ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 
ON THE GOVERNMENT’S PARTIAL MOTION TO DISMISS 
  
 The United States Court of Appeals for the Federal Circuit has remanded to the 
Board this appeal arising from the construction of a military compound in Afghanistan 
to evaluate whether the government forfeited its right to challenge whether appellant, 
ECC International Constructors, LLC (ECCI), satisfied the mandatory but non-
jurisdictional “sum-certain requirement” with respect to the May 2, 2014 monetary 
claims presented to the contracting officer that are addressed in the Board’s 
November 10, 2021 opinion, and, if it did, to consider this case on the merits, as 
instructed by the court’s opinion in ECC Int’l Constructors, LLC v. Sec’y of Army 
(ECCI), 79 F.4th 1364, 1380 (Fed. Cir. 2023), arising from a companion appeal.  
Familiarity with that opinion is presumed.  The court recited the facts to be considered: 
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 
Martin Chu, Esq.  
    Engineer Trial Attorney 
    U.S. Army Engineer District, Baltimore 
   
Katherine M. Smith, Esq. 
  Engineer Trial Attorney 
  U.S. Army Engineer District, Middle East 
  Winchester, VA 

2 
 
The U.S. Army Corps of Engineers awarded ECCI a 
contract in 2010 to design and build a military compound 
in Afghanistan.  On May 2, 2014, ECCI submitted a claim 
to the contracting officer under the Contract Disputes Act 
(“CDA”), 41 U.S.C. §§ 7101–7109, seeking $3,767,856.32 
in relief for additional costs it allegedly incurred due to 
government directives to perform extra work.  After years 
of litigation and a hearing on the merits in June 2020, the 
government moved to dismiss nine out of 23 direct cost 
items identified in ECCI’s claim for lack of subject-matter 
jurisdiction, arguing that each of those nine cost items 
comprises multiple sub-claims that require, but failed to 
state, their own sum certain.  The Board granted the 
government’s motion to dismiss. 
 
ECC Int’l Constructors, LLC v. Sec’y of Army, No. 2022-1368, 2023 WL 5367474, 
at *1 (Fed. Cir. Aug. 22, 2023). 
 
The government says that it has forfeited its right to challenge ECCI’s 
satisfaction of the sum-certain requirement with respect to only three items (additional 
outlets and changed configurations, 144 port fiber optic communication units, and 
additional ladder rack and cable tray) of the nine raised addressed in the court’s 
opinion, pointing to the Board having entered summary judgment upon those three 
items in ECC Int’l Constructors, ASBCA No. 59138 et al., 19-1 BCA ¶ 37,281 
at 181,387-88, prior to the hearing of this appeal.1  Accordingly, we view any 
sum-certain challenge to those three items as forfeited.  With respect to the remaining 
six of the nine items addressed in the court’s opinion, and upon consideration of the 
facts recited above and the positions of the parties on remand, we conclude that, 
particularly because it waited until after the hearing on the merits to request dismissal 
on sum-certain grounds, the government has forfeited its right to challenge ECCI’s 
satisfaction of the sum-certain requirement.  See ECCI, 79 F.4th at 1379-80.  In so 
doing, we specifically reject the government’s attempt on remand to shoe-horn into the 
present discussion an exchange during the hearing in which the government did not 
present the sum-certain challenge that it presented only after the hearing.2  
Accordingly, the government’s September 3, 2020 partial motion to dismiss for lack of 
jurisdiction is denied.      
 
 Finally, we take this opportunity to dispose of two items upon which the parties 
agree.  The parties agree that ECCI is entitled to (1) $24,904 for work on a military 
 
1 Gov’t Oct. 27, 2023 filing at 2. 
2 Gov’t Oct. 27, 2023 filing at 3-4 ¶¶ 1-2. 

3 
 
working dog kennel, and (2) $29,680 for the relocation of spoils.3  We award ECCI 
those amounts—together $54,584—with interest pursuant to 41 U.S.C. § 7109, from 
May 2, 2014, the date that contracting officer received the certified claim in which 
those items are presented,4 to the date of payment.  We defer to a future opinion our 
consideration upon the merits of the items still before us in this appeal. 
 
 Dated:  January 2, 2024 
 
 
 
 
 
 
 
 
 
 
 
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 
 
 
 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. 59643, Appeal of ECC 
International Constructors, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  January 2, 2024 
 
 
 
 
 
 
3 App. br. at 89-91; gov’t br. at 119-20. 
4 R4, tab 75 at 1, 49, 54-55, 324; see gov’t br. at 1 ¶ 3. 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals