DENIED: April 22, 2020
CBCA 5683
PERNIX SERKA JOINT VENTURE,
Appellant,
v.
DEPARTMENT OF STATE,
Respondent.
J. Randolph MacPherson of Halloran & Sage LLP, Washington, DC; and Douglas L.
Patin of Bradley Arant Boult Cummings, Washington, DC, counsel for Appellant.
Erin M. Kriynovich, Office of the Legal Adviser, Buildings and Acquisitions,
Department of State, Rosslyn, VA, counsel for Respondent.
Before Board Judges SOMERS (Chair), VERGILIO, and SHERIDAN.
SOMERS, Board Judge.
Appellant, Pernix Serka Joint Venture (PSJV), faced with concerns about performing
a contract in Freetown, Sierra Leone, during an Ebola virus disease (Ebola) outbreak, sought
guidance from the Department of State (DOS) contracting officer as to how to respond. DOS
provided no guidance, stating that PSJV would need to make its own decisions about the
process for completing contract performance under such conditions. PSJV temporarily
demobilized, later returning to the site having contracted for additional medical services for
its employees. After contract completion, PSJV requested an equitable adjustment for costs
incurred. DOS moves for summary judgment on the grounds that the risk of performance
in this firm, fixed-price contract remained with PSJV PSJV has identified no genuine issues

CBCA 5683 2
of material fact, and DOS is entitled to prevail as a matter of law. After considering the
motion, opposition, and reply, we grant DOS’s motion and deny the appeal.
Statement of Facts
In September 2013, DOS awarded a firm, fixed-price contract in the amount of
$10,864,047 to PSJV. The contract required PSJV to construct a rainwater capture and
storage system in Freetown, Sierra Leone. The initial price included all labor, materials,
equipment, and services necessary to complete the project. In addition to the fixed-price
sum, the contract limited additional reimbursement for value added taxes, not to exceed
$1,626,195. The contract included a clause entitled “Excusable Delays,” which stated:
F.8.1 The Contractor will be allowed time, not money, for excusable delays
as defined in FAR 52.249-10, Default (see Section/Paragraph I.153).
Examples of such cases include (1) acts of God or of the public enemy; (2) acts
of the United States Government in either its sovereign or contractual capacity;
(3) acts of the government of the host country in its sovereign capacity; (4) acts
of another contractor in the performance of a contract with the Government;
(5) fires; (6) floods; (7) epidemics; (8) quarantine restrictions; (9) strikes; (10)
freight embargoes; and (11) unusually severe weather.
F.8.2 In each instance, the failure to perform must be beyond the contract and
without the fault or negligence of the Contractor, and the failure to perform
furthermore (1) must be one that the Contractor could not have reasonably
anticipated and taken adequate measures to protect against, (2) cannot be
overcome by reasonable efforts to reschedule the work, and (3) directly and
materially affects the date of final completion of the project.
DOS issued a notice to proceed to PSJV on December 17, 2013. The contract
required PSJV to complete the project within 335 calendar days, with a completion date of
November 17, 2014. PSJV began performance, completing sixty-five percent of the project
by August 7, 2014.
An outbreak of the Ebola virus began in the Republic of Guinea in March 2014.
Ebola spread to Freetown, Sierra Leone, by July 2014. PSJV became concerned about the
potential impact of the spread of the virus and the ability to support contractor personnel
should they need to be evacuated. In an email to the contracting officer on July 31, 2014,
PSJV sought “instructions on the way forward.” On August 6, 2014, PSJV told the
contracting officer that “we do not want to act unilaterally and need to have a discussion with

CBCA 5683 3
you, get directions, or at least a consensus of the right action of the way forward.” The
contracting officer responded via email on August 6:
I just got off the phone with Najib Mahmood [the Africa Branch Chief for the
Bureau of Overseas Operations (OBO), a branch within DOS] and understand
that the Post has NOT issued an ordered departure for the Embassy at the
present time. Therefore, I can’t at this time tell you to leave the Post due to
current conditions. I do understand that the situation there is go [sic] downhill
fast and flights in and out of there have [decr]eased or stopped all together. It
is up to you to make a decision as to if your people should stay or leave at this
time. Until we get further word on this issue we can’t tell you to leave the Post
but the decision for your people to stay or leave for life safety reasons rests
solely on your shoulders. Your peoples [sic] safety should be of the most
utmost [sic] concern! Please let me know what action you decide to take in
reference to this situation.
At least two members at PSJV then realized that DOS would not be providing any direction
or guidance as to whether PSJV should leave the jobsite. A member of its executive
committee testified in a deposition that he was the one who made the decision that PSJV
should demobilize. On August 7, 2014, PSJV sent a notice of delay related to the crisis to
DOS.
On August 8, 2014, the World Health Organization (WHO) declared the outbreak an
“international public health emergency.” Airlines suspended flights. Some contractor and
subcontractor personnel asked to leave Sierra Leone because of the escalated Ebola threats
and the increased risk of not being able to leave Sierra Leone should conditions worsen. The
U.S. Embassy in Freetown ordered eligible family members of embassy personnel to depart
from the post. However, the U.S. Embassy and staff, as well as OBO, continued to operate
throughout the outbreak.
On August 8, PSJV directed that the project be shut down and that all personnel in the
country be evacuated. That same day, PSJV notified DOS of its decision to temporarily shut
down the project work site as a temporary measure:
We have been planning to keep a small crew on the project site in Freetown
to continue work as best as possible, mainly Tank #2 installation. However,
with the further downside developments of today, the local Government
declaring a curfew, and the WHO declaring an “international public health
emergency” our plans have changed. All of our personnel and our
subcontractor personnel have requested to leave Freetown in light of the

CBCA 5683 4
escalated virus threats and increased risk of not being able to depart Sierra
Leone, if and when the conditions worsen. They all requested to be removed
outside Sierra Leone immediately, to their points of origin. We could not
leave a small work crew without necessary safety, security, quality and
management attendance and supervision, so we had to arrange for a temporary
site shut down, and the evaluation of all our expat and TCN personnel out of
Sierra Leone. . . . This is only a temporary site shut down; we intend to re-
mobilize our personnel once the EBOLA epidemic is under better control, and
the life-threatening risks to our employees are reduced.
In response, DOS stated:
We are aware and acknowledge your concerns in your letter dated
08AUG2014 about the impact the Ebola Outbreak has towards continuing
work on this project. Since you are taking this action unilaterally based on
circumstances beyond the control of either contracting party, we perceive no
basis upon which you could properly claim an equitable adjustment from the
Government with respect to additional costs you may incur in connection with
your decision to curtail work on this project.
DOS’s contracting officer instructed PSJV “to keep us advised as to your plans and timeline
to resume work.” Ultimately, based upon the situation and its concerns for the safety of its
employees, PSJV decided to secure all material and equipment, in part on-site and at an off-
site location in Sierra Leone, and close the jobsite.
On August 15, OBO’s project director emailed PSJV:
A week before you finalized your planned departure, I have indicated to you
that OBO site office will be operating on business as usual until such time that
the embassy issued an ordered evacuation for American workers. When you
told me three days prior to your departure that you decided to turn off the site
power I do not have any choice but to move my operation from the site to the
embassy. PSJV’s decision, planning and execution of shutting down the site
did not include OBO staff and offices, we were informed accordingly as it
evolved.
It is up to PSJV whether to maintain power and provide personnel at the site
during the duration of the shutdown. If site power is restored OBO office will
continue to operate at the site. It will be business as usual with the ACF
activated and normal security checks of personnel including security will be

CBCA 5683 5
allowed access to the site on a regular basis provided names are submitted in
advance as what we have done in the past.
PSJV responded, stating that it would keep the power on at the site. On August 16, PSJV’s
construction manager gave respondent keys to its on-site office and to its storage containers.
PSJV arranged for temporary power and lighting at the construction site and hired local
security to maintain the generator. OBO cancelled its plans to move and remained on the
construction site. PSJV informed DOS that it intended to re-mobilize its personnel once the
Ebola outbreak was under control and the risk posed to employees was reduced. Later,
during his deposition, a PSJV representative explained PSJV’s concerns:
We felt we were cornered to make a unilateral decision to save our people’s
lives essentially, and it felt like it was a chicken game with the Government.
They waited us out until we had to leave, and then immediately you get a
response that says this is unilateral.
PSJV and DOS representatives met on multiple occasions from August 2014 through
January 2015, to discuss the ongoing crisis. PSJV continued to request guidance from DOS
and expressed frustration that DOS would not provide any. As reflected in the minutes of
a meeting held on September 30, 2014, DOS
clarified that DOS cannot agree upon or advise of any metrics, such as CDC
[Centers for Disease Control and Prevention] travel warnings, infected cases
declining, or airline carriers resuming flights, since these are neither known in
terms of when they may occur nor under any direct control of DOS. . . . [and]
confirmed that the measurement of any metrics and the decisions for any
action on the way forward, which is related to PSJV employee[s] and their life
safety for return to Freetown, will solely rest on PSJV determination and
consequent decisions. As such, DOS will not provide any instructions or
directions in this regard.
PSJV alleges that in October the contracting officer “verbally agreed that PSJV could
submit a ‘rough order of magnitude’ [ROM] cost proposal for the additional life safety
measures needed to complete the project.” However, after receiving PSJV’s cost proposal
on November 6, 2014, DOS rejected it, stating, in part:
PSJV may be entitled to a non-compensable time extension under the
excusable delay clause if it can prove that performance of the contract was
impossible . . . . If the [U.S. Government] agrees to the existence of excusable
delay conditions, PSJV would be entitled to a time extension only, and not an

CBCA 5683 6
equitable adjustment for delay costs or the other types of expenses included in
PSJV’s [cost proposal].
Later, on November 24, 2014, following a call with DOS representatives, including the
contracting officer, PSJV sent an internal email to other PSJV personnel, stating:
It is now obvious [DOS] will neither provide directions, nor approve or pay
extra money over this Ebola thing, and we will have to take the risks and bite
the bullet to go back and get the job done, then seek compensation.
In January 2015, PSJV visited the project site to examine the availability and
reliability of local medical facilities. After determining that the “resumption of construction
works on the Project site should be planned and executed as soon as possible,” PSJV decided
“to contract . . . . for basic medical facilities and services on the project site” and that
remobilizing the crews should not have “a condition precedent of OBO approving our
proposal.” In a letter to the contracting officer dated January 2, 2015, PSJV raised the issue
of OBO’s failure to provide directions to address “cardinal change conditions” arising from
the outbreak.
PSJV continued to press for compensation for the costs incurred during this time
period. After a meeting with DOS personnel, although PSJV was under the impression that
it would be compensated, no one from DOS explicitly made any promises.
In mid-March 2015, PSJV returned to the project site. When PSJV remobilized, it
expanded the medical facility by converting a changing room to a medical facility and
providing a licensed paramedic. On March 31, 2015, PSJV updated DOS on the status of
remobilization activities and discussed a draft ROM estimate that it had prepared for the cost
of the added medical, health, and safety provisions, as well as other costs arising from the
Ebola outbreak.
PSJV submitted a revised baseline project execution schedule in April 2015, which
shifted the project’s substantial completion date to September 30, 2015. DOS accepted the
revised schedule.
On July 6, 2015, PSJV submitted a request for equitable adjustment (REA), identified
as REA-03, seeking $907,110 for the “cost impacts associated with the additional Life Safety
and Health provisions . . . undertaken to enable the return of our expat and TCN employees
and workforce to the site, and complete the construction works within the adverse conditions
of the Ebola Virus outbreak in Sierra Leone.” Later, on August 4, 2015, PSJV submitted to
DOS/OBO another REA, identified as REA-04, seeking $844,402 “for time and cost impacts

CBCA 5683 7
associated with the additional works and efforts PSJV had undertaken in response to the
project execution changed conditions resulting from the Ebola Virus Outbreak in Sierra
Leone.”
The contracting officer denied REA-03 on August 5, 2015, stating that “there is no
contractual basis for an adjustment to the contract price.” The contracting officer did not
take action on REA-04.
On September 30, 2015, DOS issued a contract modification extending the project’s
completion date to October 9, 2015. The time extension covered the 195 additional calendar
days requested by PSJV for the Ebola outbreak. Over the next few months, DOS and PSJV
discussed the REAs, but reached no mutually agreeable solution. On January 17, 2017, PSJV
submitted a certified claim for $1,255,759.88. The claim sought “(1) $608,891 in additional
life safety and health costs incurred due to differing site conditions, disruption of work and
the need to maintain a safe work site for the Pernix Serka Joint Ventures work and
Government personnel, and (2) $646,868.88 in additional costs incurred resulting from that
disruption of work, and the need to demobilize and remobilize at the work site.” The notice
of appeal also stated that the claim “involves one or more breaches of the Department of
State of the implied covenant of good faith and fair dealing.”
DOS argues in its motion for summary judgment that, because this involves a firm,
fixed-price contract, PSJV assumed the risks of any unexpected costs not attributable to the
Government. PSJV contends that genuine issues of material fact preclude summary
judgment on its claims, described in its brief as cardinal change, constructive change, and
breach of implied duty to cooperate.
Discussion
I. Standard for Summary Judgment
The standards of review and obligations of each party to prevail on a motion for
summary judgment are well established, and are followed here. See CSI Aviation, Inc. v.
General Services Administration , CBCA 6543 (Apr. 9, 2020); Walker Development &
Trading Group Inc. v. Department of Veterans Affairs , CBCA 5907, 19-1 BCA ¶ 37,376,
motion for reconsideration denied, 19-1 BCA ¶ 37,465.
After examining all of the pleadings, the motions, and the record, we conclude that
the material facts are undisputed. The issue presented is a legal issue, appropriate for
resolution through summary judgment.

CBCA 5683 8
II. A Firm, Fixed-Price Contract Places the Risk on Contractor
It is “well-established that ‘a contractor with a fixed price contract assumes the risk
of unexpected costs not attributable to the Government.’”Matrix Business Solutions, Inc.
v. Department of Homeland Security, CBCA 3438, 15-1 BCA ¶ 35,844 (2014) (quotingIAP
World Services, Inc. v. Department of the Treasury, CBCA 2633, 12-2 BCA ¶ 35,119);see
also Fluor Intercontinental, Inc. v. Department of State , CBCA 1559, 13 BCA ¶ 35,334.
“[A]bsent a special adjustment clause, a contractor with a fixed price contract assumes the
risk of increased costs not attributable to the Government.”Southwestern Security Services,
Inc. v. Department of Homeland Security, CBCA 1264, 09-1 BCA ¶ 34,139.
PSJV’s firm, fixed-price contract obligated PSJV to perform and receive only the
fixed price. The contract, in clause F.8.1 and the referenced FAR clause 52.249-10,
explicitly addresses how acts of God, epidemics, and quarantine restrictions are to be treated.
A contractor is entitled to additional time but not additional costs. Appellant’s attempts to
shift the risks clearly articulated by the contact are unavailing. See, e.g. , Fluor
Intercontinental, Inc.
Particularly given the Excusable Delays clause, PSJV has not identified any clause in
the contract that served to shift the risk to the Government for any costs incurred due to an
unforeseen epidemic. Nor does the contract require the Government to provide PSJV with
direction on how to respond to the Ebola outbreak. Thus, under a firm, fixed-price contract,
PSJV must bear the additional costs of contract performance, even if PSJV did not
contemplate those measures at the time it submitted its proposal or at contract award.
III. PSJV Attempts to Shift the Risk to the Government
PSJV pursues several legal theories that it maintains shift the risks of increased costs
of performance from itself to the Government. It claims that PSJV “was forced to perform
in cardinal change conditions,” or “was constructively ordered to provide medical and life
safety measures outside the scope of the contract,” or “incurred costs due to the breach of the
government’s implied duty to cooperate.” Finally, PSJV contends that a “constructive
suspension of work may occur from causes not the fault of the contractor or government.”
These legal theories do not entitle it to relief.
A. Cardinal Change
A cardinal change is a breach that occurs if the Government effects a change in the
contractor’s work “so drastic that it effectively requires the contractor to perform duties
materially different from” those found in the original contract.Krygoski Construction Co.

CBCA 5683 9
v. United States, 94 F.3d 1537, 1543 (Fed. Cir. 1996). In typical cases, a cardinal change
arises from a unilateral modification that then results in a large increase in the contract
burden.
PSJV asserts a cardinal change occurred here when:
OBO expected PSJV to work in . . . Ebola crisis conditions without any
guidance or direction from OBO, or a suspension of work, and that OBO
forced PSJV to return to the project site adding life safety measures not in
PSJV’s approved work plan.
PSJV points to DOS’s internal discussions about whether DOS should issue a suspension of
work. PSJV further claims that, when it entered into the contract, it did not know “the
agency would pressure the contractor to remobilize and assume the risk and cost of providing
independent medical treatment to its staff and subcontractor personnel because no safe local
medical treatment could be relied upon in a city and country trying to recover from an Ebola
epidemic that killed hundreds of people.”
This argument fails to establish a cardinal change to the contract. Despite the
difficulties encountered during the Ebola outbreak, the Government never changed the
description of work it expected from the contractor. Throughout communications with PSJV,
the Government repeatedly stated that it would not give directions to the contractor on how
it should respond to the ongoing outbreak, instead leaving the decisions solely in the hands
of the contractor. Any changes in conditions surrounding performance of the contract arose
from the Ebola outbreak and the host country’s reaction to the outbreak. This situation
forced PSJV to reevaluate how it wished to proceed with the work outlined in the contract.
Throughout the situation, DOS informed PSJV, on multiple occasions, that it would not order
PSJV to evacuate the site and that PSJV must make its own business choices as to whether
it needed to demobilize from the site.
The two cases that PSJV cites in support of its claim that working under Ebola
conditions constituted a cardinal change are inapposite. InFreund v. United States, 260 U.S.
60 (1922), the Government awarded a contract for delivery of mail “on a particular route
described by a schedule, for a certain annual gross sum, which being divided by the miles to
be covered made a certain rate per mile.”Id. at 61. When the performance period began, the
post office that should have been the starting point for the route became unavailable,
requiring the contractor to use a post office thirteen blocks away. Id. Despite the longer
route, the Government refused to increase the contractor’s per-mile payment.Id. The Court
found the Government bore responsibility for changing the route, entitling the contractor to
compensation.

CBCA 5683 10
In Aragona Construction Co. v. United States, 165 Ct. Cl. 382 (1964), a contractor
constructing a Veterans Administration hospital during World War II alleged a cardinal
change because the Government required it to use different building materials than it initially
planned. The Government restricted the use of the planned materials in order to preserve the
materials for production of armaments. The Court of Claims held:
In deciding whether a single change or a series of changes is a cardinal change
and a breach of the contract, we must look to the work done in compliance
with the change and ascertain whether it was essentially the same work as the
parties bargained for when the contract was awarded. Plaintiff has no right to
complain if the project it ultimately constructed was essentially the same as the
one it contracted to construct.
Id. at 390-91. The court concluded that “[a]ll of the changes that plaintiff was asked to make
on this contract were interstitial in nature” and “did not materially alter the nature of the
bargain into which plaintiff had entered or cause it to perform a different contract.”Id. at
391. Here, the work required of PSJV was detailed in the contract. The addition of life
safety measures after remobilization did not alter the nature of the thing it had contracted for;
the contractor remained obligated to perform at the fixed price.
B. Constructive Change
“A constructive change occurs where a contractor performs work beyond the contract
requirements without a formal order, either by an informal order or due to the fault of the
Government.”International Data Products Corp. v. United States , 492 F.3d 1317, 1325
(Fed. Cir. 2007). To recover on a constructive change claim, a contractor must show that (1)
it performed work beyond the contract requirements and (2) the Government
ordered–expressly or implicitly– the contractor to perform the additional work.Bell/Heery
v. United States, 106 Fed. Cl. 300, 313 (2012), aff’d, 739 F.3d 1324 (Fed. Cir. 2014); IAP
World Services, Inc. A contractor cannot invoke a claim for constructive change against the
Government unless the Government “effect[s] an alteration in the work to be performed.”
Bell/Heery, 739 F.3d at 1335.
PSJV argues that both the demobilization and remobilization of its personnel and the
additional site safety measures put in place due to the Ebola outbreak should be considered
constructive changes made by the Government, thus entitling PSJV to an equitable
adjustment for the increased costs. However, in both areas, PSJV’s arguments fall short in
proving that the Government ordered it to take an action in response to the Ebola outbreak
or that the Government’s inaction rose to the level of a constructive change.

CBCA 5683 11
PSJV acknowledges that DOS did not give it directions or orders to evacuate the
project site. In effect, while PSJV concedes that the Government had no contractual
obligation to provide direction, it continues to assert that the Government should have done
so nonetheless. Simply put, PSJV fails to demonstrate a constructive change because no
change to the contract occurred. PSJV remained obligated to perform throughout the
performance period, and the Excusable Delay clause provided for additional time, but not
additional money.
C. Constructive Suspension of Work
PSJV raises a constructive suspension of work claim in its opposition brief. As DOS
notes, PSJV’s new claim does not arise from the same set of operative facts as the legal
theories raised in its certified claim, raising the question of whether we possess jurisdiction
to entertain this claim. See VSE Corp. v. Department of Justice , CBCA 5116, 18-1 BCA
¶ 36,928 (2017). This is not a timely claim for this proceeding and is not addressed.
Decision
We grant DOS’s motion for summary judgment. The appeal isDENIED.
Jeri Kaylene Somers
JERI KAYLENE SOMERS
Board Judge
We concur:
Joseph A. Vergilio Patricia J. Sheridan
JOSEPH A. VERGILIO PATRICIA J. SHERIDAN
Board Judge Board Judge