ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeal of - )  
 )  
Ecology Mir Group, LLC ) ASBCA No. 63768 
 )  
Under Contract No. W9126G-20-D-0027 
 T.O. W9126G-23-F-0161 
) 
) 
 
   
APPEARANCE FOR THE APPELLANT: Mr. Adham Yusupov 
  Chief Executive Officer 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
  Engineer Chief Trial Attorney 
R. Lauren Horner, Esq. 
Rachel Fayas, Esq. 
  Engineer Trial Attorneys 
  U.S. Army Engineer District, Ft. Worth 
  
 
  
  
 
OPINION BY ADMINISTRATIVE JUDGE EYESTER  
PURSUANT TO BOARD RULE 12.2 
 
The U.S. Army Corps of Engineers (Corps) issued a task order to Ecology Mir 
Group, LLC (EMG) for tree removal, pruning and roadside trimming at Lake O’ the 
Pines, Texas.  EMG claimed the Corps misclassified certain services which caused an 
increase in the cost of performance in the amount of $7,117.58, and that the Corps 
previously removed these services from a prior task order for these reasons.  EMG 
appeals the contracting officer’s final decision (COFD) denying the claim. 
 
EMG elected to pursue this appeal pursuant to the Board’s Rule 12.2, Small 
Claims (Expedited) procedure.  Accordingly, this decision shall have no precedential 
value, and in the absence of fraud shall be final and conclusive and may not be 
appealed or set aside. 41 U.S.C. § 7106(b)(4)-(5).  EMG also pursued this appeal 
pursuant to Board Rule 11, in which the decision rests upon written evidence without 
courtroom testimony.  Based on the following, we deny EMG’s appeal. 
 
FINDINGS OF FACT (FOF) 
 
1. On April 15, 2020, the Corps awarded fixed-priced indefinite delivery, 
indefinite quantity (IDIQ) Contract No. W9126G20D0027 to EMG (Joint Statement of 
Facts (JSF) ¶ 1; R4, tab 5 at 87, 89-91,101, 135).  The period of performance included 
a one-year base period and four one-year option periods (JSF ¶ 1; R4, tab 5 at 105). 
 

2 
2. The contract’s bid schedule included eight contract line item numbers 
(CLINs) for the base and option years with estimated quantities and fixed unit prices; 
the unit prices for each CLIN increased each option year (R4, tab 5 at 92-93).  
According to the contract, the Corps would pay the contractor monthly, at a per unit 
price “in accordance with the bid schedule line items” and the payment would be “full 
compensation” for all labor, tools, materials, transportation and incidentals to complete 
the work per the attached performance work statement (PWS) (id. at 105). 
 
3. CLINs 01AA through 01AE were for several types of tree removal.  As 
relevant here, CLIN 01AF was for tree pruning (branches up to 50’ above ground), 
01AG for tree pruning (branches over 50’ above ground), and 01AH for roadside 
trimming.  (R4, tab 5 at 92-93)  With respect to tree removal, the PWS stated the 
contractor shall cut trees to a stump height not exceeding 12 inches above the ground 
and remove them from the project (id. at 95).  With respect to tree pruning, the PWS 
stated that “[t]here may be one or many branches on each tree that require pruning.”  
On trees marked for pruning, the contractor was to remove “all hanging branches, 
either dead or alive.”  (Id. at 96)  Finally, with respect to roadside trimming, the PWS 
stated “[t]here are no size classes for trees and branches that shall be trimmed, and 
there may be few or many branches or trees within each trimming section” (id. at 97). 
 
4. The contract incorporated by reference Federal Acquisition Regulation 
(FAR) 52.212-4, CONTRACT TERMS AND CONDITIONS--COMMERCIAL 
ITEMS (OCT 2018) (R4, tab 5 at 125).  According to that clause, changes to the 
“contract may be made only by written agreement of the parties.”  FAR 52.212-4(c).  
The contract also included Defense Federal Acquisition Regulation Supplement 
(DFARS) 252.216-7006, ORDERING (SEP 2019), which provides that orders issued 
were subject to the terms and conditions of the contract (R4, tab 5 at 138).  The first 
task order issued pursuant to the contract included services for every CLIN 
(01AF-01AH) (JSF ¶ 7; R4, tab 34 at 289, 292). 
 
5. The agency issued contract Modification No. 01 to exercise option year 1, 
effective March 10, 2021 (JSF ¶ 9; R4, tab 6 at 139-40).  The modification included all 
CLINs and a statement explaining that only a warranted contracting officer had the 
authority to issue modifications or change the terms of the contract (R4, tab 6 at 140).  
The Corps included that statement in all subsequent contract modifications which 
exercised an option (see R4, tabs 7, 12).  Subsequently, the agency issued task orders 
in option year 1 which included services for every CLIN (01AF-01AH) (JSF ¶¶ 10-11; 
R4, tab 36 at 302, 309; tab 37 at 312, 315). 
 
6. On March 17, 2022, the Corps issued contract Modification No. 02, 
exercising option year 2, and again included all CLINs (JSF ¶ 12; R4, tab 7 at 156-57).  
Subsequently, on June 9, 2022, the Corps issued task order W9126G20D0027, with a 
period of performance of June 13-July 12, 2022.  The task order set forth various 

3 
quantities of tree removal and tree pruning for CLINs 2001AB-01AG; there were no 
quantities for CLIN 2001AH, roadside trimming.  (Id. ¶ 13; R4, tab 8 at 176)  On 
September 9, 2022, the Corps issued a bilateral modification to the task order 
amending the CLINs (id. ¶ 14; R4, tab 10 at 181-82).  Specifically, the modification 
deleted all quantities for CLINs 2001AF and 2001AG (tree pruning) but increased the 
quantities for all of the tree removal CLINs; there was still no quantity listed for CLIN 
2001AH, roadside trimming (compare R4, tab 8 at 176, with tab 10 at 182).  
According to the parties, “EMG’s subcontractor stated [that] due to a freeze the 
trimming and pruning would have taken these sub [CLINs] out of scope of the 
contract” and the Corps agreed and deleted them per the modification (JSF ¶ 14A-B). 
 
7. On February 17, 2023, EMG emailed the Corps to confirm, per the call that 
day, that for the next task order issued the Corps would be flexible with the period of 
performance if campers were in the way or the area was not fully blocked off.  EMG 
also expressed appreciation for “incorporation of the [economic price adjustment 
(EPA)] Clause” in the task order “to allow the 10% increase to the overall contract 
value for inflation faced towards fuel costs.”  (R4, tab 11)  EMG attached a notice of 
intent (NOI) and updated pricing spreadsheet and requested the Corps issue a 
modification incorporating the EPA clause (R4, tab 3 at 20-21).  The attached 
spreadsheet included a 10 percent increase for CLINs 01AA-01AE but inserted “NA” 
for CLINs 01AF-01AH (R4, tab 4 at 86). 
 
8. Subsequently, the Corps issued unilateral contract Modification No. 03, 
exercising option year 3, effective April 15, 2023, and again included all CLINs (JSF 
¶ 15; R4, tab 12 at 187-88).  As relevant here, we find that all of the modifications to 
the contract exercising option years included CLINs 01AF-AH.  In addition, 
Modification No. 03 increased the unit prices for CLINs 3001AA-3001AE by 10 
percent “in accordance with FAR 52.216-2” (R4, tab 12 at 188).  The modification did 
not increase the unit prices for CLINs 3001AF, 3001AG or 3001AH (compare R4, 
tab 5 at 93, with R4, tab 12 at 202). 
 
9. On April 19, 2023, the Corps issued task order No. W9126G23F0161, the 
task order central to the dispute here, in the amount of $20,031 with an effective date 
of May 1, 2023 (R4, tab 13 at 204-06).  The task order set forth various quantities of 
tree removal and tree pruning for CLINs 3001AA-3001AG, as well as quantities for 
CLIN 3001AH, roadside trimming (id. at 207).  The task order utilized the increased 
unit prices set forth in contract Modification No. 03, and in addition, increased the unit 
prices for CLINs 3001AF-3001AH by 10 percent (JSF ¶ 16A; R4, tab 13 at 207). 
 
10. The next day, EMG emailed the Corps stating the task order “includes 
priced out pruning line items.”  According to EMG, on February 17, 2023, it provided 
the Corps the pricing sheet for the service items they were proceeding with in this 
option year and “did not price out pruning services and roadside trimming as we 

4 
agreed that there would be no pruning involved.”  EMG further stated:  “The current 
task order . . . needs to be revised to remove pruning and roadside trimming line items 
3001AF, 3001AG, and 3001AH.”  (R4, tab 14 at 210) 
 
11. On April 20, 2023, the lead natural resource specialist at the Corps asked 
EMG to “provide any information about the agreement to not include the pruning and 
roadside trimming line items” because the specialist was unaware of this agreement 
when preparing the task order.  The Corps specialist “had planned on these contract 
items being included and increased by the EPA clause fuel price adjustment.”  (R4, 
tab 15)  In response, on April 24, 2023, EMG stated that the matter was discussed 
during the conference call held on February 17, 2023 and following the call, it sent an 
email which included a pricing table that did not list prices for pruning and roadside 
assistance.  EMG further stated this issue had been discussed since August 2022.  (R4, 
tab 16 at 214)  This email included the February 17, 2023 email showing two 
attachments (i.e., the NOI and pricing table) (id. at 215-16). 
 
12. On April 24, 2023, the Corps specialist emailed the contracting officer and 
others asking whether this matter was discussed during the February 17, 2023 call.  In 
response, the natural resources manager stated the parties discussed the polar vortex 
issue regarding the pruning and the EPA clause for fuel.  (R4, tab 18 at 219)  On 
April 24, 2023, the Corps specialist emailed EMG explaining that after checking with 
those in attendance at the February 17, 2023 meeting, there was no record that the 
Corps agreed to omit CLINs 3001AF, 3001AG and 3001AH from the contract.  The 
Corps acknowledged it de-scoped two CLINs from one task order due to a deep freeze 
storm in February 2021.  However, the Corps stated it issued both this task order and 
the contract modification exercising option year 3 with a fuel adjustment to the unit 
price of each CLIN and identified quantities for services in all CLINs for this task 
order.  The Corps asked if EMG could complete the task order as issued.  (R4, tab 17) 
 
13. EMG informed the Corps that its vendor could not perform the work in 
those CLINs and offered to find a different vendor and obtain quotations for the Corps 
(R4, tab 19).  On April 26, 2023, the contracting officer emailed and reminded EMG 
that the contract was fixed-priced with no provisions or mechanisms for adjusting 
pricing and it was EMG’s responsibility to control cost.  The contracting officer stated 
that the alternative approach to accomplish the services for those CLINs was 
unacceptable and if EMG did not perform, it was a breach of the task order and 
contract.  The contracting officer further stated that prior to exercising the contract 
option, he approved EMG’s request for consideration of all the effort affected by the 
current economic condition.  (R4, tab 20) 
 
14. EMG responded, explaining again that the February 17, 2023 call was 
“geared toward [EMG’s] concerns of future task orders” and it followed-up the call 
with an email and pricing which excluded the pricing for line items 3001AF, 3001AG 

5 
and 3001AH due to “misclassification of the service requested, liability risks due to 
campers parked under trees marked for removal, and excess delays faced for roadside 
trimming with spring/summer traffic build-up.”  EMG further explained that for the 
past trees marked for pruning, the Corps requested removal of 80 percent of the tree 
branches due to freezing temperatures of the winter seasons prior and the conditions of 
the trees, and therefore those trees should have been classified as tree removal, not tree 
pruning as more work needed to be done.  EMG stated its subcontractors and 
employees refused to prune and perform roadside trimming due to safety factors and 
the misclassification of the work as pruning and not removal.  EMG further explained 
that its quotation for tree pruning was removal of 1-2 branches, not 80 percent.  EMG 
offered to conduct site visits prior to accepting work under these line items to ensure it 
was within the budgeted cost.  (R4, tab 21 at 228) 
 
15. On August 24, 2023, EMG emailed the Corps, including the contracting 
officer, reiterating the prior events regarding CLINs 3001AF-3001AH.  According to 
EMG, after sending the February 17, 2023 email, the contracting officer requested a 
breakdown of unit costs to evaluate the elements for each unit price EMG proposed to 
increase.  EMG explained that on April 6, 2023, the contracting officer stated he could 
only apply the 10 percent EPA increase to the option year 3 line items and would 
review pricing again prior to exercising option year 4.  EMG noted it completed the 
work on the task order and was seeking compensation for the increased cost.  (R4, 
tab 26 at 268-69)  EMG attached an invoice showing the additional money requested 
for each of the three CLINs at issue, for a total of $7,117.58 (id. at 271). 
 
16. On August 24, 2023, the Corps emailed EMG and stated the task order 
was fixed-priced and included EMG’s requested increase for certain CLINs (R4, 
tab 27).  EMG responded again and stated it did not price out an increase for pruning 
and roadside trimming which the government had, in the past, agreed not to have EMG 
perform, and the rates for those services increased from its initial quotation in 2020 
(R4, tab 28).  On August 28, 2023, the Corps acknowledged that on a prior task order, 
EMG contested that the tree pruning following the polar vortex deep freeze resulted in 
different work conditions and increased work per tree to prune than the average 
conditions expected in the quotation.  The Corps stated that in that instance, it removed 
the quantities for pruning and increased the quantities for tree removals.  However, the 
Corps stated it never agreed to not request the pruning and roadside services as they 
are needed and considered “an important component” of the contract.  (R4, tab 29) 
 
17. EMG submitted its claim on September 18, 2023, iterating its prior 
arguments that EMG submitted pricing to the Corps showing increased costs for 
CLINs 01AA-01AE and no costs (or not applicable) for CLINs 01AF-01AH (tree 
pruning and roadside trimming).  According to EMG, the contracting officer sought a 
breakdown of the unit costs, which EMG provided and informed EMG he could only 
apply the 10 percent increase to option year 3 line items.  EMG agreed to this, but after 

6 
the task order was issued showing work for CLINs 01AF-01AH, EMG informed the 
Corps it did not price those line items.  (R4, tab 4 at 83)  EMG subsequently 
performed the work, but at an increased price and again sought the additional 
$7,117.58 (id. at 84). 
 
18. The contracting officer denied the claim on October 27, 2023, stating the 
Corps adjusted the prices for CLINs 3001AA-3001AE when it exercised option year 3, 
as requested by EMG and per FAR 52.216-2 (R4, tab 3 at 11).  The contracting officer 
further stated EMG did not request a price increase for CLINs 01AF-01AH but 
inserted “NA” for those items and the Corps did not find any record, and EMG did not 
provide evidence, of an agreement to omit CLINs 01AF-01AH from the contract.  
Further, the Corps never descoped those line items from the contract as they are 
needed services.  The contracting officer explained that when it issued the task order, it 
included a 10 percent increase for all line items, including CLINs 01AF-01AH.  (Id. 
at 12)  In addition, the contracting officer concluded that none of the work ordered was 
outside the scope of the contract.  For example, the PWS stated one or many branches 
may need to be pruned, EMG had performed tree pruning and roadside services 
successfully on three prior task orders, and the quantities ordered in this task order 
were comparable to those in the prior task orders.  (Id. at 11-12)  The contracting 
officer stated higher subcontractor costs are not a basis for an equitable adjustment on 
a fixed-priced contract and EMG provided no evidence to justify a 259 percent 
increase for CLIN 01AF, a 93 percent increase for CLIN 01AG, and a 78 percent 
increase for CLIN 01AH (id. at 12). 
 
