ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeals of -- ) 

) 

ECC International Constructors, LLC ) 

) 

) 

Under Contract No. W912ER-10-C-0054 ) 

APPEARANCES FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA Nos. 59138, 59586 

59643,60284 

R. Dale Holmes, Esq. 

Amy M. Kirby, Esq. 

Cohen Seglias Pallas Greenhall & Furman PC 

Philadelphia, PA 

Michael P. Goodman, Esq. 

Engineer Chief Trial Attorney 

Sarah L. Hinkle, Esq. 

Matthew Tilghman, Esq. 

Engineer Trial Attorneys 

U.S. Army Engineer District, Middle East 

Winchester, VA 

OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE PARTIES' 

CROSS-MOTIONS FOR PARTIAL SUMMARY JUDGMENT 

The parties cross-move for summary judgment on whether, when a third party 

controlling a military base interfered with access to a compound that the government 

contracted appellant to build outside the base, an express contract warranty was breached, 

entitling appellant to recover for a constructive change to the contract. 

STATEMENT OF FACTS FOR PURPOSES OF THE MOTIONS 

The following is not in dispute. In 2010, the parties contracted for appellant to 

construct a compound outside the International Security Assistance Force (ISAF) military 

base in Afghanistan (app. mot. at 1-2, ,i 2, at 7, ,i 28; gov't resp. at 7, ,i 28). ISAF is not an 

agency of the United States Government (see app. mot. at 9, ,i 40; gov't resp. at 8, ,i 40). 

The contract provides that "[t]he Compound will be sited ... on a dedicated area located 

outside the perimeter fencing of the existing base" (app. mot. at 2, ,i 3 (§ 01 10 00.12 10, 

,i 1.2); gov't resp. at 1, ,i 3 ). A contract drawing also depicted that the project location 

would be outside the base security perimeter (see app. mot. at 2, ,i 4 (Drawing C-1 ); gov't 

resp. at 1, ,i 4). The contract provides that: 
The Contractor shall erect a temporary security fence around 

the construction limits of the project to establish a secure area. 

Access to this secure area shall be controlled by the 

Contractor's security forces.... The Contractor shall sequence 

construction to complete the majority of the work outside the 

base perimeter fence before cutting the base perimeter fences 

to install gates, connector road, and communications tie-in as 

shown and described in this contract. 

(App. mot. at 2-3, ,r,r 5-6 (§ 00800, ,r W); gov't resp. at 2, ,r,i 5-6, at 18, ,r 90, at 27) 

The contract also provides that: 

Prior to mobilization, the Contractor shall submit the proposed 

means of providing project security to prevent unauthorized 

access to equipment, facilities, materials and documents, and 

to safeguard them against sabotage, damage and theft. The 

Contractor shall be responsible for physical security of all 

materials, supplies, and equipment of every description, 

including property which may be Government-furnished or 

owned, for all areas occupied jointly by the Contractor and the 

Government, as well as for all work performed. 

(App. mot. at 8, ,r 33 (§ 01 31 13.12 10, ,r 1.5); gov't resp. at 8, ,r 33) Initially, appellant 

performed its work on the compound outside the base security fence, not subject to base 

security procedures, and provided the security measures that the contract required, 

including temporary fencing, necessary to secure the compound; however, in 2012, ISAF 

( 1) completed an expansion of the base security fence that encompassed the contract work 

site; and (2) exercised its authority to establish, monitor, and enforce all of the strict base 

security procedures at the contract work site (see app. mot. at 8-10, ,r 35 (,r,r 1.3.1.7, 1.5, 

2.7.1, Drawings C-2 - C-12), ,r,r 36, 43, 45; gov't resp. at 8-9, ,r,r 35-36, 43, 45). 

