
new basis access procedures, considered its delays in the badging process and attempted 
to accommodate visitors accordingly. 
 
On the other hand, the evidence reveals Meltech’s numerous failures in following 
the new procedure set forth by the government for the new base access process.  The 
FMVCC complained that delays in Meltech’s badging applications were largely due to it 
submitting paperwork at the last minute, incomplete paperwork and document 
submissions, and paperwork that required the FMVCC staff to retype their document on 
Meltech’s behalf.  The FMVCC complained to USACE that while the FMVCC processed 
thousands of applications every month for over a hundred different organizations, it had 
to delay other applicants to accommodate Meltech’s last-minute applications.  
(Findings 21-22)  The FMVCC sent two separate letters to USACE outlining the badging 
delays complained by Meltech, which appear to be unique to Meltech due to its inability 
to follow directions (finding 21).   
 
The FMVCC’s observations of Meltech’s inability to submit paperwork properly 
are consistent with testimony by Meltech’s Senior Project Manager, who testified that 
subcontractors were denied badges for a variety of reasons, including i) not providing 
accurate information on their application forms, ii) failing to submit the correct 
documentation, iii) not submitting documentation timely, and iv) some applications failed 
the background check or were rejected for issues of character or criminal history 
(finding 30).   
 
As discussed above, the issue of a change in security measures at military bases, 
which temporarily limits contractors’ access to the base, is not new.  G & S Const., Inc., 
ASBCA No. 28677, 86-1 BCA ¶ 18,740 involved a contract for construction services in 
connection with the improvements within Minot Air Force Base.  Changes to safety 
policy nationwide by Air Force Headquarters required more extensive security 
procedures to enter Air Force installations.  The new procedures required contractors to 
provide more extensive documentation.  Although the contractor began to immediately 
comply with the new directives, the contractor experienced significant delays and was not 
allowed on the base.  The delays were found to be attributable to Air Force personnel not 
timely processing paperwork, not providing direction to non-military personnel on how to 
proceed, and continually canceling meetings to discuss these issues over a period of six 
months.  During the contractor’s “downtime” due to the lack of base access, the 
contractor diligently worked on other non-base access tasks and documented its delays.  
The Board determined the Air Force’s delays were unreasonable.  G & S Const., Inc., 
86-1 BCA ¶ 18,740 at 94,299-309.  
 
In contrast to G & S Construction, the delays here were attributable to Meltech’s 
actions or inaction; the delays were not the fault of the USACE or the FMVCC.  Meltech 
failed to timely submit its paperwork to the FMVCC, and when it was submitted, it was 
completed incorrectly.  Any delays attributable to the FMVCC were met with 

13 
 
accommodations, time extensions, or extending badging expiration dates (findings 12, 17, 
19).  The FMVCC’s policy is to have applications submitted on a streamlined form, with 
complete color copy documents, within a few weeks, which is reasonable for Fort Meade 
to ensure the safety and protection of its military personnel and facilities.  In 3N Co., Inc., 
ASBCA No. 30620, 85–3 BCA ¶ 18,282 at 91,756-757, one of the contractor’s 
employees was a resident alien and, therefore, denied an escort badge for the restricted 
area.  There, we held that bidders were put on notice of conditions affecting the issuance 
of escort badges and that the conditions imposed by the government were not 
unreasonable.  Thus, any delays and damages were solely the fault of the contractor.  
 
Moreover, the record is devoid of probative evidence establishing any impact of 
the badging background checks and base access.  Meltech’s Daily Reports fail to mention 
issues associated with badging delays and base access (finding 30).  We give little 
credence to Meltech’s contentions and the hearing testimony that its operations were so 
complex and demanding that its Project Manager could not be bothered with mundane 
tasks of ensuring its workers submitted the proper documents in a sufficient amount of 
time to obtain base access and badging or document this purported issues in the Daily 
Reports (findings 30-31).  We find Meltech to be at fault for any delay it might have 
suffered as a result of the new base access process.  In addition, there was no reasonable 
explanation from Meltech, as to why it was unable to timely submit the necessary 
documentation on the appropriate form concerning its workers to ensure their availability.  
Among other things, there has been no showing of when and what specific instances of 
delay and disruption occurred nor why they could not have been eliminated or adverse 
impacts reduced by proper planning.  (Findings 30-32)  Meltech’s Senior Project 
Manager testified that he did not “make[] a habit of noting” in the daily reports that it 
experienced issues associated with badging delays or base access, made no attempt to 
separate out which personnel were denied badging and how any badging issues, if any, 
may have affected the project as it “was the least of my concerns and…I shouldn’t have 
had to been worrying about that.  That should have been the Corps of Engineers’ issue,” 
and he made no attempt prior to submitting its REA to analyze whether its delays were 
due to Meltech’s own failures to follow the new base access changes.  (Findings 30-32)  
Our findings detail this failure of proof.  Meltech has not met its burden of showing that 
USACE caused or contributed to the delay by the implementation of the new base access 
security procedures.   
 
For these and other reasons recited in our findings, we conclude that Meltech has 
not demonstrated that the additional security requirements to obtain access to Fort Meade 
were unreasonable or whether they caused it to incur any delays or additional costs.  To 
the contrary, the evidence more succinctly demonstrates that any delay caused by the new 
base access procedure was a result of Meltech’s actions or lack thereof.  Compare G & S 
Const., Inc., 86-1 BCA ¶ 18,740; see generally Lebolo-Watts Constructors 01 JV, LLC, 
ASBCA No. 59740, 21-1 BCA ¶ 37,789.  We have considered all of Meltech’s 
arguments and we find no path to award them the time it requests.  

14 
 
CONCLUSION 
 
 For the foregoing reasons, the appeal is denied.  
 
 
 Dated:  January 6, 2026
 
 
 
 
 
 
 
 
 
 
 
STEPHANIE CATES-HARMAN 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 MICHAEL N. O’CONNELL 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 
 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. 61765, Appeal of Meltech 
Corporation, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated: January 6, 2026 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals