### ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeals of

-- ) ) 

### ECC International Constructors, LLC ) ) ) 

### Under ContractNo. W912ER-10-C-0054 )
APPEARANCES FORTHE APPELLANT:

APPEARANCES FORTHE 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 ChiefTrial Attorney Sarah L. Hinkle, Esq. Matthew Tilghman, Esq.

EngineerTrial Attorneys U.S. Army Engineer District, Middle East Winchester, VA
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE PARTIES' CROSS-MOTIONS FORPARTIAL SUMMARYJUDGMENT
The parties cross-move for summaryjudgment 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 FORPURPOSES 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'tresp. at 7, 

### ,i 28). ISAF is not an agency ofthe United States Government (see 

### app. mot. at 9, 

### ,i40; gov'tresp. at 8, 

### ,i40). The contractprovides that "[t]he Compound will be sited

...on a dedicated area located outside the perimeter fencing ofthe existing base" (app. mot. at 2, 

### ,i 3 (§ 

### 01 10 00.12 10, 

### ,i 1.2); gov'tresp. at 1, 

### ,i 3). A contract drawing also depicted thatthe project location would be outside the base security perimeter (see 

### app. mot. at 2, 

### ,i 4 (Drawing C-1); gov't resp. at 1, 

### ,i4). The contract provides that: 

# I f

### The Contractor shall erect a temporary security fence around the construction limits ofthe 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 ofthe work outside the base perimeter fence before cutting the base perimeter fences to install gates, connectorroad, and communications tie-in as shown and described in this contract. (App. mot. at 2-3,

## ,r,r 5-6 (§ 

### 00800,

## ,r W); gov'tresp. at 2, 

## ,r,i 5-6, at 18,

## ,r 90, at 27)
The contract also provides that:
Priorto mobilization, the Contractor shall submit the proposed means ofproviding 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 ofall materials, supplies, and equipment ofevery description, including property which may be Government-furnished or owned, for all areas occupiedjointlyby the Contractor and the Government, as well as for all workperformed.
(App. mot. at 8, 

## ,r 33 

### (§ 01 31 13.12 10,

## ,r 1.5); gov'tresp. 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 ofthe base security fence that encompassed the contract work site; and (2) exercised its authority to establish, monitor, and enforce all ofthe 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'tresp. at 8-9,

## ,r,r 35-36, 43, 45).
DECISION Relying upon the contractprovisions and drawings referenced above, appellant requests summaryjudgmentthat the actions ofthe 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 summaryjudgmentthat, among other things, "[t]he change to 

### 2 

# Ithe security posture ofthe

...Compoundwas not a constructive change to the Contract for which [appellant] is entitled to Compensation," which is a portion ofthe reliefrequested underASBCA No. 59138, and in essence, Count I ofappellant's complaint in ASBCA No. 59586 (gov'tresp. at43, 

### ,i IV). Summaryjudgment shall be granted ifthe movant shows that there is no genuine dispute as to any material fact and the movant is entitledto judgmentas a matter oflaw. AvantAssessment, LLC, ASBCANo. 58867, 15-1 BCA 

## ii 36,067 at 176,127 (citing FED. R. CIV. P. 56(a)).
A breach ofa 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 MetropolitanArea TransitAuthority, No. CIV. 89-1055 TFH, 2006 WL 416177, at *89 (D.D.C. Feb. 22, 2006) (unpublished opinion). However, absent fault ornegligence or an unqualified warranty on the part ofits representatives, the government is not liable for damages resulting from the action ofthird parties. Oman-Fischbach International (JV) v. Pirie, 276 F.3d 1380, 1385 (Fed. Cir. 2002). Unless the parties in unmistakable terms agreed to shiftthe risk ofincreased costs due to acts by the ISAF, no liability on the part ofthe government attaches from such acts. See id. Upon review ofthe motions and supporting materials, we conclude thatthe parties did not agree in unmistakable terms thatthe government would assume the risk ofincreased costs resulting from acts ofthe ISAF that affected access to the work site priorto 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 contractwork site, there was no breach ofa contract warranty, and no constructive change to the contract, that might have entitled appellant to recovery. CfOman-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 ofincreased costs resulting from any acts ofthe Portuguese Armed Forces); !AP Worldwide Services, Inc., ASBCA No. 59397 et al

.. 17-1 BCA 

### ,i 36.763 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): ContrackInternational, Inc., ASBCA No. 59917, 16-1 BCA 

### ,i 36,532 at 177,955 (denying summaryjudgment 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). Appellantrelies (app. mot. at 16: app. reply at 14) uponJE. McAmis, Inc., ASBCANo. 54455 etal., 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, I0-2 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 summaryjudgment, and grant the government's request for partial summary judgmentthat '"[t]he change to the security posture ofthe.-

..Compound was not a constructive change to the Contract for which [appellant] is entitledto Compensation."

3CONCLUSION Appellant's motion for partial summaryjudgment is denied; the government's cross-motion for partial summaryjudgment on the issue ofentitlement with regard to ASBCA No. 59138 and Count I ofASBCANo. 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 ofContractAppeals

# ~M~ Administrative Judge Armed Services Board ofContract Appeals

I concur

OWEN C. WILSON Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA Nos. 59138, 59586, 59643, 60284, Appeals ofECC International Constructors, LLC, rendered in conformance with the Board's Charter.

Dated:

4 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals 

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