DECISION 

Relying upon the contract provisions and drawings referenced above, appellant 

requests summary judgment that the actions of the ISAF breached an express warranty that 

( 1) the contract work would take place outside the base perimeter; (2) appellant would 

control security and access to the contract work site; and (3) appellant would control when 

the contract work site would be "tied-in" to the base and be subject to base security 

procedures, constituting a constructive change to the contract (app. mot. at 16-20, 30). The 

government cross-moves for summary judgment that, among other things, "[t]he change to 

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the security posture of the ... Compound was not a constructive change to the Contract for 

which [appellant] is entitled to Compensation," which is a portion of the relief requested 

under ASBCA No. 59138, and in essence, Count I of appellant's complaint in ASBCA 

No. 59586 (gov't resp. at 43, ,i IV). Summary judgment shall be granted if the movant 

shows that there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law. Avant Assessment, LLC, ASBCA No. 58867, 15-1 BCA 

ii 36,067 at 176,127 (citing FED. R. CIV. P. 56(a)). 

A breach of a contract warranty may constitute a constructive change to a contract's 

terms. See Johnson & Son Erectors, ASBCA No. 24564, 81-1 BCA ,i 15,082 at 74,599; 

Mergentime Corp. v. Washington Metropolitan Area Transit Authority, No. CIV. 89-1055 

TFH, 2006 WL 416177, at *89 (D.D.C. Feb. 22, 2006) (unpublished opinion). However, 

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). Unless 

the parties in unmistakable terms agreed to shift the risk of increased costs due to acts by the 

ISAF, no liability on the part of the government attaches from such acts. See id. 

Upon review of the motions and supporting materials, we conclude that the parties did 

not agree in unmistakable terms that the government would assume the risk of increased 

costs resulting from acts of the ISAF that affected access to the work site prior to appellant 

cutting the base perimeter fences. Consequently, when the ISAF encompassed the contract 

work site within the base security fence, and enforced base security procedures at the 

contract work site, there was no breach of a contract warranty, and no constructive change to 

the contract, that might have entitled appellant to recovery. Cf Oman-Fischbach, 276 F .3d 

at 1384 (rejecting implied warranty claim where contractor did not identify any contractual 

provision under which the Navy assumed the risk of increased costs resulting from any acts 

of the Portuguese Armed Forces); !AP Worldwide Services, Inc., ASBCA No. 59397 et al .. 

17-1 BCA ,i 36. 7 63 at 179 .161 (rejecting appellant's contention that the government 

warranted its access to the border and breached that commitment when Pakistan closed the 

border): Contrack International, Inc., ASBCA No. 59917, 16-1 BCA ,i 36,532 at 177,955 

(denying summary judgment on implied warranty theory where appellant did not identify 

any contract language in which the government expressly warranted that the Afghan 

National Army would remove vehicles from work site). Appellant relies (app. mot. at 16: 

app. reply at 14) upon JE. McAmis, Inc., ASBCA No. 54455 et al., 10-2 BCA ,i 34,607 

at 170,570, where we held that an implied warranty that haul routes were available was 

breached when a county government imposed limitations upon that availability. However. 

we found JE. McAmis distinguishable from Oman-Fischbach. McAmis, I 0-2 BCA , 34,607 

at 170,570. By contrast, we find no meaningful distinction between this case and 

Oman-Fischbach, !AP Worldwide, or Contrack. Accordingly, we deny appellant's motion 

for partial summary judgment, and grant the government's request for partial summary 

judgment that '"[t]he change to the security posture of the.-.. Compound was not a constructive 

change to the Contract for which [appellant] is entitled to Compensation." 

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CONCLUSION 

Appellant's motion for partial summary judgment is denied; the government's 

cross-motion for partial summary judgment on the issue of entitlement with regard to 

ASBCA No. 59138 and Count I of ASBCA No. 59586 is granted to the extent set forth 

above. An order addressing further proceedings in these appeals will follow. 

Dated: January 24, 2019 

I concur 

RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

~M~ 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 Nos. 59138, 59586, 59643, 60284, 

Appeals of ECC International Constructors, LLC, rendered in conformance with the 

Board's Charter. 

Dated: 

4 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals