ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of-- ) ) Korea Engineering Consultants Corporation ) ) UnderContractNo. W91QVN-17-P-0099 ) APPEARANCE FORTHEAPPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 61724

Mr. Byung Chan Park

Vice President ScottN. Flesch, Esq.

Army ChiefTrial Attorney MAJ Wayne T. Branom III, JA

Trial Attorney OPINION BYADMINISTRATIVE 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 ofcontract in the amount ofKRW 301,598,400 (R4, tabs 39-40). We havejurisdictionpursuant to the Contract Disputes Act of 1978, 41 U.S.C. §§ 7101-7109. Theparties agreed to submitthis appeal for a decision on the record without a hearingpursuant to BoardRule 11. The government submitted an initial briefand appellant declined the opportunity to submit any brief. Forthe reasons stated below, we deny KECC's appeal. FINDINGS OFFACT 1. On August 24, 2017, the 411th Contracting Support Brigade, Korea, entered into ContractNo. 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 ofa Caterpillar CS-563D roller, or equal, loaded on a transport vehicle (CLIN 0003); and lease of2 Doosan DX500Ehand 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 1at 4-5). 

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# l 3. Section 1ofthe contract's Statement ofWorkprovided: Scope ofWork: 

### This SOW describes the requirements for the delivery ofgravel and construction equipment in support of35thAir Defense Artillery and 8th Army Engineers construction efforts in the vicinity of USAG-Daegu. The Contractor shall deliver gravel conforming to the characteristics ofthe CLIN 0001 and 0002 narratives as directed by the Contracting Officers [sic] Representative (COR). The Contractor shall deliver construction equipment conforming to the characteristics ofthe CLIN 0003 and 0004 narratives as directed bythe CORin accordance with this SOW and delivery schedule. (R4, tab 1at 11)

(Id.) 

### 4. Section 2 ofthe contract's Statement ofWorkprovided, in pertinentpart: 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 orEqual 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 beparked in the staging area until directed for movement by the COR. 2.2 Drivers shall remain overnight at Camp Carroll and will betransported by the U.S. Government to a facility for overnight shelter and accommodations.

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### 5. Section 2.3 ofthe Statement ofWorkprovided: 2.3 Delivery to Construction Site: On 26 August 2017, all drivers shall be preparedto 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 ofthe 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 ofoffloading equipment by a driver-on/drive-offmethod.

6. The contract included FAR 52.208-4 VEHICLE LEASE PAYMENTS (APR 1984), which provided: (a) Uponthe submission ofproper 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 ofthis contract, or from the date each vehicle is deliveredto the Government, whichever is later, and shall continue until the expiration ofthe contractterm or the termination ofthis contract. However, rent shall accrue only for the period that each vehicle is in the possession ofthe Government. ( c) Rent shall not accrue for any vehicle that the Contracting Officer determines does not comply withthe Condition ofLeased Vehicles clause ofthis contract or otherwise does not comply withthe requirements ofthis contract, until the vehicle is replaced orthe defects are corrected.

3(d) Rent shall not accrue for any vehicle during any period when the vehicle is unavailable orunusable as a result of the Contractor's failure to render services for the operation and maintenance ofthe vehicle as prescribed by this contract. (e) Rent stated in monthly terms shall be prorated onthe basis of 1130th ofthe monthly rate for each day the vehicle is in the Government's possession. Ifthis contract contains a mileage provision, the Government shall pay rent as provided in the Schedule. (R4, tab 1 at 15) 7. Upon completion ofits use by the government, the contractor was obligated topickup the leased equipment: VEHICLES TRANSPORTING/DELIVERING ROLLERS REQUIRED UNDER CLIN 0003 AND CLIN 0004 SHALL BE CAPABLE OF OFFLOADING EQUIPMENT BYA DRIVE-ON/DRIVE-OFF METHOD. A JOINT INSPECTION WILL BE CONDUCTED ANNOTATING ANYDEFICIENCIES AND OVERALL SERVICEABILITYPRIORTO ACCEPTANCE BY THE GOVERNMENT. UPON COMPLETIONOF USE, THE CONTRACTOR WILL BE CONTACTEDAND COORDINATION WILL BEMADE WITH THE COR FOR EQUIPMENTPICKUP. PRIORTO 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 contractincluded FAR 52.212-4 CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS (JAN 2017). Section (c), entitled, "Changes," dictates that "[c]hanges inthe terms and conditions ofthis contract may be made only by written agreement ofthe parties." (R4, tab 1 at 16) 9. The contract incorporated byreference DFARS 252.201-7000 CONTRACTING OFFICER'S REPRESENTATIVE (DEC 1991) (R4, tab 1 at 14). DFARS 252.201-7000(b) states, in pertinentpart, "[t]he CORis not authorizedto

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# Imake any commitments or changes that will affectprice, quality, quantity, delivery, or any otherterm or condition ofthe 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 ofthe Governmentpersonnel:

a. The Contracting Officer (CO) is the ONLYperson authorized to modify the contractterms ortake any action to enter into a change or contractual commitment onbehalf ofthe Government. b. The Contracting Officer's Representative (COR), whose authority may notbe redelegated, is usually limited to monitoring and surveillance ofthe contractor's performance. (R4, tab 2 at 2) The CORwas identified as MAJ Mitch Taylor (id). ContractPerformance 11. Delivery ofthe gravel and leased equipment initially was scheduled for August 25, 2017 (R4, tab 2 at 2). 12. OnAugust 31, 2017, the government issued ModificationNo. 

### POOOOl, changing the delivery date ofthe contract items to some unspecified future date, and decreasing the amount ofgravel 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 ofthe equipment, as follows: 2.1 Delivery: The contractor shall make multiple deliveries as part ofmilitary convoys, based onthe 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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# I INo more thatthirteen (13) trucks are authorized for Delivery 1. 2.1.1.1 The Contracting Officer's Representative (COR) or USAG-Daegu representative will coordinate to meetthe contractor at Gate #1, Camp Carroll and escort the vehicles to the designated staging area. The vehicles will beparked inthe 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 bythe U.S. Governmentto a facility for overnight shelter and accommodations

.... 2.1.1.6 Delivery to Construction Site: The Government will provide transportationto 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 movementwithin 1hour ofarrival atvehicle stagingpoint. 2.1.1.7 The Contractor shall be preparedto 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 preparedto 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 transportingrollers required under CLIN 0003 and 0004 shall be capable ofoffloading equipment by a driver-on/drive-offmethod. No ramps or material handling equipmentwill be providedbythe government to facilitate loading/unloading. (R4, tab 3 at 9-10)

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# ! I13. 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 withthe use ofall 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 pickedup. You canpick it up at your convenience. I will be onthe site tomorrow from 0900-1100 ifyouneedto meetwith me. (R4, tab 7 at 2) 15. Appellant statedthat 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 wouldpick up the equipment on October 11, 2017 (R4, tab 8 at 3). 16. On October 11, 2017, KECC attempted to recoverthe equipment butwas prevented from gaining access to the installationby local national Koreanprotesters (R4, tab 8 at 3-4). By email dated October 12, 2017, KECC informed the contracting officerthat it had incurred additional costs in attempting to retrieve equipment on October 11, 2017 (id.). KECC stated, in pertinentpart: The police came after requesting for supportto CORbut they did not have any information. Called COR againto ask what exactly is happening and found outthatthere was some mis-understandingbetweenthe government and police. Also CORhas informed today's pickup work is impossible as there is not enough manpowerto cover and escort us. In addition, COR acknowledged aboutthe conflict and promisedthe government is responsible for any additional cost such as equipment expense andrental fee ofpickup vehicle. (Id. at 3) (Syntax in original)

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

### Taylor:

(Id. 

### at 2) Please see email below. The Contractorwill be submitting another claim, which we will take a look atwhen it comes in. Canyouplease provide an update ofwhen the pick-up will be scheduled? I 

### wantto ensure the equipment is picked up before we modify the award to pay for our claims. Additionally, although I 

### do not know ifwhat the Contractor is sayingtrue [sic], butpleasebe 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 ofpick 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 pickup the equipment (id 

### at 1). By email dated October20, 2017, the CORresponded stating:

(Id.)



### stated: We have submitted the following to the ROKA [Republic ofKorea Army]/KNP [KoreaNational Police]: The preferred date is 2 Nov 2017. The alternate days are 31 Oct 2017 and 3Nov 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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I 'We should pay sudden cancelation [sic] fee 5,100,000KW (Dump Truck 15eax 300,000 KW/ea) which was negotiated and final price. 2. Delivery pickup 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 neededto be modified additional cost at the end time ofleasing. (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 beenresolved, we will workwith you onthe final modification for the actual days oflease.

21. By emails dated November 16, 2017, and November 21, 2017, the contracting officer asked the CORfor updates onremoval ofthe leased equipment (id at 1-3). By email dated November 21, 2017, the CORresponded to the contracting officer:

(Id. at 1) I am waiting on a report from the actions ontoday's missionto the site. Last week, they tried to get the equipment started, butweren'thaving any luck.

22. By email dated November 21, 2017, the contracting officer informedthe COR: Please keep our office updated and in the loop as each mission affects the contract. To clarify

- are you talking

9aboutnotbeing 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. Itwouldbe great, If[sic] you could give us a schedule ofreturn date within this week. Otherwise there will be an extra charge for another month ofrental. Please consider our situation and advise us. (App. supp. R4, tab 4 at 1)

(Id.) 24. By email dated December

### 6, 2019, the governmentresponded: First, thankyouvery much for your cooperation, patience, and understanding. 

### MAJ_ Taylor's office is working with his higher headquarters and with the ROK Governmentto setup a schedule so thatwe can return your equipmentto you. Returning your equipmentto you is very important to ourTeam as well as 

### MAJ Taylor's team. Additionally, we will be meeting next Tuesday to figure outhow we to [sic] expeditiouslyresolve the current situation we are in now. We will provide you more information nextweek after our meeting.

25. By email dated December 12, 2017, KECC stated: As percontract, ithas been almost two months since expiry [sic] date ofthe contract. We wantto know the exact date ofreturn ofequipment (2 x 1 tonroller, 1 x 5ton roller). Forthe return oftwo 1tonrollers, we require a cargo crane to pickup the rollers. 

### Ifyouwould like to continuerental of5 ton roller, it needs to go through KOREAENG directly. Also itwouldbe great ifthere is co-operation bypolice whenreturning the equipment as we failed topass the protesters last time. (R4, tab 16)

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### 26. Byemail dated December 12, 2017, the COR suggested KECC work directly with MAJ Benny Lee, 35th ADA BrigadeExecutive Officer, to gain access to the installation and arrange for removal ofthe equipment (R4, tabs 17, 41 at 8). 27. By email dated December 13, 2017, the CORinformed KECC: We do NOT wishto rent any equipment. We would like to get you out on the site to pickup the equipment as soon as possible. You will not need a crane to lift the hand rollers into the bongo truck

- we canprovide a lift 

### capability. Please review my email from this morning and let me know when you can get to the site to pickup the hand rollers and drive the large roller offthe 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 ofcontractorvehicles 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 ofDefense 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 ithad retrieved its equipment from the installation (R4, tab 20 at 1 ). By email that same date, KECC responded:

(Id.) 

### We are still waiting for yourresponse to retrieve the equipments [sic] back. I understandthere is a conflictwith 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. Butprotesters stopped us as there was no support from Korean police. Please inform us ifthere 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 ).

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### 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 ofrecovery, should be the same as delivery the (Drive

- on/Drive

- OffMethod). 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 1week 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 DRUMROLLER (R4, tab 24 at 2) 32. By email dated January 16, 2018, the CORinformed KECC: I would recommend you call the KNP and file a police report because you cannot get your equipment out. The issue is not withthe US Army or the Government butwith Korean nationals that are blocking the road. (R4, tab 24 at 1)

(Id.) 

### 33. By email dated January 16, 2018, KECC responded: In orderto 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 canprovide 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 butthey advised U.S government needto contactthem and arrange a plan. Please arrange and make a planwith Korean national police and inform us when to pick up the equipment with exacttime (Day and time frame).

1234. 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 aplan 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 optionto procure the equipment is not the preferred method ofending this procurement; however, the daily cost ofthis procurement is unsustainable. The CORhas statedthatthe site conditions are not compromisedto such an extentthatprevent KECC site access to recover the equipment. KECC has made no attemptto since October 11, 2017 to recoverthis equipment which has been on site at a claimedrate of KR W 1,000,000 per day. Although movement "on government facilities shall be coordinated through the CORand conducted under escort" perpara 2. 1.1.12 ofthe SOW. Paragraph 2.1.3 (EquipmentRecovery) does not require the government of the United States nor the Republic ofKorea to provide an escort onto or offofthe installation. Pursuant to 52.212-4(a) "the Governmentmay 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 thatthe equipment is non-functional due to a latent defect ofthe electrical system and request and [sic] equitable adjustment. This is further supported by the CLIN text "THE CONTRACTOR SHALL WARRANTY AND BERESPONSIBLE FORALL NORMAL

13MAINTENANCE AND SERVICING OF EQUIPMENT FORTHE DURATION OF THE LEASE." You must coordinate withthe COR (lLTNeky

... ), to arrange for access to the site at the earliestpossible convenience. The government (US/ROK) will notprovide additional security services as none were stipulatedin the purchase order and assets are not available to provide such service. As the Contracting Officer for this requirement; I strongly urge youto retrieve this equipment immediately. (R4, tab 28 at 1) (Syntax in original)* 37. By email dated March 6, 2018, the government informed appellant: You missed yesterday's suspense of5 Mar 2018, to provide me the Contracting Officer a date and time topick yourrental 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 thatthe governmenthas requested that YOUthe contractor, establish a newpickup date ofthe Rental Equipment for subject contract. You must provide a dateNL T Weds, 7 Mar 2018 to retrieve your rental equipment from the site. (R4, tab 29 at 4) 38. OnApril 25, 2018, appellant's recovery vehiclesjoined an Army convoy entering the site as part ofa convoy named "OperationPenny Packer" and KECC retrieved its equipment from the site (R4, tabs 36, 39 at 3).

* InFebruary 2018, the government consideredpurchasing the equipment to minimize "any further issues withthis purchase order" (R4, tab 28 at 4). However, appellant informedthe governmentthatthe equipment owners were not interested in selling the equipment (R4, tab 28 at 2).
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# IContractor Claim and Final Decision 39. OnMay 11, 2018, KECC submitted a breach ofcontract claim seeking costs incurred (1) on August 25, 2017, whenthe 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 ofthe equipment lease from the end ofthe lease period until the date itwas retrieved from the installation onApril 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 onAugust 25, 2017, and denying appellant's request for costs incurred on October 11, 2017, and costs sought for lease ofthe 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 ofcontract, appellant has the burden ofproof. 

### Tecom, Inc., ASBCANo. 51880, 00-2 BCA 130,944 at 152,738 (citing 

### SphinxInt'/, Inc., ASBCANo. 38784, 90-3 BCA 122,952 at 115,222). As noted above, appellant did not file a briefwiththe Boardin support ofits Rule 11 submission on the record. "This, ofcourse, does notrelieve the appellant from the necessity ofestablishing the facts to support its assertions." C. 

### Leonard Willis, ASBCANo. 25271, 81-1 BCA 114,948 at 73,987 n.l. Appellant's complaint offers insufficient legal support for its propositionthat the governmentwas at fault for the contractor's failure to timely remove the leased equipment after expiration ofthe lease. The contractput the onus on KECC to pick up its equipment atthe end ofthe lease period (finding 7). Appellant admits thatthe lease period ended on October 6, 2017 (compl. 125.b). Appellant likewise admits thatthe government informed appellant it was finished with the equipment and instructed appellant to pickup the equipment from the installation (compl. 

### 1111-12, 15; R4, tab 8 at 3). Therecord establishes that appellant was unable to retrieve its equipment, not because ofgovernment action or inaction, but because local national Koreanprotesters blocked access to the installation (findings 16, 25, 28-29, 32-33). It is well established that "absent fault ornegligence or an unqualified warranty on the part ofits 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. 

### UnitedStates, 168 Ct. Cl. 692,698 (1964)).

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# IAppellant cites no contractualprovision wherein the government assumed the risk ofincreased costs resulting from the actions ofthirdparties such as local national Koreanprotesters. The fact that, atvarious 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 ofa 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 periodthat each vehicle is in the possession ofthe Government" (compl. 

## ,r 8; R4, tab 1 at 15). This portion oftheprovision, alone, does not entitle KECC to additional lease payments for the equipment while itremained in the government'spossession at the installation. Indeed, FAR 52.208-4(b) also provides that rent "shall continue until the expiration ofthe contractterm orthe termination ofthis contract." (R4, tab 1 at 15) As noted above, appellant admits that the lease period ended on October 6, 2017 (comp

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## ,r 25 .b). Appellant's failure to remove equipment from the installation as required by the contract does not create a breach ofthe contract by the government or an obligation for the governmentto pay appellant additional amounts for extended lease ofthe equipment. See generally, DynamicResearch Corp., ASBCANo. 57830, 13-1 BCA

## ,r 35,273 at 173,149 ("A contractor cannot create an obligation onthe part ofthe Governmentto reimburse it for a cost overrun by voluntarily continuingperformance and incurring costs after the cost limit has been reached") (quotingNorthAmericanRockwell Corp., ASBCA No. 14329, 72-1 BCA

## ,r 9207 at 42,722 (construing limitation offunds clause)). Appellant correctly notes thatthe contractprovided for use ofa convoy to bring equipment onto the post (compl. 

## ,r 13.a). The contract, however, does notprovide for use ofa convoyto remove the equipment (findings 5, 12). As explained in the declaration ofMAJ Morgan, "SouthKorean contractors and civilians could freely come and go through the gate without any escort or assistance, which is in contrastto U.S. Personnel, who had to use rotary wingtransportto enter and exitthe installation" (R4, tab 45 at 2). The fact that the government ultimately arranged for appellant to remove the equipment from the site as part ofa convoy did not somehow obligate the governmentto have done so, or make the government liable for increased costs because itdid not provide a convoy at any time priorto April 2018. In essence, appellant alleges a constructive change, although it does not invoke thatterminology. As we explainedrecently, "[a] constructive change occurs when a contractorperforms workbeyondthe contract requirements, without a formal order underthe Changes clause, due either to an express or impliedinformal order from an authorized government official orto government fault." Optimization Consulting, Inc., ASBCANo. 58752, 19-1 BCA

## ,r 37,426 at 181,905 (quotingParwan Group Co.,

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### ASBCANo. 60657, 18-1BCA137,082 at 180,498). Appellant's inability to remove its equipment from the site was not the fault ofthe United States Government, butwas 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 ofthe contract be made by written agreement ofthe parties (finding 8). Appellant cites no formal order, or express or implied formal order, from an authorized government official agreeing eitherto extend lease payments or reimbursement ofcosts 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 "noprovision for unilateral action by the contracting officer." Tkacz Engineering, LCC, ASBCANo. 60358, 18-1 BCA 136,940 at 179,962. As to appellant's claim for alleged costs incurred on October 11, 2017, the record reflects that appellant was prevented from accessing the installation by local national Korean protesters, notthe 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). Althoughthe record contains copies of emails indicating the government discussed appellant's demand for payment ofits 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 offeredto reimburse appellant for its costs

- lacked authority to make such an agreement or committhe government to the payment offunds (finding 9). As such, even assuming the constructive change doctrine appliedto this appeal, appellanthas not established it is entitledto reimbursement by the government for costs incurred on October 11, 2017.

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ICONCLUSION For the reasons stated above, the appeal is denied. Dated: February 24, 2020

I concur

RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContractAppeals DAVID B. STINSON Administrative Judge Armed Services Board ofContractAppeals I concur

OWEN C. WILSON Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCANo. 61724, Appeal ofKorea Engineering Consultants Corporation, rendered in conformance with the Board's Charter. Dated:

18 PAULLA K. GATES-LEWIS Recorder, Armed Services Board ofContract Appeals 

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