NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

ECC INTERNATIONAL CONSTRUCTORS, LLC,

Appellant

v.

SECRETARY OF THE ARMY,

Appellee

______________________

2019-1619

______________________

Appeal from the Armed Services Board of Contract Appeals in Nos. 59138, 59586, 59643, 60284, Administrative 

Judge Owen C. Wilson, Administrative Judge Richard 

Shackleford, Administrative Judge Timothy Paul McIlmail.

______________________

Decided: June 5, 2020

______________________

ROY DALE HOLMES, Cohen Seglias Pallas Greenhall & 

Furman, Philadelphia, PA, for appellant. Also represented 

by MICHAEL H. PAYNE. 

 JESSICA R. TOPLIN, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, for appellee. Also represented by JOSEPH H.

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2 ECC INT’L CONSTRUCTORS v. SECRETARY OF THE ARMY

HUNT, ROBERT EDWARD KIRSCHMAN, JR., PATRICIA M.

MCCARTHY. 

______________________

Before LOURIE, LINN, and WALLACH, Circuit Judges.

LINN, Circuit Judge

ECC International Construction, LLC (“ECC”), the 

holder of Contract No. W912ER-10-C-0054 (“contract”)

awarded under Solicitation No. W912ER-10-R-0062 (“solicitation”) for the design and construction of a Special Operations Facility Joint Operations Center (“JOC”), appeals 

the decision of the Board of Contract Appeals (“Board”) 

granting summary judgment in favor of the Army and 

denying ECC entitlement to additional compensation for 

costs and delays incurred in meeting heightened “inside 

the wire” security procedures imposed by the operator of a 

nearby International Security Assistance Force military 

base (“Base”) after it expanded the perimeter of the Base to 

envelop the JOC construction site. See Appeals of ECC Int’l

Constructors, LLC, ASBCA No. 59138, 19-1 BCA ¶ 37252, 

2019 WL 495998 (Jan. 24, 2019). Because the Board correctly concluded that the change in security procedures 

was not a constructive change in the contract for which 

ECC is entitled to compensation, we affirm.

I

It is undisputed that the operator of the Base is a third 

party and that the Base expansion was the act of that third 

party and not the government. As the Board recognized, 

the government is not liable under contract for increased 

costs caused by acts of a third party absent the breach of 

an unqualified warranty that would amount to a constructive change in the agreed terms. Such liability exists only 

where “the parties in unmistakable terms agreed to shift 

the risk of increased costs [to the government].” OmanFischbach Int’l (JV) v. Pirie, 276 F.3d 1380, 1385 (Fed. Cir. 

2002).

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ECC INT’L CONSTRUCTORS v. SECRETARY OF THE ARMY 3

Paragraph 1.2 of the contract states that the JOC “will 

be sited at Mazar-e-Sharif, Afghanistan, on a dedicated 

area located outside the perimeter fencing of the existing 

base.” J.A. 70. This is confirmed by Solicitation Drawing 

C-1. Paragraph 1.2 merely describes the location of the 

building site. It does not warrant the security procedures 

that will apply to the site.

Paragraph 1.2 also does not limit the reading of ¶ Y of 

the contract. Paragraph Y explicitly provides that “Base 

security [the operator of the Base] maintains the ultimate 

authority for establishing, monitoring, and enforcing security requirements for the work site,” and that “[t]he Contractor shall be responsible for compliance with all Base 

security requirements.” J.A. 215. ECC argues that “work 

site” in this provision only applies to work sites within the 

Base. That limitation, however, nowhere appears in the 

contract. Moreover, limiting ¶ Y in that way would render

it superfluous in light of special clause SC 1.53 of the contract, which states that “Base Security maintains the ultimate authority for establishing, monitoring, and enforcing 

security requirements . . . on the Base.” J.A. 74; see also 

Appellant’s Reply Br. at 6–7 (arguing that SC 1.53 applies 

to on-Base sites).

Paragraph X of the contract obligates the contractor to 

“erect a temporary security fence around the construction 

limits of the project” and specifies that “[a]ccess to this secure area shall be controlled by the Contractor’s forces.” 

That paragraph is not inconsistent with the requirement of

paragraph Y that Base security procedures be followed 

where and when necessary. The contractor’s obligation to 

control access to the site—either inside or outside the 

wire—does not grant the contractor the right to determine 

the security standards or procedures that might apply over 

the course of the contract. Nothing in that paragraph creates an implied or express warranty that the work site

would not be subject to Base security procedures until ECC 

decided it would be so.

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4 ECC INT’L CONSTRUCTORS v. SECRETARY OF THE ARMY

Further, requiring that the contractor “shall sequence 

construction to complete the majority of the work outside 

the base perimeter fence before cutting the base perimeter 

fences” also does not warrant that the Base security procedures would not apply to the work site, or that the Base

perimeter would not expand. It merely governs the Contractor’s sequencing of its work. This provision is wholly 

consistent with ¶ Y’s vesting of ultimate authority for security procedures with the operator of the Base.

The Board did not err in finding no meaningful distinction between this case and Oman-Fischbach. In OmanFischbach, the mere fact that the contract depicted several 

routes to a disposal site on a map did not explicitly assure 

the contractor of access to any particular route. OmanFischbach, 276 F.3d at 1384–85. Here, ECC’s contractual 

responsibility to enforce security procedures on the work

site did not unmistakably give it the right to determine the 

particular security procedures applicable thereto or the 

timing of when the work site might be brought within the 

Base perimeter fence and subject to heightened security 

procedures. This case, like Oman-Fischbach, is distinguishable from D&L Construction, where “[t]he contract 

provided that defendant would make available to plaintiff 

existing off-site improvements, such as existing streets,” 

and where the contracting officer sent contractor a letter 

on the same day that the contract was executed, indicating 

that the United States “will provide suitable access and 

means of ingress and egress to and from the subject project.” D&L Const. Co. & Assoc. v. United States, 402 F.3d 

990, 997 (Ct. Cl. 1968). This case is also distinguishable 

from J.E. McAmis, where the contract included drawings 

showing haul routes, one of which explicitly required the 

use of designated roads and stated that “all designated access roads will be maintained for permanent access.” In re 

J.E. McAmis, Inc., ASBCA No. 54455, 10-2 B.C.A. (CCH) ¶

34607, 2010 WL 4822734 (Nov. 18, 2010). There are no 

similar provisions in the contract at issue here.

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ECC INT’L CONSTRUCTORS v. SECRETARY OF THE ARMY 5

II

In a series of chain cites, ECC argues that parole evidence in the form of the parties’ contemporaneous communications reflects the parties’ understanding that the 

government warranted that the Base safety procedures 

would not apply to the JOC site. The Board did not err in 

not considering these communications. First, as explained 

above, the contract unambiguously stated that the operator of the Base maintained ultimate authority for security. 

See Banknote Corp. of Am. v. United States, 365 F.3d 1345, 

1353 (Fed. Cir. 2004) (noting that we do not consider extrinsic evidence to interpret a contract or solicitation if the 

provisions “are clear and unambiguous”). Second, the cited 

communications occurred after the circumstances giving 

rise to this dispute. The parties entered into the Contract 

in 2010, but the cited communications are from 2012 when 

the Base expansion was in progress. ECC’s cases indicate 

that the relevant time frame for determining the scope of 

the contract warranties is before the changes that gave rise 

to the dispute. See Russel & Assocs.-Fresno Ltd. v. United 

States, 1979 WL 16491 (Ct. Cl. Mar. 9, 1979) (considering 

the parties’ performance of the contract over the first 18 

months “before any problems with the HVAC system 

arose”); Max Drill, Inc. v. United States, 427 F.2d 1233, 

1240 (Ct. Cl. 1970) (“The interpretation of a contract by the 

parties to it before the contract becomes the subject of controversy is deemed by the courts to be of great, if not controlling weight.”); Macke Co. v. United States, 467 F.2d 

1323, 1325 (Ct. Cl. 1972) (“[H]ow the parties act under the 

arrangement, before the advent of controversy, is often 

more revealing than the dry language of the written agreement by itself.”). These communications, therefore, do not 

aid in interpreting whether the government warranted the 

security procedures at the JOC.

Moreover, nothing in the correspondence indicates that 

the government would pay ECC for the additional costs 

arising out of the expansion, or that such payments were 

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6 ECC INT’L CONSTRUCTORS v. SECRETARY OF THE ARMY

mandated by any warranty in the contract. At best, the 

letters indicate that the parties acknowledged that there 

was a change of circumstance, that ECC was asking for 

compensation due to this change, and that the government 

asked ECC for the estimated impact of the changes to the 

contract. J.A. 63 (Hayward Dec’l listing the communications); J.A. 98 (Contracting Officer’s representative requesting ECC to submit “a quantified request” of how it 

was affected by the change); J.A. 100 (Contracting Officer’s 

representative noting the interim security policy); J.A. 

102–05 (Contracting Officer’s representative noting that 

“everyone here is aware that there will be contractual implications from the security changes”); J.A. 107 (Contracting Officer’s representative noting changes in security 

policy). Even if considered, the correspondence does not 

show that the contract included an unmistakable warranty.

We have carefully considered ECC’s remaining arguments and conclude that they have no merit.

For the foregoing reasons, we see no error in the 

Board’s grant of summary judgment to the government.

AFFIRMED

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