ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of-- ) 

) 

Korea Engineering Consultants Corporation ) 

) 

UnderContractNo. W91QVN-17-P-0099 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 61724 

Mr. Byung Chan Park 

Vice President 

Scott N. Flesch, Esq. 

Army Chief Trial Attorney 

MAJ Wayne T. Branom III, JA 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE STINSON 

Appellant, Korea Engineering Consultants Corporation (KECC), appeals a 

contracting officer's final decision dated June 22, 2018, denying-in-part appellant's 

May 11, 2018, certified claim for breach of contract in the amount ofKRW 301,598,400 

(R4, tabs 39-40). We have jurisdiction pursuant to the Contract Disputes Act of 1978, 

41 U.S.C. §§ 7101-7109. The parties agreed to submit this appeal for a decision on the 

record without a hearing pursuant to Board Rule 11. The government submitted an 

initial brief and appellant declined the opportunity to submit any brief. For the reasons 

stated below, we deny KECC's appeal. 

FINDINGS OFF ACT 

1. On August 24, 2017, the 411 th Contracting Support Brigade, Korea, entered into 

Contract No. W91QVN-17-P-0099 with KECC in the amount ofKRW 95,880,000.00 for 

gravel delivery and equipment lease (R4, tab 1 at 1-2). The contract required: delivery of 

170 cubic meters of38mm-50mm diameter gravel (CLIN 0001); delivery of85 cubic 

meters of 100mm-152mm diameter gravel (CLIN 0002); lease of a Caterpillar CS-563D 

roller, or equal, loaded on a transport vehicle (CLIN 0003); and lease of 2 Doosan 

DX500E hand drum rollers, or equal, loaded in dump trucks (CLIN 0004) (R4, tab 1 

at 3-5, 11). 

Contractual Provisions 

2. The contract specified a 30-day lease period for the Caterpillar roller and the 

two hand drum rollers (R4, tab 1 at 4-5). 
l 

1 

l 

3. Section 1 of the contract's Statement of Work provided: 

Scope of Work: This SOW describes the requirements for 

the delivery of gravel and construction equipment in 

support of 35th Air Defense Artillery and 8th Army 

Engineers construction efforts in the vicinity of 

USAG-Daegu. The Contractor shall deliver gravel 

conforming to the characteristics of the CLIN 0001 and 

0002 narratives as directed by the Contracting Officers 

[sic] Representative (COR). The Contractor shall deliver 

construction equipment conforming to the characteristics 

of the CLIN 0003 and 0004 narratives as directed by the 

COR in accordance with this SOW and delivery schedule. 

(R4, tab 1 at 11) 

(Id.) 

4. Section 2 of the contract's Statement of Work provided, in pertinent part: 

2.1 Delivery: The contractor shall deliver items in CLINs 

0001-0004 (170 cubic meters of38mm-50mm diameter 

gravel, 85 cubic meters of 100mm-152mm diameter 

gravel, one (1) Caterpillar CS-563D or Equal roller loaded 

on a transport vehicle, and two (2) Doosan DX 500E or 

equal in dump trucks) to Camp Carroll on 25 August 2017 

between 1300 and 1600, Korea Standard Time (KST). 

2.1.1 The Contractor is responsible for possessing Korean 

Identification, Vehicle Registration, Vehicle Insurance 

Certificate, and Driver Licenses for all vehicles and 

drivers. 

2.1.2 The Contracting Officer's Representative (COR) or 

USAG-Daegu representative will escort the vehicle [sic] to 

a designated staging area. The vehicles will be parked in 

the staging area until directed for movement by the COR. 

2.2 Drivers shall remain overnight at Camp Carroll and 

will be transported by the U.S. Government to a facility for 

overnight shelter and accommodations. 

2 
(Id.) 

5. Section 2.3 of the Statement of Work provided: 

2.3 Delivery to Construction Site: On 26 August 2017, all 

drivers shall be prepared to be transported to the vehicle 

staging point and prepared for movement no later than 

0600. The Contractor shall be prepared to drive as part of 

a military convoy to the construction site, offload material, 

and re-stage for departure. No vehicle will be released 

from the construction site prior to the direction of the 

COR. The Contractor shall be prepared to maintain 

operations and readiness until operations have been 

completed (approximately 1700hrs). Once escorted from 

the site, contracted drivers may proceed at their discretion 

directly to contractor facilities. 

2.3 .1 Vehicles transporting rollers required under CLIN 

0003 and 0004 shall be capable of offloading equipment by 

a driver-on/ drive-off method. 

6. The contract included FAR 52.208-4 VEHICLE LEASE PAYMENTS 

(APR 1984 ), which provided: 

(a) Upon the submission of proper invoices or vouchers, 

the Government shall pay rent for each vehicle at the 

rate(s) specified in this contract. 

(b) Rent shall accrue from the beginning of this contract, or 

from the date each vehicle is delivered to the Government, 

whichever is later, and shall continue until the expiration 

of the contract term or the termination of this contract. 

However, rent shall accrue only for the period that each 

vehicle is in the possession of the Government. 

( c) Rent shall not accrue for any vehicle that the 

Contracting Officer determines does not comply with the 

Condition of Leased Vehicles clause of this contract or 

otherwise does not comply with the requirements of this 

contract, until the vehicle is replaced or the defects are 

corrected. 

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( d) Rent shall not accrue for any vehicle during any period 

when the vehicle is unavailable or unusable as a result of 

the Contractor's failure to render services for the operation 

and maintenance of the vehicle as prescribed by this 

contract. 

( e) Rent stated in monthly terms shall be prorated on the 

basis of 1130th of the monthly rate for each day the vehicle 

is in the Government's possession. If this contract 

contains a mileage provision, the Government shall pay 

rent as provided in the Schedule. 

(R4, tab 1 at 15) 

7. Upon completion of its use by the government, the contractor was obligated 

to pick up the leased equipment: 

VEHICLES TRANSPORTING/DELIVERING ROLLERS 

REQUIRED UNDER CLIN 0003 AND CLIN 0004 

SHALL BE CAP ABLE OF OFFLOADING EQUIPMENT 

BY A DRIVE-ON/DRIVE-OFF METHOD. A JOINT 

INSPECTION WILL BE CONDUCTED ANNOTATING 

ANY DEFICIENCIES AND OVERALL 

SERVICEABILITY PRIOR TO ACCEPTANCE BY THE 

GOVERNMENT. UPON COMPLETION OF USE, THE 

CONTRACTOR WILL BE CONTACTED AND 

COORDINATION WILL BE MADE WITH THE COR 

FOR EQUIPMENT PICKUP. PRIOR TO PICKUP, A 

JOINT-INSPECTION WILL BE CONDUCTED 

ANNOTATING ANY DEFICIENCIES AND 

OVERALL SERVICEABILITY PRIOR TO TRANSFER 

TO THE CONTRACTOR. 

(R4, tab 1 at 4-5) (Emphasis added) 

8. The contract included FAR 52.212-4 CONTRACT TERMS AND 

CONDITIONS-COMMERCIAL ITEMS (JAN 2017). Section (c), entitled, 

"Changes," dictates that "[c]hanges in the terms and conditions of this contract may be 

made only by written agreement of the parties." (R4, tab 1 at 16) 

9. The contract incorporated by reference DFARS 252.201-7000 

CONTRACTING OFFICER'S REPRESENTATIVE (DEC 1991) (R4, tab 1 at 14). 

DFARS 252.201-7000(b) states, in pertinent part, "[t]he COR is not authorized to 

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make any commitments or changes that will affect price, quality, quantity, delivery, or 

any other term or condition of the contract." 48 C.F.R. § 252.201-7000(b). 

10. The post award conference notes dated August 24, 2017, state: 

1. GENERAL: The function and authority of the 

Government personnel: 

a. The Contracting Officer (CO) is the ONLY person 

authorized to modify the contract terms or take any action 

to enter into a change or contractual commitment on behalf 

of the Government. 

b. The Contracting Officer's Representative (COR), whose 

authority may not be redelegated, is usually limited to 

monitoring and surveillance of the contractor's 

performance. 

(R4, tab 2 at 2) The COR was identified as MAJ Mitch Taylor (id). 

Contract Performance 

11. Delivery of the gravel and leased equipment initially was scheduled for 

August 25, 2017 (R4, tab 2 at 2). 

12. On August 31, 2017, the government issued Modification No. POOOOl, 

changing the delivery date of the contract items to some unspecified future date, and 

decreasing the amount of gravel specified in CLIN 0001 from 170 cubic meters to 112 

and CLIN 0002 from 85 cubic meters to 64 (R4, tab 3 at 2, 8). The modification also 

made changes to the delivery and staging of the equipment, as follows: 

2.1 Delivery: The contractor shall make multiple 

deliveries as part of military convoys, based on the 

contract delivery schedule. 

2.1.1 Delivery 1 (August 28-29 2017) 112 cubic meters of 

38mm-50mm diameter gravel (7 dump trucks), 64 cubic 

meters of 100mm-152mm diameter gravel ( 4 dump 

trucks), one (1) Caterpillar CS-563D (or Equal)(l truck), 

two (2) Doosan DX 500E (or equal) hand rollers (one 

truck) shall be delivered to the staging area at Camp 

Carroll. Notification will be given by the Government no 

later than 9:00am the day prior to the required staging. 

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No more that thirteen ( 13) trucks are authorized for 

Delivery 1. 

2.1.1.1 The Contracting Officer's Representative (COR) or 

USAG-Daegu representative will coordinate to meet the 

contractor at Gate # 1, Camp Carroll and escort the vehicles 

to the designated staging area. The vehicles will be parked 

in the staging area until directed for further movement by 

the COR. 

2.1.1.2 Drivers shall remain overnight at Camp Carroll and 

will be transported by the U.S. Government to a facility for 

overnight shelter and accommodations .... 

2.1.1.6 Delivery to Construction Site: The Government 

will provide transportation to contracted drivers from their 

overnight shelter to the vehicle staging point at a time 

coordinated as directed by the COR. Drivers will be 

prepared for movement within 1 hour of arrival at vehicle 

staging point. 

2.1.1.7 The Contractor shall be prepared to drive as part of 

a military convoy to the construction site, offload material, 

and re-stage for departure. 

2.1.1.8 No vehicle will be released from the construction 

site without direction and approval from the COR. 

2.1.1. 9 The Contractor shall be prepared to maintain 

operations and readiness until operations have been 

completed. 

2.1.1.10 Contracted drivers may proceed at their discretion 

to contractor facilities once released from the construction 

site. 

2.1.1.11 Vehicles transporting rollers required under 

CLIN 0003 and 0004 shall be capable of offloading 

equipment by a driver-on/drive-off method. No ramps or 

material handling equipment will be provided by the 

government to facilitate loading/unloading. 

(R4, tab 3 at 9-10) 

6 
13. The contractor delivered the contractually-required gravel and equipment 

on September 7, 2017 (R4, tab 45 at 1; app. supp. R4, tabs 1-3). 

Equipment Retrieval 

14. By email dated October 2, 2017, MAJ Taylor informed KECC: 

We are complete with the use of all rental rollers for the 

subject contract at Seongju. I have verified that all keys 

are in the rented equipment and it is ready to be picked up. 

You can pick it up at your convenience. I will be on the 

site tomorrow from 0900-1100 if you need to meet with 

me. 

(R4, tab 7 at 2) 

15. Appellant stated that on October 3, 2017, it received MAJ Taylor's email 

dated October 2, 2017, but did not respond until October 10, 2017, when KECC 

informed MAJ Taylor it would pick up the equipment on October 11, 2017 (R4, tab 8 

at 3). 

16. On October 11, 2017, KECC attempted to recover the equipment but was 

prevented from gaining access to the installation by local national Korean protesters 

(R4, tab 8 at 3-4). By email dated October 12, 2017, KECC informed the contracting 

officer that it had incurred additional costs in attempting to retrieve equipment on 

October 11, 2017 (id.). KECC stated, in pertinent part: 

The police came after requesting for support to COR but 

they did not have any information. Called COR again to 

ask what exactly is happening and found out that there was 

some mis-understanding between the government and 

police. Also COR has informed today's pick up work is 

impossible as there is not enough manpower to cover and 

escort us. 

In addition, COR acknowledged about the conflict and 

promised the government is responsible for any additional 

cost such as equipment expense and rental fee of pick up 

vehicle. 

(Id. at 3) (Syntax in original) 

7 
17. By email dated October 13, 2018, the contracting officer informed 

MAJ Taylor: 

(Id. at 2) 

Please see email below. The Contractor will be submitting 

another claim, which we will take a look at when it comes 

in. Can you please provide an update of when the pick-up 

will be scheduled? I want to ensure the equipment is 

picked up before we modify the award to pay for our 

claims. 

Additionally, although I do not know if what the 

Contractor is saying true [sic], but please be careful when 

making any statements along the lines of, "COR 

acknowledged about the conflict and promised the 

government is responsible for any additional cost such as 

equipment expense and rental fee of pick up vehicle." 

18. By email dated October 17, 2017, the contracting officer asked the COR 

whether there was a plan in place for the contractor to pick up the equipment (id at 1). 

By email dated October 20, 2017, the COR responded stating: 

(Id.) 

stated: 

We have submitted the following to the ROKA 

[Republic of Korea Army]/KNP [Korea National Police]: 

The preferred date is 2 Nov 2017. The alternate days are 

31 Oct 2017 and 3 Nov 2017. 

I anticipate an answer Monday. 

19. By email to the contracting officer dated November 15, 2017, KECC 

We requert [sic] for additional cost due to sudden 

cancelation [sic] at 25 Aug. 2017 and delibery [sic] 

pick-up failure 11 Oct. 2017 as follows. 

1. Sudden cancelation [sic] at 25 Aug. 2017 

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We should pay sudden cancelation [sic] fee 5,100,000KW 

(Dump Truck 15ea x 300,000 KW/ea) which was 

negotiated and final price. 

2. Delivery pick up failure at 11 Oct. 2017 

We should pay additional cargo crane and dump truck 

expense 600,000KW ( cargo crane 300,000KW + dump 

truck 300,000KW) which was negotiated and final price. 

* As the leased vehicles (Catterpiller [sic] CS-562D and 

Hand durm [sic] roller) are now [sic] could not carry out of 

the base, So it is needed to be modified additional cost at 

the end time of leasing. 

(R4, tab 11 at 3-4) 

20. By email to KECC dated November 16, 2017, the contract specialist stated: 

(Id. at 3) 

Understood, we are working with the requiring activity on 

finding a solution to removing the equipment from the site. 

Once that has been resolved, we will work with you on the 

final modification for the actual days of lease. 

21. By emails dated November 16, 2017, and November 21, 2017, the 

contracting officer asked the COR for updates on removal of the leased equipment (id 

at 1-3). By email dated November 21, 2017, the COR responded to the contracting 

officer: 

(Id. at 1) 

I am waiting on a report from the actions on today's 

mission to the site. Last week, they tried to get the 

equipment started, but weren't having any luck. 

22. By email dated November 21, 2017, the contracting officer informed the 

COR: 

Please keep our office updated and in the loop as each 

mission affects the contract. To clarify - are you talking 

9 
about not being able to start the leased equipment? 

(Id at 1) 

23. By email to the government dated December 6, 2017, KECC stated: 

This contract is being delayed for almost 2 months and is 

getting really frustrating for us as we cannot do anything 

about it. It would be great, If [sic] you could give us a 

schedule of return date within this week. Otherwise there 

will be an extra charge for another month of rental. Please 

consider our situation and advise us. 

(App. supp. R4, tab 4 at 1) 

(Id.) 

24. By email dated December 6, 2019, the government responded: 

First, thank you very much for your cooperation, patience, 

and understanding. MAJ_ Taylor's office is working with 

his higher headquarters and with the ROK Government to 

set up a schedule so that we can return your equipment to 

you. Returning your equipment to you is very important to 

our Team as well as MAJ Taylor's team. Additionally, we 

will be meeting next Tuesday to figure out how we to [sic] 

expeditiously resolve the current situation we are in now. 

We will provide you more information next week after our 

meeting. 

25. By email dated December 12, 2017, KECC stated: 

As per contract, it has been almost two months since 

expiry [sic] date of the contract. We want to know the 

exact date of return of equipment (2 x 1 ton roller, 1 x 5ton 

roller). For the return of two 1 ton rollers, we require a 

cargo crane to pick up the rollers. If you would like to 

continue rental of 5 ton roller, it needs to go through 

KOREA ENG directly. Also it would be great if there is 

co-operation by police when returning the equipment as we 

failed to pass the protesters last time. 

(R4, tab 16) 

10 
26. By email dated December 12, 2017, the COR suggested KECC work 

directly with MAJ Benny Lee, 35th ADA Brigade Executive Officer, to gain access to 

the installation and arrange for removal of the equipment (R4, tabs 17, 41 at 8). 

27. By email dated December 13, 2017, the COR informed KECC: 

We do NOT wish to rent any equipment. We would like to 

get you out on the site to pick up the equipment as soon as 

possible. You will not need a crane to lift the hand rollers 

into the bongo truck - we can provide a lift capability. 

Please review my email from this morning and let me 

know when you can get to the site to pick up the hand 

rollers and drive the large roller off the site. 

(R4, tab 22 at 7-8) 

28. During the period from December 14, 2017, to December 21, 2017, the 

COR and KECC discussed various options to reduce the number of contractor vehicles 

and employees needed to remove equipment from the site, and discussed KECC 

possibly removing the equipment on December 21, 2017 (R4, tab 22 at 3-7). That 

removal date was cancelled because the South Korea Ministry of Defense was "having 

more problems with the protesters" (R4, tab 22 at 2). 

29. By email dated December 28, 2017, the contracting officer asked KECC 

whether it had retrieved its equipment from the installation (R4, tab 20 at 1 ). By email 

that same date, KECC responded: 

(Id.) 

We are still waiting for your response to retrieve the 

equipments [sic] back. I understand there is a conflict with 

the protesters currently but it has been almost 3 months 

since CCD. A few months ago, we tried to retrieve the 

equipments [sic] which advised by COR. But protesters 

stopped us as there was no support from Korean police. 

Please inform us if there is a new plan or schedule. 

30. By email dated January 11, 2018, KECC requested "an extra amount of 

rental fees for 3 months" (R4, tab 23 at 1 ). 

11 
31. By email dated January 16, 2018, MAJ Camille Morgan, contracting 

officer, informed KECC: 

You must retrieve the following equipment from the site 

immediately. The method of recovery, should be the same 

as delivery the (Drive - on/Drive - Off Method). The U.S 

government is not hindering your company from retrieving 

the equipment at this time. I need confirmation from you 

by Friday, 19 January 2018 on how you plan to accomplish 

this task. You have 1 week from Friday, 19 January 2018, 

to recover the following equipment. 

1) 1 x Each Vehicle Lease Caterpillar CS-563 

2) 2 x Each Vehicle Lease HAND DRUM ROLLER 

(R4, tab 24 at 2) 

32. By email dated January 16, 2018, the COR informed KECC: 

I would recommend you call the KNP and file a police 

report because you cannot get your equipment out. The 

issue is not with the US Army or the Government but with 

Korean nationals that are blocking the road. 

(R4, tab 24 at 1) 

(Id.) 

33. By email dated January 16, 2018, KECC responded: 

In order to retrieve the equipment, we would need 2 

vehicles (Trailer & 5ton cargo crane) with 3 people 

including 2 drivers and myself. This plan is exactly the 

same as before (Delivery plan). However, we need a clear 

answer for whether you can provide support with Korean 

police to protect us from protesters. I have actually called 

Korean national police (Seongju Police Dept. 054-930-

0258) to ask for support but they advised U.S government 

need to contact them and arrange a plan. Please arrange 

and make a plan with Korean national police and inform us 

when to pick up the equipment with exact time (Day and 

time frame). 

12 
34. By email dated January 19, 2018, the contracting officer asked KECC 

"have you established a new date to retire [sic] your rental equipment form [sic] the 

site? Yes or no?" (R4, tab 25 at 2) 

35. By email dated January 22, 2018, KECC informed the government: 

(Id. at 1) 

No, we have not established a new date as we cannot set up 

a plan with Korean national police. 

Please contact Korean national police and inform us when 

to pick up the equipment with the exact time. 

36. By email dated March 3, 2018, the government informed appellant: 

We agree that the option to procure the equipment is not 

the preferred method of ending this procurement; however, 

the daily cost of this procurement is unsustainable. The 

COR has stated that the site conditions are not 

compromised to such an extent that prevent KECC site 

access to recover the equipment. KECC has made no 

attempt to since October 11, 201 7 to recover this 

equipment which has been on site at a claimed rate of 

KR W 1,000,000 per day. 

Although movement "on government facilities shall be 

coordinated through the COR and conducted under escort" 

per para 2. 1.1.12 of the SOW. Paragraph 2.1.3 

(Equipment Recovery) does not require the government of 

the United States nor the Republic of Korea to provide an 

escort onto or off of the installation. Pursuant to 

52.212-4(a) "the Government may seek an equitable price 

reduction or adequate consideration for acceptance of 

nonconforming supplies or services." As the equipment in 

CLIN 0003 has been non-functional since November, the 

government, subject to mechanical inspection, may 

determine that the equipment is non-functional due to a 

latent defect of the electrical system and request and [sic] 

equitable adjustment. This is further supported by the 

CLIN text "THE CONTRACTOR SHALL WARRANTY 

AND BE RESPONSIBLE FOR ALL NORMAL 

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MAINTENANCE AND SERVICING OF EQUIPMENT 

FOR THE DURATION OF THE LEASE." 

You must coordinate with the COR (lLT Neky ... ), to 

arrange for access to the site at the earliest possible 

convenience. The government (US/ROK) will not provide 

additional security services as none were stipulated in the 

purchase order and assets are not available to provide such 

service. 

As the Contracting Officer for this requirement; I strongly 

urge you to retrieve this equipment immediately. 

(R4, tab 28 at 1) (Syntax in original)* 

3 7. By email dated March 6, 2018, the government informed appellant: 

You missed yesterday's suspense of 5 Mar 2018, to 

provide me the Contracting Officer a date and time to pick 

your rental equipment from the site. This is my second 

attempt to confirm a retrieval date from your company. I 

have included our legal offices in this e-mail traffic to 

prove that the government has requested that YOU the 

contractor, establish a new pick up date of the Rental 

Equipment for subject contract. 

You must provide a date NL T Weds, 7 Mar 2018 to 

retrieve your rental equipment from the site. 

(R4, tab 29 at 4) 

38. On April 25, 2018, appellant's recovery vehicles joined an Army convoy 

entering the site as part of a convoy named "Operation Penny Packer" and KECC 

retrieved its equipment from the site (R4, tabs 36, 39 at 3). 

* In February 2018, the government considered purchasing the equipment to minimize 

"any further issues with this purchase order" (R4, tab 28 at 4). However, 

appellant informed the government that the equipment owners were not 

interested in selling the equipment (R4, tab 28 at 2). 

14 
Contractor Claim and Final Decision 

39. On May 11, 2018, KECC submitted a breach of contract claim seeking costs 

incurred (1) on August 25, 2017, when the government cancelled the scheduled 

delivery, (2) on October 11, 2017, when KECC was unable to retrieve the equipment 

from the installation, and (3) for alleged extension of the equipment lease from the end 

of the lease period until the date it was retrieved from the installation on April 25, 2018 

(R4, tab 39 at 2-5). 

40. On June 22, 2018, the contracting officer issued a final decision sustaining 

appellant's request for costs incurred on August 25, 2017, and denying appellant's 

request for costs incurred on October 11, 2017, and costs sought for lease of the 

equipment from October 7, 2017, until April 25, 2018 (R4, tab 40). 

DECISION 

Appellant seeks compensation for extended equipment lease and costs incurred 

in attempting to retrieve the equipment on October 11, 2017 (compl. 115-6, 35). As 

the party asserting a claim for breach of contract, appellant has the burden of proof. 

Tecom, Inc., ASBCA No. 51880, 00-2 BCA 130,944 at 152,738 (citing Sphinx Int'/, 

Inc., ASBCA No. 38784, 90-3 BCA 122,952 at 115,222). As noted above, appellant 

did not file a brief with the Board in support of its Rule 11 submission on the record. 

"This, of course, does not relieve the appellant from the necessity of establishing the 

facts to support its assertions." C. Leonard Willis, ASBCA No. 25271, 81-1 BCA 

114,948 at 73,987 n.l. 

Appellant's complaint offers insufficient legal support for its proposition that 

the government was at fault for the contractor's failure to timely remove the leased 

equipment after expiration of the lease. The contract put the onus on KECC to pick up 

its equipment at the end of the lease period (finding 7). Appellant admits that the lease 

period ended on October 6, 2017 (compl. 125.b). Appellant likewise admits that the 

government informed appellant it was finished with the equipment and instructed 

appellant to pick up the equipment from the installation (compl. 1111-12, 15; R4, 

tab 8 at 3). 

The record establishes that appellant was unable to retrieve its equipment, not 

because of government action or inaction, but because local national Korean protesters 

blocked access to the installation (findings 16, 25, 28-29, 32-33). It is well established 

that "absent fault or negligence or an unqualified warranty on the part of its 

representatives, the Government is not liable for damages resulting from the action of 

third parties." Oman-Fischbach International (JV) v. Pirie, 276 F .3d 1380, 1385 (Fed. 

Cir. 2002) (quoting Dale Constr. Co. v. United States, 168 Ct. Cl. 692,698 (1964)). 

15 
Appellant cites no contractual provision wherein the government assumed the 

risk of increased costs resulting from the actions of third parties such as local national 

Korean protesters. The fact that, at various points in time, protesters inhibited access 

to the installation did not somehow create a contractual obligation on the government 

to remove appellant's equipment and deliver it to KECC. Moreover, the record 

establishes that the government made efforts to assist KECC in removing the 

equipment from the installation and, ultimately, arranged for KECC to remove the 

equipment as part of a government convoy (findings 18, 20, 24, 26-28, 38). 

Appellant quotes FAR 52.208-4(b ), set forth in the contract, which provides 

"rent shall accrue only for the period that each vehicle is in the possession of the 

Government" ( compl. ,r 8; R4, tab 1 at 15). This portion of the provision, alone, does 

not entitle KECC to additional lease payments for the equipment while it remained in 

the government's possession at the installation. Indeed, FAR 52.208-4(b) also 

provides that rent "shall continue until the expiration of the contract term or the 

termination of this contract." (R4, tab 1 at 15) As noted above, appellant admits that 

the lease period ended on October 6, 2017 ( comp 1. ,r 25 .b ). Appellant's failure to 

remove equipment from the installation as required by the contract does not create a 

breach of the contract by the government or an obligation for the government to pay 

appellant additional amounts for extended lease of the equipment. See generally, 

Dynamic Research Corp., ASBCA No. 57830, 13-1 BCA ,r 35,273 at 173,149 ("A 

contractor cannot create an obligation on the part of the Government to reimburse it 

for a cost overrun by voluntarily continuing performance and incurring costs after the 

cost limit has been reached") ( quoting North American Rockwell Corp., ASBCA 

No. 14329, 72-1 BCA ,r 9207 at 42,722 (construing limitation of funds clause)). 

Appellant correctly notes that the contract provided for use of a convoy to bring 

equipment onto the post (compl. ,r 13.a). The contract, however, does not provide for 

use of a convoy to remove the equipment (findings 5, 12). As explained in the 

declaration of MAJ Morgan, "South Korean contractors and civilians could freely 

come and go through the gate without any escort or assistance, which is in contrast to 

U.S. Personnel, who had to use rotary wing transport to enter and exit the installation" 

(R4, tab 45 at 2). The fact that the government ultimately arranged for appellant to 

remove the equipment from the site as part of a convoy did not somehow obligate the 

government to have done so, or make the government liable for increased costs 

because it did not provide a convoy at any time prior to April 2018. 

In essence, appellant alleges a constructive change, although it does not invoke 

that terminology. As we explained recently, "[a] constructive change occurs when a 

contractor performs work beyond the contract requirements, without a formal order 

under the Changes clause, due either to an express or implied informal order from an 

authorized government official or to government fault." Optimization Consulting, 

Inc., ASBCA No. 58752, 19-1 BCA ,r 37,426 at 181,905 (quoting Parwan Group Co., 

16 
ASBCA No. 60657, 18-1BCA137,082 at 180,498). Appellant's inability to remove 

its equipment from the site was not the fault of the United States Government, but was 

caused by the local national Korean protesters (findings 16, 25, 28-29, 32-33). 

In addition, the contract's Commercial Items Changes clause, FAR 52.212-4(c) 

required that changes in the terms and conditions of the contract be made by written 

agreement of the parties (finding 8). Appellant cites no formal order, or express or 

implied formal order, from an authorized government official agreeing either to extend 

lease payments or reimbursement of costs incurred on October 11, 2017. Moreover, as 

we noted recently, the constructive change doctrine does not apply to a Commercial 

Items contract because FAR 52.212-4( c) includes "no provision for unilateral action 

by the contracting officer." Tkacz Engineering, LCC, ASBCA No. 60358, 18-1 BCA 

136,940 at 179,962. 

As to appellant's claim for alleged costs incurred on October 11, 201 7, the 

record reflects that appellant was prevented from accessing the installation by local 

national Korean protesters, not the United States Government (finding 16). Appellant 

suggests, however, that the COR agreed the government would reimburse appellant for 

the costs it incurred that day (compl. 1 17.a). Although the record contains copies of 

emails indicating the government discussed appellant's demand for payment of its 

costs (see findings 16-17, 19-20), the record does not support a finding that the COR, 

or anyone with actual authority to bind the government, made such an agreement. 

Indeed, the contracting officer's representative - who allegedly offered to reimburse 

appellant for its costs - lacked authority to make such an agreement or commit the 

government to the payment of funds (finding 9). As such, even assuming the 

constructive change doctrine applied to this appeal, appellant has not established it is 

entitled to reimbursement by the government for costs incurred on October 11, 2017. 

17 
CONCLUSION 

For the reasons stated above, the appeal is denied. 

Dated: February 24, 2020 

I concur 

RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

DAVID B. STINSON 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

OWEN C. WILSON 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA No. 61724, Appeal of Korea 

Engineering Consultants Corporation, rendered in conformance with the Board's 

Charter. 

Dated: 

18 

PAULLA K. GATES-LEWIS 

Recorder, Armed Services 

Board of Contract Appeals