19. EMG timely appealed on November 28, 2023. 
 
DECISION 
 
EMG contends it is entitled to the increased costs for the services performed 
pursuant to CLINs 3001AF-3001AH because they are out of scope, specifically that 
any tree pruning should be reclassified as tree removal due to freezing temperatures in 
prior winter seasons (R4, tab 4 at 83; tab 21 at 228).1  EMG also argues that its 
employees were unwilling to provide the work due to this misclassification and safety 
factors, that its quotation for pruning was for removal of only 1-2 branches, and that 
the Corps removed these CLINs from a prior task order due to the same concerns, 
which is why EMG did not submit a price adjustment for those CLINs to the 
contracting officer (R4, tab 21 at 228; Notice of Appeal at 1). 
 
In response, the Corps argues this was a fixed-priced contract which contained 
agreed-upon prices for a base and options years and EMG therefore bears the risk of 
 
1 EMG requested the Board use its REA as its initial brief (see Bd. corr. ltr. dtd. 
April 4, 2024). 

7 
any increased costs of performance (gov’t reply at 5-6).  The Corps also argues while 
the contracting officer increased pricing on several CLINs pursuant to the EPA clause, 
he never added the clause to the contract and EMG never provided consideration for 
inclusion of the clause.  Therefore, that clause is irrelevant to the appeal.  (Id. at 6-7)  
The Corps further states the government never agreed to remove these CLINs from the 
contract or task order, and the removal of the CLINs from a previous task order does 
not equate to removal or descoping of the contract (id. at 8). 
 
The contract here included fixed unit priced CLINs for the base and options, the 
price of which increased each option year (FOF ¶¶ 1-2).  EMG was to be paid per the 
stated unit price, and this payment was full compensation for the work performed (id.).  
Therefore, this contract was fixed-priced and per the FAR, the risk of increased 
performance costs, absent a contract provision providing otherwise, falls on the 
contractor.  See Amentum Servs., Inc., f/k/a AECOM Mgmt. Servs., Inc., ASBCA 
No. 62835 et al., 23-1 BCA ¶ 38,453 at 186,895; FAR 16.202-1 (“A firm-fixed-price 
contract provides for a price that is 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.”). 
The record shows that the only agreed upon increase in the fixed unit prices was 
the 10 percent price adjustment for CLINs 01AA-01AE.  First, EMG’s February 17, 
2023 email discusses only the EPA clause and 10 percent price adjustment for fuel 
costs (see FOF ¶ 7).  Second, EMG’s pricing spreadsheet stated “NA” for a price 
increase for CLINS 01AF-01AH (id.).  Accordingly, the contracting officer only 
increased the pricing of CLINs 3001AA-3001AF by 10 percent “in accordance with 
FAR 52.216-2” when exercising option year 3 (id. ¶ 8).  The purpose of an economic 
price adjustment in a fixed-priced contract is “to protect the contractor and the 
Government against significant fluctuations in labor or material costs or to provide for 
contract price adjustments in the event of changes in the contractor’s established 
prices.”  FAR 16.203-3.  EMG’s contention that the Corps misclassified the work does 
not implicate adjustments pursuant to this clause.  In addition, the clause limits the 
aggregate increases in any unit price to 10 percent of the original unit price.  Here, the 
contracting officer made clear that price increases were limited to 10 percent as agreed 
by the parties for rising fuel costs (see FOF ¶ 7).  The contracting officer later 
increased the remaining CLINs by 10 percent in the task order at issue here (id. ¶ 9). 
 
EMG contends that it did not seek a 10 percent price adjustment for CLINs 
3001AF-01AH because it was agreed EMG would not perform the work as they were 
out of scope of the contract.  First, there is nothing in the record showing the Corps 
agreed to remove this work or these CLINs from the contract or task order.  In fact, 
EMG does not contend, nor could it, that the contracting officer modified the contract 
to remove these CLINs.  As noted, the contract incorporated by reference 

8 
FAR 52.212-4, CONTRACT TERMS AND CONDITIONS--COMMERCIAL ITEMS 
(OCT 2018) which requires changes to the “be made only by written agreement of the 
parties” (FOF ¶ 4).  Further, all contract modifications reminded EMG that only the 
contracting officer could make changes to the contract (id. ¶ 5).  There is no written 
agreement here showing the contracting officer removed these services from the 
contract (see id. ¶¶ 5-6, 8).  The Corps explained it still needed the services, as 
evidenced by the modifications including them and the subsequent task orders 
requiring them (id. ¶¶ 9, 11-12, 16).  As these CLINs were not removed from the 
contract, the Corps could still issue task orders seeking these services (see id. ¶ 4). 
Second, the record does not support EMG’s argument that the work was out of 
scope.  EMG argues the trees marked for pruning should really have been marked for 
removal due to freezing temperatures in the prior years, and its quotation for tree 
pruning was removal of 1-2 branches, not 80 percent of the tree branches as it 
contends the Corps required (FOF ¶ 14).  In interpreting a contract, we begin with the 
plain language.  See, e.g., Banknote Corp. of America, Inc. v. United States, 365 F.3d 
1345, 1353 (Fed. Cir. 2004). 
 
Here, the PWS states that for tree pruning, there could be “one or many branches 
on each tree” requiring pruning, and further, that EMG was to remove “all hanging 
branches, either dead or alive” (FOF ¶ 3).  Likewise, for roadside trimming the PWS 
stated there were no size classes for trees and branches and there “may be few or many 
branches or trees within each trimming section” (id.).  In comparison, for tree removal 
the PWS required EMG cut and remove the trees to a maximum stump height of 12 
inches above the ground (id.).  Contrary to EMG’s contentions, the plain language of 
the PWS does not limit pruning or roadside trimming to only 1-2 branches and explains 
that many branches may be, and all hanging must be, pruned.2 
 
We note that while the Corps did remove the pruning services from one task 
order and increased the services for tree removal due to a deep freeze or polar vortex 
(FOF ¶ 6), this does not mean the Corps removed them from the contract or even 
intended to remove them from the contract or future task orders.  In other words, there 
was no prior course of dealing establishing that EMG would never have to perform 
those services after removal from one task order. 
 
To establish a prior course of dealing, and “extinguish an otherwise explicit 
contract requirement” there must be “actual knowledge by both parties of consistent 
conduct by one party in its contractual dealings with the other over an extended period 
of time regarding a particular contract provision upon which the other is reasonably 
 
2 To the extent EMG is arguing there was a differing site condition pursuant to FAR 
52.236-2, we note that FAR clause was not included in this contract (see R4, 
tab 5) and EMG’s claim contains only cursory allegations regarding that matter. 

9 
entitled to rely.”  Raytheon Co., ASBCA Nos. 60448, 60785, 20-1 BCA ¶ 37637 
at 182,733-34 (quoting Comptech Corp., ASBCA No. 55526, 08-2 BCA ¶ 33,982 
at 168,085-86).  Further, the prior course of dealing must represent a “reflection of the 
joint or common understanding” of the parties.  Id. at 182,734 (quoting T&M Distribs., 
ASBCA No. 51405, 00-1 BCA ¶ 30,677 at 151,509 (further citations omitted)).  To 
show waiver of a contract requirement through a prior course of dealing, a contractor 
must show that the current contract and prior course of dealing involved the same 
contracting agency, the same contractor, and essentially the same contract provision.  
Id. (citations omitted).  While here we have the same agency, contractor and contract, 
there was only one instance regarding removal of these services from a task order 
which did not happen over an extended period of time and there is no joint or common 
understanding of the parties on this matter.  See e.g., Pyrotechnic Specialties, Inc, 
ASBCA No. 57890 et al., 17-1 BCA ¶ 36,696 at 178,706 (two varying instances of 
rescreening were insufficient to establish consistent conduct by the government in its 
contract dealings with the contractor over an extended period of time).  Thus, there is 
no prior course of dealing evidencing the agency waived performance under these 
CLINs. 
 
We have considered all arguments and conclude EMG is not entitled to 
compensation for the costs claimed. 
 
CONCLUSION 
 
For the reasons stated above, the appeal is denied. 
 
Dated:  April 26, 2024 
 
 
 
LAURA EYESTER 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
  

10 
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. 63768, Appeal of Ecology 
Mir Group, LLC, rendered in conformance with the Board’s Charter. 
 
Date:  April 26, 2024 
  
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals