ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE GOVERNMENT’S 

PARTIAL MOTION TO DISMISS FOR LACK OF JURISDICTION

The government moves for the dismissal of parts of the appeal for lack of 

jurisdiction, saying that appellant, ECC International Constructors, LLC (ECCI), did not 

provide sums certain for what the government (U.S. Army Corps of Engineers or 

USACE) says are separate claims.

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

In September 2010, the parties contracted for ECCI to design and

construct a military compound in Afghanistan (R4, tab 5 at 2, 179 § 1.1). On May 2, 

2014, ECCI submitted to the contracting officer a demand for $3,767,856.32 “for the

design, procurement, logistics and construction cost impacts directly attributable to the 

extra work caused and directed by the Government during execution of the project,” more 

specifically: (1) design costs; (2) material procurement, shipping and labor costs 

associated with communications systems; (3) material procurement, shipping and labor 

costs associated with electrical systems; (4) material procurement, shipping and labor 

costs associated with heating ventilation and air conditioning (HVAC) systems; and 

(5) miscellaneous extra work (R4, tab 75 at 6). The submission further breaks the

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

Sarah L. Hinkle, Esq.

Geoffrey A. Mueller, Esq.

Kathryn G. Morris, Esq.

Matthew Tilghman, Esq.

 Engineer Trial Attorneys

 U.S. Army Engineer District, Middle East

 Winchester, VA
2

$3,767,856.32 demand amount into 23 direct cost items totaling $3,212,831.76, before 

adding general and administrative costs, fee, and bond, to arrive at the claimed total 

amount of $3,767,856.32 (R4, tab 75 at 55, 77-78). The government challenges the 

Board’s jurisdiction to entertain nine of those direct cost items: (1) Additional Outlets 

and Changed Configurations; (2) Additional and Changed Flexible Metal Conduit; 

(3) Legrand Raised Floor Communications Outlets; (4) 144 Port Fiber Optic 

Combination Units; (5) Trunk and Splice OSP Configuration, (6) Changed Direction 

Regarding Design and Provision of Uninterruptible Power Supply (UPS) System; 

(7) UL/R410 HVAC and Change to Accommodate Schedule; (8) Server Cabinets and 

Relay Racks; and (9) Additional Ladder Rack and Cable Tray (gov’t mot. at 4-5).

1. Additional Voice/Data and Printer Outlets and Changes to Configuration of 

Non-Office Outlets

In its submission to the contracting officer, ECCI makes a single request for 

$989,042.80 for (at least): (1) the government’s alleged “direction to ‘round up’ the 

number of outlets in each space determined by dividing the floor area of a particular 

office by the [contract] outlet density when the calculation resulted in less than a whole 

number”; (2) the government’s alleged direction to provide “two voice and two data 

connectors” every 4.5 square meters of floor area in certain office spaces; (3) the 

government’s alleged direction “to provide a standard ‘Office’ wall outlet with two voice 

and two data outlets in a six-plex plate in all non-office spaces”; (4) the government’s 

alleged direction that “raised access floor areas in the [Tactical Operations Center (TOC)] 

be equipped with one Secure, one Above Secret and one Non-Secure raised floor box per 

4.6 square meters of raised floor area”; and (5) the government’s alleged direction that 

ECCI provide additional non-Secure and Secure printer outlets (R4, tab 75 at 15-18).

a. Rounding Up

With respect to “rounding up,” ECCI in its submission to the contracting officer 

states:

The communications systems design reviewer directed that all 

room outlet calculations need to be reviewed to “ensure the 

number meets the requirements of [the contract].” A follow 

up review conference revealed that the reviewer was insisting 

on implementation of his interpretation of the contract

requirements regarding the number of outlets required in each 

building. Essentially, he was directing that the outlets density 

provisions in [the contract] be implemented with complete 

disregard of other applicable contract provisions or 

conditions. This included his direction to “round up” the 

number of outlets in each space determined by dividing the 
3

floor area of a particular office by [the contract] outlet density

when the calculation resulted in less than a whole number.

(R4, tab 75 at 15)

b. Two Voice and Two Data Connectors Every 4.5 Square Meters

 With respect to two voice and two data connectors every 4.5 square meters of 

floor area in certain office spaces, ECCI states:

The I3A (Department of the Army, Technical Criteria for the 

Installation Information Infrastructure Architecture), 

Paragraph 2.3.5.2, QUARTERS requires an outlet with just 

one connector compared to the two connectors in ECCI’s 

original design and the four connectors directed by the 

Government. The I3A states,

“For U.S. Army barracks projects, provide one 8-pin 

modular (RJ45 type) connector in a single gang outlet 

faceplate, labeled voice use, and one CATV outlet per 

sleeping/living area.”

So the communications system design reviewer’s direction 

. . . results in four times the cable and keystone modules 

required by the I3A and two times the number proposed in 

ECCI’s design.

. . . 

So while the Government was directing ECCI install a 

barracks communications system costing more than four

times the Army’s normal barracks communication system, 

there was apparently no requirement at all. The Government 

also directed the same outlet configuration for sleeping rooms 

in other buildings . . . . 

Similarly, for non-barracks, non-office spaces, the I3A only 

requires one voice and one data connector. And finally, the 

I3A only requires one outlet with one each voice and one data 

connector every 7.5 square meters of floor area in 

Headquarters, Administrative and Office spaces as compared 

to the 4.5 square meters and two voice and two data 
4

connectors the communications system design reviewer 

directed.

(R4, tab 75 at 16-17 (italics in original))

c. Additional Non-Secure and Secure Printer Outlets

With respect to the government’s alleged direction that ECCI provide additional 

non-Secure and Secure printer outlets, ECCI states:

[T]he Government communications design reviewer directed 

ECCI to provide a standard “Office” wall outlet with two 

voice and two data outlets in a six-plex plate in all non-office 

spaces. However, the barracks rooms, sleeping rooms in 

other buildings, maintenance spaces, game rooms, etc. 

throughout the project are not offices, and the contract is

silent regarding the outlet configuration for non-office spaces 

except for those with raised computer flooring.

(R4, tab 75 at 16)

d. Raised Access Floor Areas in the TOC Be Equipped with One Secure, One 

Above Secret and one Non-Secure Raised Floor Box Per 4.6 Square Meters

With respect to the government’s alleged direction that “raised access floor areas 

in the TOC be equipped with one Secure, one Above Secret and one Non-Secure raised 

floor box per 4.6 square meters of raised floor area,” ECCI states:

The communications system design reviewer also directed

that raised access floor areas in the TOC be equipped with 

one Secure, on Above Secret and one Non-Secure raised floor 

box per 4.6 square meters of raised floor area, equating to 

30 outlet groups in each of the four TOC open work areas, 

which have a calculated . . . occupancy of 15. However, the 

raised floor boxes described in [the contract] are configured 

to service two work stations per floor box. ECCI’s position is 

that one floor box was required for every two work stations, 

which would number 15. Clearly, it is not the intent of the 

contract to install enough outlets to serve 60 work stations in 

a space which has a calculated . . . occupancy of 15, nor to 

install enough outlets to serve 240 work stations in the small 

TOC facility when the design population for the entire project 

that includes major 12 non-barracks buildings is just 400.
5

(R4, tab 75 at 17 (emphasis in original, alteration added))

e. Additional Non-Secure and Secure Printer Outlets

With respect to the government’s alleged direction that ECCI provide additional 

non-Secure and Secure printer outlets, ECCI states:

Based on the direction to increase the number of outlets 

throughout the project, the communications system design 

reviewer also directed a significant increase in the number of 

non-Secure printer outlets, based on the voice/ data outlet 

increase. The contract requires just 15 Secure printer outlets 

for the entire project with the location of both Secure and 

non-Secure printer outlets to be provided by the COR 

[Contracting Officer’s Representative]. These locations were 

not provided by the COR or the communications system 

design reviewer until the 3rd 100% submission. The direction 

finally provided resulted in a total of 23 Secure printer outlets 

throughout the project compared to the required 15.

(R4, tab 75 at 17-18 (bracketed material added))

We find that the above constitutes at least five sets of materially different, 

unrelated operative facts: (1) one concerning the government’s alleged direction to 

“round up” the number of outlets in each space; (2) one concerning the government’s 

alleged direction to provide two voice and two data connectors every 4.5 square meters of 

floor area in certain office spaces; (3) one concerning the government’s alleged direction 

“to provide a standard ‘Office’ wall outlet with two voice and two data outlets in a 

six-plex plate in all non-office spaces”; (4) one concerning the government’s alleged 

direction that “raised access floor areas in the TOC be equipped with one Secure, one 

Above Secret and one Non-Secure raised floor box per 4.6 square meters of raised floor 

area”; and (5) one concerning the government’s alleged direction that ECCI provide 

additional non-Secure and Secure printer outlets.

2. Additional and Changed Flexible Metal Conduit

In its submission to the contracting officer, ECCI makes a single request for 

$191,328.07 for “additional and changed flexible metal conduits for raised floor 

communications outlets” (R4, tab 75 at 19-21). ECCI states that “[c]ommunications 

system design reviewer comment 4331500 first insisted the flexible conduit servicing 

raised floor communications outlets be UL listed and that ECCI provide an ‘extra’ 

conduit to each box when there are no such requirements in the contract” (R4, tab 75 
6

at 19 (emphasis added)). We find that those constitute two sets of materially different, 

unrelated operative facts: one concerning the alleged government insistence that outlets 

be UL listed, and one concerning the alleged government insistence that ECCI provide 

extra conduit.

3. Legrand Raised Floor Communications Outlets

In its submission to the contracting officer, ECCI makes a single request for 

$51,471.07 for its Legrand Raised Floor Communications Outlets claim (R4, tab 75

at 21-22). ECCI explained to the contracting officer that:

ECCI’s 100%, [sic] design submissions through 4 January 

2013 reflected six gang raised access floor boxes. However, 

the Governments [sic] directed change to British Standard 

[BS] outlets required ECCI to re-evaluate the size and 

configuration of the boxes. In response to the design 

reviewer’s backcheck recommendation for comment 4329826 

stating “A cut sheet for the floor box is required in this 

design”; ECCI responded on 22 Feb 2013 that, “DIN outlets 

no longer required. British standard outlets being evaluated 

for use within the floor box recommended by the Reviewer.”

The floor box “recommended” by the reviewer 

(Mr. Hopkins)1 was the Legrand Evolution Series eight gang 

box. However, the box would not accommodate two duplex 

BS outlets. 

After “recommending” the Legrand floor box, Mr. Hopkins 

[then] explicitly directed its use on 18 March 2013 despite 

ECCI’s concerns that it was not compatible with the BS 

outlets.

. . .

The ultimate solution to fitting the directed BS outlets into the 

directed Legrand box required an increase in box size from 

six to eight gang and a special order electrical mounting 

bracket. Additionally, because Mr. Hopkins had also directed 

that three 35 mm flexible conduits be connected to each box 

instead of the contractually required one 25 mm conduit 

 1 Chip Hopkins was the government’s design reviewer (R4, tab 75 at 18).
7

(addressed previously), special additional 2 inch diameter 

knockout plates were also required.

After determining the above solution, ECCI submitted eight 

gang Legrand boxes in its construction submittal on 12 May 

2013 and they were approved immediately.

(R4, tab 75 at 21-22 (underscored emphasis and bracketed material added, other emphasis 

in original)) ECCI also explained that:

However, after [the eight gang Legrand boxes] arrived on 

site, they still required unexpected field modifications in 

order to fit the BS outlets onto the mounting bracket. The 

field modifications involved cutting and filing the bracket 

cutouts so the BS outlets would fit.

In summary, the Government’s inappropriate direction to use 

Legrand outlet boxes, in conjunction with the modification 

requiring BS outlets, resulted in ECCI having to procure eight 

gang Legrand boxes that required custom ordered parts and 

field modifications instead of a contractually compliant six 

gang box requiring no modification. The delay in resolving 

this issue required ECCI to airfreight the boxes from the US 

and incur significantly increased the cost of materials and 

installation.

(R4, tab 75 at 22) We find that the above constitutes at least two sets of materially 

different, unrelated operative facts: one concerning the alleged government direction to 

use Legrand outlet boxes, and one concerning the alleged government direction that 

“three 35 mm flexible conduits be connected to each box instead of the contractually 

required one 25 mm conduit.”

4. 144 Port Fiber Optic Combination Units (FOCUs)

In its submission to the contracting officer, ECCI makes a single request for 

$35,535.28 for the government’s alleged direction that ECCI: (1) provide “144 port 

FOCU’s when 48 port units were more than sufficient,” and (2) provide “additional 

FOCU’s for single mode fiber that were not needed” (R4, tab 75 at 30-31). ECCI states:
8

Mr. Hopkins directed that “The FOCUs for the OSP [outside 

plant]2 have to be a four RMU high unit to handle 144 

strands.” ECCI disagreed but . . . Mr. Hopkins continued to 

insist that all FOCUs have 144 ports instead of the contract 

specified minimum size of 48 ports . . . . 

Further, . . . Mr. Hopkins directed that, “The single mode and 

multimode fiber cannot be terminated in the same 

combination unit, whether there is a divider or not. A 

variation for consolidation will not be entertained.” . . . . 

This direction resulted in additional unneeded FOCUs in two 

story buildings. For example, in the case of the two story 

barracks, Mr. Hopkin’s [sic] direction resulted in the first 

floor relay rack having three FOCUs with 288 ports when 

there are only 36 fibers requiring termination.

(R4, tab 75 at 30-31 (bracketed material added, emphasis in original)) We find that the 

above constitutes two sets of materially different, unrelated operative facts: one 

concerning the alleged government direction to provide 144 port FOCU’s, and one 

concerning the alleged government direction to provide additional FOCU’s.

5. Directed Trunk and Splice OSP Fiber Configuration

In its submission to the contracting officer, ECCI makes a single request for 

$81,256.21 for the government’s alleged direction that (1) ECCI provide OSP fiber 

arranged in a “trunk and splice” configuration instead of ECCI’s proposed “star 

(homerun) topology,” and (2) ECCI provide that “the OSP fiber optic cable include 25% 

space capacity” (R4, tab 75 at 32-34). ECCI states:

The communications system design reviewer directed during 

his 65% review that the OSP fiber cable be arranged in his 

desired “trunk and splice” configuration. ECCI non-concurred 

with his direction . . . .

. . .

 2 “OSP” and “outside plant” evidently derive from the “‘United States Army Information 

Systems Engineering Command Worldwide Outside Plant Design and 

Performance Requirements’ (OSPDPR)” (R4, tab 75 at 33).
9

It is the position of ECCI and the DOR [designer of record] 

that the most appropriate design for any “customer owned 

outside plant” is direct home runs.

. . .

Additionally, Mr. Hopkins had directed that OSP fiber cable 

include 25% space capacity. The ECCI DOR has attempted 

to accommodate his requests and added additional fiber not 

required by the contract. However, during his review of 

ECCI’s 100% communications system design submission in 

November 12, [sic] Mr. Hopkins directed the number of 

fibers be further increased:

“The OSP does not have the 25% spare capacity as 

required in the [request for proposals]. When the size 

of the cable changes, all of the cable labels will more 

than likely change AND, additional cables may have to 

be added which will change the design considerably.”

(R4, tab 75 at 32-33 (emphasis in original, bracketed material added)) Finally, ECCI 

identifies the requested $81,256.21 as “the additional cost associated with the 

Government’s direction to provide a trunk and splice OSP configuration and to provide 

additional fibers” (R4 tab 75 at 34 (emphasis added)). We find that the above constitutes 

two sets of materially different, unrelated operative facts: one concerning the 

government’s alleged direction that ECCI provide OSP fiber in a trunk and splice 

configuration, and one concerning the government’s alleged direction that ECCI provide 

OSP fiber optic cable that included 25% spare capacity.

6. Changed Direction Regarding Design and Provision of Uninterruptible Power 

Supply (UPS) System

In its submission to the contracting officer, ECCI requests $67,721 for the 

government’s alleged direction that ECCI provide a UPS system (R4, tab 75 at 40). 

ECCI states that initially, the government directed ECCI to refrain from designing and 

installing a UPS system, but later directed ECCI to provide such a system without, 

apparently, specifying the size of the system (R4, tab 75 at 39). ECCI states that it 

notified the government that it intended to provide a 120 KVA system, explaining that:

This significant change in direction at this late stage of the 

project will impact schedule and cost, so we will submit our 

request for equitable adjustment or, preferably, our response 

to a Government RFP as soon as possible.
10

(R4, tab 75 at 39-40 (italics in original)) ECCI states that, in response, the government 

directed that ECCI instead provide a 200 KVA UPS system (R4, tab 75 at 39-40). ECCI 

responded that:

“ECCI will proceed with completing the design and 

providing the system. We disagree with the Government’s

assessment of the required system size and stand by our 

determination that a 120 KVA system is appropriate and 

meets the stated requirements. Additionally, an optional 

maintenance bypass switch is not specified in the contract 

requirements, and the unit only requires minimum 30 minute 

battery operation during power failure. However, based on 

your direction, we will proceed with providing the 200 KVA 

systems with maintenance bypass and extended battery 

backup and will include the additional costs and time

associated with the larger system and the late timing of this 

direction in a Request for Equitable Adjustment to be 

submitted as soon as possible.”

(R4, tab 75 at 39 (italics in original, boldface added)) ECCI further states that:

The Government’s direction to provide a 200 KVA system is 

based on improperly ignoring USACE’s standard demand, 

load and coincidence factors and enforcing erroneous

“previous guidance” to provide 20% in additional capacity 

that is not required by the contract. An available 200 KVA 

system could not be identified, so ECCI was forced to procure 

and airfreight a 225 KVA capable system and bypass switch. 

Late arrival of the much larger than required system and 

bypass switch required significant rework in the UPS room 

prior to installation of the system. This [claim] is for the cost 

of the larger system and switch, airfreight and rework in the 

UPS room.

(R4, tab 75 at 40) We find that the above constitutes at least two sets of related 

materially different, unrelated operative facts: one concerning the government’s 

allegedly belated direction to provide a UPS system, and one concerning the 

government’s alleged direction to provide a UPS system larger than 120 KVA.
11

7. HVAC Systems

In its submission to the contracting officer, ECCI makes a request for $878,675.34

for “the Government’s direction to provide UL equipment using R410 and its subsequent 

directed acceleration and phased turnover” (R4, tab 75 at 48). ECCI states:

ProjNet Comment 4131009 from the Mechanical Design

reviewer . . . was the first indication that the Government was 

expecting UL listed HVAC equipment. ECCI’s response to 

that comment was that UL listed equipment was not a 

requirement . . . . 

On 29 May 2012, ECCI submitted its first HVAC product 

data . . . . 

. . .

[O]n 18 Jun 12 USACE provided new review comments and 

again disapproved the submittal . . . . The comments were 

primarily based on the Government’s overarching 

requirement that the equipment be:

1. UL listed . . . .3

2. Use R410 refrigerant

So the Government disapproved the proposed equipment, in 

part, for not being UL listed . . . . ECCI promptly addressed

all review comments . . . . 

(R4, tab 75 at 42-43) Among those comments, ECCI states that “the use of R22 in new 

equipment in Afghanistan . . . is actually in full compliance with . . . our contract.” (R4, 

tab 75 at 43 (italics deleted)) ECCI further states:

Despite ECCI’s detailed explanation of its position, the 

Government refused to acknowledge that non-U.S. material 

was allowed by the contract and issued [an August 5, 2012 

letter] restating its position that UL listed material was 

required because “100 % cleared for construction 

specifications” had inadvertently and incorrectly included 

those requirements. The Government maintained that the 

 3 ECCI also (and elsewhere) references an alleged testing requirement, “per 

ANSI/ASHRAE,” that we find unnecessary to include.
12

specifications could not be revised by the Contractor after 

“clearance for construction” had been issued. However, no 

such clearance had been issued at the time and in fact has not 

been issued to date. Furthermore, the notion that the 

specifications could not be revised is in direct contravention 

to [a government September 2012 letter] that had directed the 

. . . Mechanical Specifications be revised and resubmitted.

ECCI resubmitted the proposed HVAC equipment product 

data with its position clearly stated in response to the 

Government comments. On 10 August 2012 USACE once 

again [] disapproved the proposed equipment . . . . ECCI 

informed USACE of the intention to resubmit selected 

Mechanical specs thus aligning it with contact [sic]

requirements.

The Government [in August and September 2012] reiterated 

its demand for UL listed material . . . . 

ECCI continued to maintain that the disapproval of our 

proposed equipment on the basis that it is 1) not UL listed nor

tested . . . and 2) R-22 refrigerant is not allowed, was not 

consistent with the contract requirements.

. . .

[On November 16, 2012, ECCI] provided revisions to the 

100% mechanical specs and further clarified our position 

regarding ECCI’s contractual right to correct the mechanical 

specifications by responding to each Government statement 

. . . .

(R4, tab 75 at 44-45 (alterations and bracketed material added)) ECCI provided the 

following excerpt of its November 16, 2012 letter to the government:

Our designer erred in including the UL . . . and R-410

requirements in our 100% specifications. The last 

Government review of our Mechanical design submittal 

resulted in direction to resubmit. We have therefore 

corrected the errors in the specifications . . . .

Further, there is no language in the contract that states the 

more rigorous HVAC requirements between conflicting 
13

Contractor developed specifications and original contract 

requirements take precedence. In fact [the contract] 

indicates that design products actually have the lowest 

precedence. 

. . .

Therefore, if we have inadvertently or mistakenly included 

provisions in our design that are not contract requirements, 

those erroneous requirements are not binding and correcting 

them is perfectly reasonable and allowed . . . .

(R4, tab 75 at 45 (italics in original, bracketed material added)) In its May 2, 2014 

submission to the contracting officer, ECCI further states:

[In September and November 2012,] ECCI once again 

presented its position that UL and R410 criteria had been 

mistakenly incorporated into the specifications by its design 

team and that the specifications were not binding since ECCI, 

as the design-build contractor, was responsible for correcting 

the errors in the design specification in accordance with the 

terms of our contract.

. . .

Further, USACE approved R22 units for all split pack units 

located throughout the project and their unreasonable

disallowance of R22 equipment for the large HVAC systems 

served no purpose but to increase ECCI’s costs, delay the 

project and complicate the maintenance and operations 

functions of the facility.

. . .

The Government once again forbid ECC [sic] to revise its 

specification and continued to direct the use of UL listed 

material with R410 refrigerant. 

. . .

Subsequently, two meetings were held [in November 2012] 

between ECCI management and [government officials] to 
14

address this and other issues. At the second [November 30, 

2012] meeting USACE explicitly directed for the first time 

for ECCI to provide UL equipment with R410 refrigerant. 

 

[On November 20, 2012, ECCI] acknowledged the USACE 

direction to proceed with UL / R410 equipment and stated 

ECCI would be submitting [a Request for Equitable 

Adjustment] regarding this issue. . . . ECCI quickly 

assembled a new construction submittal package proposing 

UL listed Carrier HVAC equipment and submitted it on 

8 December 2012 . . . . 

However, despite the fact that the product data submitted

clearly showed the equipment was UL listed and used R410 

refrigerant . . . [,] the reviewer unreasonably rejected the

submittal. After taking 55 days for its review, USACE had 

not conducted any technical review of the proposed 

equipment and unreasonably disapproved the submittal 

because of just three issues . . . . One comment pertained to 

the format of the submittal and, incredibly, two pertained to 

references to R22 and CE compliant equipment in the 

previous mechanical specifications that had not yet been 

revised. No technical comments were provided. Following 

the resubmission of the same product data . . . , the 

Government finally approved the proposed Carrier HVAC 

product data on 7 March 2013.

The total caused by the unreasonable and improper direction 

to use UL listed equipment with R410 refrigerant caused a 

267 day delay between the unreasonable disapproval of 

ECCI’s first construction submittal on 13 June 2012 and the 

eventual approval of the Carrier products on 7 March 2013.

However, subsequent to the Government’s direction to 

accelerate and phase the turnover of facilities, ECCI 

determined it was unable to use the approved Carrier brand 

and had to switch to more expensive Aaon and Trane units in 

order to meet the Government’s directive to accelerate and 

phase the turnover of facilities. In fact ECCI had to issue [a] 

stop work order to Carrier after making a 30% advance

payment against the Purchase Order issued on 27 Mar 13. 

ECCI informed USACE of the additional costs associated the 

Government would incur [sic] as a result of changing the 
15

HVAC suppliers at the weekly . . . conference call on 8 May

2013. The Contracting Officer [and other government 

officials] were on the call and all agreed the change was 

necessary.

(R4, tab 75 at 47-48 (emphasis, alterations, and bracketed material added))

We find that the above constitutes at least two sets of materially different, 

unrelated operative facts concerning: (1) the government’s alleged direction that ECCI 

use UL listed equipment with R410 refrigerant; and (2) the government’s alleged 

direction to accelerate and phase the turnover of facilities, resulting in an alleged decision 

by ECCI to switch from providing Carrier HVAC units to other, more expensive units.4

8. Server Cabinets and Relay Racks

In its submission to the contracting officer, ECCI makes a request for $135,270.33 

for “the additional material and shipping costs associated with the Government’s 

misapplication of TEMPEST requirements and unreasonable issuance of the unilateral 

modification for Communications Building Server Cabinets and Racks” (R4, tab 75 

at 25-30). ECCI quotes from what it says is its letter to the government:

“The communications system reviewer is maintaining all 

requirements associated with meeting a TEMPEST 

accreditation in the SCIFs, including maintaining one meter 

separations between the different communications systems, 

are required. However, TEMPEST countermeasures are not 

mandated for continuously operated SCIFs as we confirmed 

in our letter . . . of 31 March 2011 . . . . That letter provided 

the basis for our proposal for the change of SCIF 

requirements . . . . In regard to SCIF accreditation checklist . 

. . we stated ‘We have assumed facility does not require 

TEMPEST countermeasures.’ The modification was issued in 

the exact amount of our proposal without negotiations or 

clarification requests from the Government.”

(R4, tab 75 at 25 (italics in original, underscored emphasis added)) In its submission, 

ECCI further states:

 4 Because of our decision below, we need not decide whether these two sets of facts 

themselves contain, within each of them, more than one set of materially different, 

unrelated operative facts.
16

The Government requested ECCI’s assumptions with its 

proposal to ensure the scope of the modification was clear to 

both ECCI and the Government before its issuance. Since it 

was issued based on those assumptions, the assumptions are 

clearly incorporated by the issuance of the modification. 

However, the Contracting Officer’s response . . . stated:

“The design is required to conform to the most

stringent TEMPEST requirements, including the 

1 meter separation between equipment racks, as 

well as other TEMPEST separation distances and 

controls area design requirements.”

ECCI proceeded with the direction in the Contracting 

Officer’s . . . letter, however, we continue to maintain the 

contract, as modified, does not require application of the 

“most stringent” TEMPEST requirements nor does it require 

one meter separation between all equipment racks. First, 

ECCI continues to maintain that Modification A0004 deleted 

any TEMPEST countermeasure requirements in SCIFs based 

on ECCI’s clarifications regarding the modification’s scope 

and the Government’s acceptance of those clarifications. 

However, notwithstanding any impact on TEMPEST 

requirements from the modification, the original contract does 

not require “the most stringent TEMPEST requirements, 

including the 1 meter separation between equipment 

racks” as directed by the Contracting Officer.

. . .

The Government’s direction to separate all relay racks by one 

meter significantly compounded the problem of fitting the 

racks into the communications rooms. Communications

room layouts for racks, ladder racks, etc. required continual 

revisions and to such an extent that in Building J ECCI 

actually had to change from floor mounted relay racks to wall 

mounted racks.

(R4, tab 75 at 25-27) ECCI continues:

Additionally, . . . the communications system design reviewer 

continued to direct ECCI to provide the Communications 

Building server cabinets and racks that ultimately the 
17

Government agreed were not in our contract. After several 

exchanges of ProjNet comments and official correspondence, 

the Government finally conceded the work was not in our 

contract, and . . . stated a modification would be required. An 

RFP was issued . . . . ECCI submitted its original proposal . . 

. .

ECCI was then required to revise its proposal because the 

Government communications system design reviewer 

inappropriately disapproved ECCI’s original server cabinet 

and relay rack construction submittals. The Government 

directed ECCI to re-price its proposal using a Government 

specified cabinet from Black Box instead of the less 

expensive, contract compliant Chatsworth cabinets ECCI had 

originally intended to use. 

. . .

The modification was not issued for three months after it was 

negotiated. While ECCI had previously agreed to the pricing 

adjustment in the modification that was ultimately unilaterally 

issued . . . , the delay in preparation of the modification by the 

Government made the schedule and pricing impacts estimated 

by ECCI obsolete. Moreover, ECCI was concerned about the 

impact the modification would have on the relay racks that 

were required under the original contract, which would now 

have to match the cabinets the Government directed in this 

modification. ECCI clearly expressed its concern regarding 

impact on the relay rack requirements during the negotiations, 

during which the Government agreed to include language in 

the modification that would recognize ECCI’s right to request 

a contract adjustment for any impact of the server cabinets 

directed in this modification on the cost and time associated 

with the relay racks required by the original contract. When

the Government sent the modification for ECCI’s signature 

three months later, however, such language was not included 

as previously agreed. Instead, the standard closing statement 

was included essentially barring ECCI from pursuing an 

REA. Because of these reasons, ECCI did not agree with the 

modification and requested a provision be added . . .

addressing ECCI’s concerns as originally agreed during the 

negotiations. The [government] responded:
18

“Your request makes no sense. This is a modification. 

As such, the contractor and the Government negotiate 

the price of what needs to be delivered based on the 

contractor’s costs. If you were directed to obtain 

specific items, as you claim, then that cost ought to be 

part of your proposal and it gets negotiated. Mod gets 

executed based on what was negotiated. End of 

story.”

(R4, tab 75 at 27-28 (italics and bolded material in original, underscored emphasis 

added)) ECCI further states that after urging ECCI to sign the modification, the 

government eventually issued the modification unilaterally, “incorporating ECCI’s 

obsolete pricing and schedule impacts and failing to include the provision USACE

originally agreed to include” (R4, tab 75 at 30). ECCI continues:

This issue served to generate numerous Government 

comments and back check comments directing ECCI to 

reflect the desired system in the design before it was added to 

the contract by modification. This in turn served to increase 

the cost of subsequent communications system design 

submittals. This issue also postponed ECCI’s ability to 

procure not only the server cabinets added by the 

modification, but also the relay racks in the original contract, 

which were changed by the modification, which ultimately

necessitated air freighting the cabinets at a significantly 

higher cost than anticipated. Further, the cabinets specified 

by the Government were 45 U high cabinets when the 

contract, changed by P0007, required only 42U high relay 

racks. Therefore, the unilateral modification did not 

adequately adjust contract time or price and increased the 

procurement cost of relay racks that [the government] refused 

to address with the modification previously agreed to.

(R4, tab 75 at 30 (alterations added))

We find that the above constitutes two sets of materially different, unrelated 

operative facts: one concerning the government’s alleged direction to separate all relay 

racks by one meter, and one concerning the government’s alleged direction that ECCI 

provide server cabinets and racks not required by the contract.
19

9. Ladder Cable Tray Around the Entire Perimeter of Communications Rooms and 

Overhead Cable Tray in Tactical Operations Center (TOC)

In its submission to the contracting officer, ECCI makes a request for $153,307.02 

for alleged “additional work associated with the additional ladder rack and overhead 

cable tray in the TOC building” (R4, tab 75 at 22-25). ECCI states:

[T]he communications system design reviewer[] continued to 

insist that cable ladder rack was required around the entire

perimeter of all telecommunications rooms . . . . Our design 

showed ladder rack routed around the perimeter of the 

telecommunications rooms as necessary to serve the 

cabinets/racks . . . . 

. . .

Conservatively speaking, the amount of ladder rack installed 

project wide doubled over the contract required amount 

because of the communications system design reviewer 

direction. 

Project wide, the additional work associated with the 

additional ladder rack and the overhead cable tray in the TOC 

building discussed previously in relation to additional outlets 

resulted in the below direct cost increase . . . .

(R4, tab 75 at 22-25 (emphasis in original)) We find that the above constitutes two sets

of materially different, unrelated operative facts: one for “additional work associated 

with the additional ladder rack,” and one for “the overhead cable tray in the TOC 

building.”

DECISION

ECCI has the burden of proving the Board’s jurisdiction by a preponderance of the 

evidence, including that it presented to the contracting officer a claim, which, in the case 

of a demand for money, must be stated in a sum certain. See Naseem Al-Oula Co., 

ASBCA No. 61321 et al., 20-1 BCA ¶ 37,490 at 182,148. We also have an independent 

obligation to determine our own jurisdiction. See Stobil Enters. v. Dep’t of Veterans 

Affairs, CBCA No. 5246-R, 17-1 BCA ¶ 36,610 at 178,323. To the extent that any of the

bases of our jurisdictional determinations go beyond the arguments that the parties have 

briefed, the parties may request reconsideration. See id.
20

We determine whether a contractor’s submission is a claim on a case-by-case 

basis, applying a common sense analysis. ECC Int’l Constructors, LLC (ECCI), ASBCA 

No. 59586, 21-1 BCA ¶ 37,862 at 183,854. Identifying what constitutes a separate claim 

is important. Id. The jurisdictional standard must be applied to each claim, not an entire 

case; jurisdiction exists over those claims that satisfy the requirements of an adequate 

statement of the amount sought and an adequate statement of the basis for the request. Id.

at 183,854-55. Congress did not intend the word “claim” to mean the whole case 

between the contractor and the Government, but, rather, that “claim” means each claim 

under the Contract Disputes Act (41 U.S.C. §§ 7101-7109) for money that is one part of a 

divisible case. Id. at 183,855. The requirement that a claim adequately specify both the 

amount sought and the basis for the request means that requests involve separate claims if 

they either request different remedies (whether monetary or non-monetary) or assert 

grounds that are materially different from each other factually or legally. Id. This

approach, which has been applied in a practical way, serves the objective of giving the 

contracting officer an ample, pre-suit opportunity to rule on a request. Id. 

Claims seeking different types of remedy, such as expectation damages versus 

consequential damages, are different claims. Id. Presenting a materially different factual 

or legal theory (e.g., breach of contract for not constructing a building on time versus 

breach of contract for constructing with the wrong materials) creates a different claim. 

Id. We must go beyond the face of claims to make these distinctions. Id. For example, 

although there may be a common type of fact involved in a contractor’s various extended 

overhead claims (i.e., a cause of delay), that does not necessarily mean that each claim 

involves proof of a common or related set of operative facts. Id. Such a “factual thread” 

is not determinative of whether there is only a single, unitary extended overhead claim. 

Id.

Consequently, a contractor’s monetary claim must not only state a bottom-line 

sum certain for the overall claim, it must also state a sum certain for any distinct claim 

component within the overall claim. Id. If no sum certain is specified, the contracting 

officer cannot settle the claim by awarding a specific amount of money, because such a 

settlement would not preclude the contractor from filing suit seeking the difference 

between the amount awarded and some larger amount never specifically articulated to the 

contracting officer. Id.

Above we have found that each of the following purported claims (the 

government’s jurisdictional challenge to which comprises the whole of the government’s 

motion to dismiss), which ECCI presented to the contracting officer as single claims, 

consists of more than one set of materially different, unrelated operative facts, and 

therefore consists of more than one “sub-claim,” for which sub-claims ECCI did not 

provide the contracting officer separate sums certain: (1) Additional Outlets and 

Changed Configurations; (2) Additional and Changed Flexible Metal Conduit;

(3) Legrand Raised Floor Communications Outlets; (4) 144 Port Fiber Optic 
21

Combination Units; (5) Trunk and Splice OSP Configuration, (6) Changed Direction 

Regarding Design and Provision of UPS System; (7) UL/R410 HVAC and Change to 

Accommodate Schedule; (8) Server Cabinets and Relay Racks; and (9) Additional 

Ladder Rack and Cable Tray. Because ECCI did not specify for the contracting officer 

those separate sums certain, the Board does not possess jurisdiction to entertain those 

nine purported single claims, which are, consequently, dismissed from the appeal. 

Citing Phi Applied Physical Sciences, Inc., ASBCA No. 56581, 13 BCA ¶ 35,308 

at 173,337, ECCI invokes the rule that the sum certain requirement is met if the sum, 

although not expressly totaled by the contractor, “is readily calculable by simple 

arithmetic” (app. opp’n at 31-32), saying that:

[T]he Government could have determined the sum certain 

attributable to any of the alleged sub-sub-claims via simple 

math using the PDF cost documentation included in ECCI’s 

claim. For each alleged sub-sub-claim, the Government 

needed only to add up the relevant quantities for a particular 

issue, and then apply the relevant unit pricing for those items.

(App. opp’n at 31-32) In support of that position, ECCI refers the Board to the affidavit 

of Scott A. Hayward, who describes, referencing spreadsheets from ECCI’s submission 

to the contracting officer, how he says the sums certain for sub-claims can be calculated

(app. opp’n at 31-32, ex. 1 at ¶¶ 5-31 (citing R4, tab 75 at 87-117, tab 321)). Having 

reviewed that affidavit and those spreadsheets, we disagree that sums certain for the 

sub-claims at issue are readily calculable by simple arithmetic. Rather, as the 

government points out (gov’t reply at 32), ECCI offers calculations like the following:

To calculate the costs associated with the additional outlets 

due to “rounding up,” you would: 1) in Additional Changed 

Outlets worksheet, zero out all items in Cells E6-L263 other 

than those in Rows 6-40, 140, 177-185, 204 and 245; 2) in the 

Outlet Quantities worksheet, zero out all items in Cells B23-

Q181 except those in Rows 23, 96, 120, 134 and 169; and 

3) in the Added Outlet Pricing worksheet, delete the entry in 

Row 19, with the total direct cost of $143,155.58 in Cell J20. 

After adding G&A and profit, the total sum is $165,974.25.

(app. opp’n, ex. 1 at 6 ¶ 27) That is not simple arithmetic. Cf. Taj Al Rajaa Co., 

ASBCA No. 58801, 14-1 BCA ¶ 35,522 at 174,104 (“Since the alleged contract specified 

the monthly unit price of $2,516, by simple arithmetic the claim amounted to $25,160.”); 

Mulunesh Berhe, ASBCA No. 49681, 96-2 BCA ¶ 28,339 at 141,520 (simple 

multiplication of lease rental rate by number of months resulted in sum certain); 

Dillingham Shipyard, ASBCA No. 27458, 84-1 BCA ¶ 16,984 at 84,612 (sum certain
22

determinable by multiplying hourly rate by claimed hours). ECCI fails to demonstrate 

that the sums at issue are readily calculable by simple arithmetic. See ECCI, 21-1 BCA 

¶ 37,862 at 183,856 (citing cases).

CONCLUSION

The government’s partial motion to dismiss for lack of jurisdiction is granted, and 

the purported claims identified above are dismissed from the appeal.

Dated: November 9, 2021

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
23 

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: 

PAULLA K. GATES-LEWIS

Recorder, Armed Services 

Board of Contract Appeals

 November 10, 2021