ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of - )

)

ECC International, LLC ) ASBCA Nos. 60167, 60283

)

Under Contract No. W912DQ-11-C-4009 )

APPEARANCES FOR THE APPELLANT: R. Dale Holmes, Esq.

Amy M. Kirby, Esq. 

Michael A. Richard, 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 

Samuel J. Harrison, Esq. 

Michael E. Taccino, Esq.

Matthew Tilghman, Esq. 

 Engineer Trial Attorneys 

 U.S. Army Engineer District, Middle East 

 Winchester, VA 

Kathryn G. Morris, Esq. 

 Engineer Trial Attorney 

 U.S. Army Engineer District, Nashville

OPINION BY ADMINISTRATIVE JUDGE EYESTER 

ON THE GOVERNMENT’S MOTION FOR RECONSIDERATION 

The U.S. Army Corps of Engineers (USACE or government) moves for 

reconsideration of the Board’s February 24, 2022 post-hearing decision in ASBCA 

Nos. 60167 and 60283 concerning the government’s affirmative defense of waiver and 

ECC International, LLC’s (ECCI or appellant) Defense Base Act (DBA) premium 

claim. For the following reasons, we deny the request in part and remand it in part to 

the parties to decide quantum regarding the DBA premiums owed. 
2 

DECISION 

Familiarity with the decision of ECC Intern’l, LLC, ASBCA Nos. 58993, 

60167, 60283, 22-1 BCA ¶ 38,073, is presumed.1 However, we provide an 

abbreviated version of the facts relevant to the government’s motion. 

USACE awarded ECCI a contract to construct a Military Police School and a 

Signal School at Camp Shaheen, Afghanistan. ECC Intern’l, LLC, 22-1 BCA ¶ 38,073 

at 184,868 (finding 1). Ultimately, ECCI filed a certified delay claim on the contract 

at issue here, along with several other claims on various contracts with performance in 

Afghanistan. Id. at 184,890. The parties decided to hold a settlement negotiation

(referred to as an Executive Session) on those claims and entered into an agreement, 

dated January 15, 2015, outlining the terms of the negotiations. Id. This Executive 

Session agreement stated in pertinent part: 

The parties agree that only those appeals, claims and 

[requests for equitable adjustments (REAs)] listed in 

Attachment A are to be the subject of the Executive 

Session. Both parties understand that ECCI has ongoing 

projects in Afghanistan which may be subject to later 

claims. These claims are not included in the current 

Executive Session. Any further claims, REAs, and appeals 

to the Board or to the Court of Federal Claims arising from 

any of ECCI’s contracts with USACE, for projects 

performed in Afghanistan, under which performance has 

been completed as of the date of this agreement, must be 

submitted or filed with specific notice given to the Army 

Corps of Engineers, Middle East District Office of Counsel 

on or before May 15, 2015, provided that the (substantive, 

as opposed to procedural) transactions or occurrences 

underlying such claims, REAs, or appeals have occurred 

before that date. Those REAs, claims or appeals will be 

added to the Executive Session by mutual agreement of the 

parties, if practicable. If USACE does not agree to the 

addition of any REA’s, claims or appeals identified prior to 

May 15, 2015, but not currently set forth in Exhibit A, 

ECCI reserves the right to prosecute such claims outside 

the confines of the Executive Session as it sees fit. If any 

REAs, claims, or appeals (on completed Afghanistan 

1

 The government only moves for reconsideration of the decision as it relates to 

ASBCA Nos. 60167 and 60283. Judge O’Sullivan, who authored the decision, 

has since retired. 
3 

Projects) are not filed or submitted and brought to the 

attention of USACE prior to May 15, 2015, they shall be 

forever waived. 

Id. (Quoting R4, tab S-74 at 1, n.3) The Executive Session began on June 9, 2015 and 

the parties ultimately entered into a settlement agreement effective September 21, 

2016. Id. at 184,882 (finding 70). 

. 

ECCI filed additional claims. Its claims with the Board in the appeals at issue 

here sought compensation for the costs of mitigating collapsible soils at the project 

site; damages for an unreasonably imposed and enforced period of performance as 

identified by a biddability, constructability, operability, and environmental (BCOE) 

review; and reimbursement for DBA insurance premiums. ECC Intern’l, LLC, 22-1 

BCA ¶ 38,073 at 184,867. With respect to what is referred to as the BCOE claim, the 

government asserted the following affirmative defenses: (1) ECCI waived its BCOE 

claim when it failed to submit the claim by May 15, in accordance with the Executive 

Session agreement; and (2) the BCOE claim was part of the September 2016 

settlement agreement and therefore settled and released. Id. at 184,890. As relevant 

here, the Board ultimately concluded it did not have jurisdiction over the government’s 

affirmative defense of waiver and found ECC entitled to damages on part of the BCOE 

claim. Id. at 184,890-97. The Board also found ECC entitled to reimbursement for 

the DBA insurance premiums. Id. at 184,899. 

Standard of Review 

In reviewing a motion for reconsideration, the Board will look to whether the 

movant has presented newly discovered evidence, mistakes in findings of fact, errors 

of law, or failure of the Board to consider an appropriate matter. See Kellogg Brown 

& Root Servs., Inc., ASBCA Nos. 57530, 58161, 16-1 BCA ¶ 36,554 at 178,042;

Relyant, LLC, ASBCA No. 59809, 18-1 BCA ¶ 37,146 at 180,841. A party moving 

for reconsideration “must show a compelling reason” why the Board should alter its 

decision. Precision Standard, Inc., ASBCA No. 59116, 15-1 BCA ¶ 36,155 

at 176,445. 

In addition, a motion for reconsideration is not the place to present arguments 

previously made and rejected, or to advance arguments that should have been 

presented in an earlier proceeding. Assist Consultants Inc., ASBCA Nos. 61525, 

62090, 21-1 BCA ¶ 37,946 at 184,297; Precision Standard, Inc., supra. Specifically, a 

motion for reconsideration is not the time “for bolstering contentions that the Board 

has already rejected.” Raytheon Co. and Raytheon Missile Sys., ASBCA Nos. 59435 

et al., 21-1 BCA ¶ 37,860 at 183,844. 
4 

BCOE Claim and the Waiver Defense, ASBCA No. 60167 

During the hearing, the Board stated: “[I] think we may have some 

jurisdictional problems with the waiver defense because it’s based on an express 

provision of an agreement which is a standalone agreement, it’s not related to the 

contract, the procurement contract that’s at issue here.” The Board further stated “the 

waiver defense essentially asks the [B]oard to enforce a provision of the standalone 

agreement between the parties that led up to the settlement proceeding.” (Tr. 2/8) The 

Board then permitted the parties to elicit some testimony on the issue in case the 

waiver defense was a viable defense for the government (tr. 2/9). 

In its decision, the Board explained that in an effort to refute the Board’s 

concerns that the Executive Session agreement was not within the purview of the 

Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-09, the government’s post-hearing 

briefs cited cases discussing concluded settlement agreements or binding alternative 

dispute resolution proceedings but not private standalone agreements to discuss a 

settlement. ECC Intern’l, LLC, 22-1 BCA ¶ 38,073 at 184,890. The Board therefore 

concluded it did not have jurisdiction over the affirmative defense of waiver based on 

a private agreement to negotiate a settlement agreement. Id. 

In its motion for reconsideration, USACE contends the Board’s conclusion was an 

error of law and will have a chilling effect on the willingness of parties to engage in 

settlement negotiations (gov’t mot. at 1). Specifically, the government argues that “CDA 

jurisdiction need not be established for the Board to consider and uphold a common law 

affirmative defense such as the express waiver defense” presented here. The government 

contends that while defenses that request adjustment of contract terms must meet the 

jurisdictional prerequisites of the CDA, the common law defense of waiver does not 

because it does not require an adjustment to the contract terms. (Gov’t mot. at 3) 

The government cites to AFSA Int’l Constr. Ind. and Trade, Inc., ASBCA 

No. 57880, 14-1 BCA ¶ 35,736 as support (gov’t mot. at 3). In that decision, the 

Board ruled a contractor could raise the defense that the government waived its right to 

the completion dates and liquidated damages without first filing a CDA claim. AFSA 

Int’l Constr. Ind. and Trade, Inc., 14-1 BCA ¶ 35,736 at 174,911. The Board held that 

while the contractor’s defense did not seek an adjustment or modification of the 

contract terms, it did maintain the government waived rights already granted by the 

contract and therefore there was no requirement to submit a CDA claim before 

asserting such a defense. Id. That case is irrelevant here as the Board did not state, 

either at the hearing or in the decision, that a CDA claim needed to first be filed before 

consideration of the asserted defense. And regardless, here there is no allegation the 

appellant waived rights specifically granted under the government contract as written. 

See Securiforce Int’l America, LLC v. United States, 879 F.3d 1354, 1362-63. In this 
5

regard, in AFSA Int’l, there was no pre-negotiation standalone document on which the 

contractor was relying solely to support its defense.

The government acknowledges the Board has jurisdiction to consider concluded 

settlement agreements and binding alternative dispute resolution proceedings but also 

argues that the Board should extend this jurisdiction over the “the private settlement 

agreement” in this appeal (gov’t mot. at 5-6). The Executive Session agreement 

outlining the procedures for the nonbinding mediation was signed by counsel for the 

government and ECCI; the agency contracting officer did not sign the document (R4, 

tab S-74 at 5). The government cites to no recent law, decisions or otherwise, to 

support its conclusion and demonstrate an error of law in our decision. Rather, after 

being told at the hearing of the Board’s concerns, the government tries to take another 

bite at the apple by attempting to bolster contentions we have already rejected, or 

setting forth arguments that should have been presented in its post-hearing briefs after 

the Board judge informed the parties of the jurisdictional concerns.

2

 Accordingly, the 

government’s motion here fails.

2 For example, in its post-hearing brief, USACE argued that ECCI waived all claims 

not submitted by May 15, 2015, in the Executive Session agreement which 

“amounted to a partial compromise or settlement agreement” (gov’t br. at 99). 

Likewise, the government’s motion for reconsideration several times states the 

Executive Session agreement is a settlement agreement (although an atypical 

one) (see, e.g., gov’t mot. at 6). In its motion, however, the government also 

argues that the USACE trial attorney here “was acting within the scope of 

delegated authority from the Chief Trial Attorney to conduct litigation, and 

specifically had authority to ‘enter into an agreement on matters for which there 

[was] no substantial controversy and which [would] not have the effect of 

disposing of an appeal’” (gov’t reply at 7 quoting Army Federal Regulation 

Acquisition Supplement (AFARS), § 5133.212-96(b)(1)). It seems the agency 

is saying the AFARS grants the trial attorney the authority to enter into a 

settlement agreement, with no mention of the role of the contracting officer

here such as his/her authority or responsibility. USACE never raised the 

AFARS in its post-hearing briefs despite the Board specifically stating its 

concerns over the standalone Executive Session agreement between private

parties and the appellant’s post-hearing brief arguing the agreement was not a 

settlement agreement as it was not signed by the contracting officer or reduced 

to a contract modification (app. reply br. at 85). Rather, in its post-hearing 

brief, the agency merely stated that the agency counsel could bind the 

government in this Executive Session settlement agreement because he “had the 

power to commit to every obligation he undertook in that agreement on behalf 

of the Government” which was the procedural handling of disputes (resp. reply 

br. at 6-7).
6 

In addition, during the hearing the Board also stated there could be some 

interpretation issues with the agreement. Specifically, the Board stated it was unsure if 

the June 15 BCOE claim could be waived as of May 15 if the claim was based on 

documents that were produced as part of the settlement process (tr. 2/8). In the 

decision, the Board noted that the BCOE claim was based on documents ECCI 

received from the government through discovery shortly before the Executive Sessions 

began and ECCI was not aware of the BCOE claim before receipt of these documents. 

ECC Intern’l, LLC, 22-1 BCA ¶ 38,073 at 184,890. Therefore, even if the Board had 

jurisdiction, the government did not show that ECCI intended to waive the BCOE 

claim--a claim that it did not yet know existed by May 15. Further, the Board stated 

that the language in the Executive Session agreement did not expressly include such 

unknown claims and the words “appeals, claims and REAs” used in the footnote imply 

the matter was known and already part of the negotiation or dispute process. Id.

at 184,890-91. 

The government argues the agreement unambiguously applied to ECCI’s claims 

unknown at the time (gov’t reply at 2). In this regard, the government contends the 

agreement states that for completed Afghanistan projects, any further claims, REAs 

and appeals to the Board or court must be submitted or filed, with notice to USACE, 

by a date certain in May, and those claims, REAs or appeals may be added to the list 

of claims to be negotiated at the Executive Session. The agreement, however, also 

states that “the (substantive, as opposed to procedural) transactions or occurrences 

underlying such claims, REAs, or appeals” must have occurred before that May date. 

The Executive Session agreement then states that if any REAs, claims or appeals are 

not filed or submitted to USACE by that date, they are forever waived. Contrary to the 

government’s assertions, the agreement is not a model of clarity, and the government 

has failed to show that the Board’s interpretation is incorrect. 

The DBA Claim, ASBCA No. 60283 

The contracts at issue here contained a provision requiring ECCI obtain DBA 

insurance and maintain it until performance completion. ECC Intern’l, LLC, 22-1 

BCA ¶ 38,073 at 184,883 (finding 77). A contract line item number contained 

ECCI’s estimated DBA premium, including for ECCI’s subcontractors, but also stated 

that the government would pay the actual amount of the premiums as shown on the 

insurance company’s invoice. Id. If the insurance company recalculated the 

premiums, the contract would be adjusted via modification to reflect the change. Id.

ECCI’s estimated DBA premiums for the MP School and Signal School were 

$159,952.20, for which ECCI was paid. ECC Intern’l, LLC, 22-1 BCA ¶ 38,073 

at 184,883 (finding 78). During performance, ECCI incurred costs for DBA insurance 

premiums totaling $210,296, including premiums for its subcontractors. Id. at 184,884 

(finding 82). ECCI did not reimburse separately its subcontractors the premiums; rather, 
7 

the subcontractors were reimbursed via invoices submitted against their fixed-priced 

subcontracts for all work performed. Id. at 184,883 (finding 78). The insurance 

company recalculated the premiums and sent a refund of $64,283 directly to USACE, not 

ECCI, and then USACE issued a modification to the contract reducing the contract price 

and hence payments to ECCI in the amount of $64,283. Id. at 184,884 (finding 80). 

ECCI argued the government should not have modified the contract once it received the 

refund. Id.

The Board held that USACE recovered $64,283 twice--once from the insurance 

company and once from the modification reducing the contract price. ECC Intern’l, 

LLC, 22-1 BCA ¶ 38,073 at 184,885 (finding 85). The Board further held that there 

were no legal issues associated with this issue, just basic arithmetic. Id. at 184,897. In 

this regard, as the amount ECCI paid was $210,296, which USACE did not dispute, 

and USACE had paid ECCI the $159,952.20, but then reduced the contract line item 

by $64,283, USACE owed ECCI $114,627 plus CDA interest for the DBA premiums. 

Id. at 184,899. 

In its motion for reconsideration, the government argues the Board decided 

quantum despite specifically informing the parties it would only decide entitlement 

(gov’t mot. at 12). Specifically, the government contends the Board’s holding that 

USACE recovered twice on the insurance DBA recalculations is an issue of quantum 

because USACE did not present all of its available financial records or call any 

employee to testify on such records (id.). The government argues that such financial 

records will prove “there were no deductions from contract payments to Appellant in 

the amounts alleged by Appellant and awarded in the Board’s Decision based on a 

decontextualized interpretation of pay estimates” (id. at 12-13). In a footnote, the 

government contends the “Appellant has realized that the logical deduction by which it 

concluded that the amounts of DBA refunds were withheld from its contract payments 

is inconsistent with contract payment records” and therefore a hearing would not be 

necessary and the parties could merely exchange evidence and agree on quantum (id. 

at 13, n.1). The appellant failed to respond to the government’s argument and 

concluded its brief by saying only that the Board should deny the government’s 

“jurisdictional Motion to Reconsider” (app. reply at 10). 

In sum, USACE does not dispute the legal holding that there was a double 

recovery on the insurance premium by USACE, or other legal holdings on this issue. 

Rather, USACE argues that documents must be reviewed to determine actual 

payments made to the appellant under the fixed-priced contract to deduce the specific 

amount owed the appellant in light of the Board’s holding. As the appellant did not 

disagree with the government’s argument, we return the appeal to the parties to 

negotiate and resolve quantum on this issue. 
8 

CONCLUSION 

Accordingly, the government’s motion for reconsideration is denied in part and 

granted in part to the extent that we return the appeal to the parties to negotiate and 

resolve quantum regarding the DBA claim consistent with this decision. 

Dated: May 9, 2023 

LAURA EYESTER

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 Nos. 60167, 60283, Appeals of 

ECC International, LLC, rendered in conformance with the Board’s Charter. 

 Dated: May 9, 2023 

PAULLA K. GATES-LEWIS

Recorder, Armed Services 

Board of Contract Appeals