                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of--                                  )
                                              )
Garco Construction, Inc.                      )     ASBCA Nos. 57796, 57888
                                              )
Under Contract No. W912DW-06-C-00 19          )

APPEARANCES FOR THE APPELLANT:                       Steven D. Meacham, Esq.
                                                     John V. Leary, Esq.
                                                      Peel Brimley, LLP
                                                      Seattle, WA

APPEARANCES FOR THE GOVERNMENT:                     Thomas H. Gourlay, Jr., Esq.
                                                     Engineer Chief Trial Attorney
                                                    Francis X. Eugenio, Esq.
                                                     Engineer Trial Attorney
                                                     U.S. Army Engineer District, Seattle

    OPINION BY ADMINISTRATIVE JUDGE CLARKE ON THE GOVERNMENT'S
               MOTION FOR PARTIAL SUMMARY JUDGMENT

        The government moves for partial summary judgment 1 based on what it contends
is a sovereign act limiting access of contractor convict employees to the jobsite on
Malmstrom Air Force Base (MAFB). We have jurisdiction pursuant to the Contract
Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. We grant the government's
motion for partial summary judgment in part and deny it in part.

          STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

        1. On 3 August 2006 the U.S. Army Corps of Engineers (COE) awarded Contract
No. W912DW-06-C-0019 (0019) to Garco to replace family housing, phase VI, at MAFB
(R4, tab D at 10-2, -3). MAFB supports the 341st Missile Wing, one ofthree U.S. Air
Force Bases that maintains and operates Minuteman III intercontinental ballistic missiles
(gov't mot., ex. C, BG Finan decl. ~ 2). MAFB is designated a Protection Level 1 (PLI)
installation, the highest security level in the Air Force (id. ).




1
    ASBCA No. 57796 is the original convict labor appeal. ASBCA No. 57888 is a
       "protective appeal" for 57796. The motion is styled "partial" because the issue of
       a time extension remains.
       2. The contract included the following FAR clause:

              52.204-9 PERSONAL IDENTITY VERIFICATION OF
              CONTRACTOR PERSONNEL (JAN 2006)

              (a) The Contractor shall comply with agency personal
              identity verification procedures identified in the contract that
              implement Homeland Security Presidential Directive-12
              (HSPD-12), Office of Management and Budget (OMB)
              guidance M-05-24, and Federal Information Processing
              Standards Publication (FIPS PUB) Number 201.

              (b) The Contractor shall insert this clause in all subcontracts
              when the subcontractor is required to have physical access to
              a federally-controlled facility or access to a Federal
              information system.

(R4, ex. D at 30)

        3. The contract included Section 01001, "SUPPLEMENTARY REQUIREMENTS,"
that included:

             1.6 IDENTIFICATION OF EMPLOYEES AND
             MILITARY REGULATIONS:

                (a) The Contractor shall be responsible for compliance
             with all regulations and orders of the Commanding Officer of
             the Military Installation, respecting identification of
             employees, movements on installation, parking, truck entry,
             and all other military regulations which may affect the work.

                (b) The work under this Contract is to be performed at an
             operating Military Installation with consequent restrictions on
             entry and movement of nonmilitary personnel and equipment.

(R4, ex. D at 01001-2)




                                             2
    4. The contract included Section 01005, "SITE SPECIFIC SUPPLEMENTARY
REQUIREMENTS," which included the following:

              1.3 GENERAL AREA REQUIREMENTS

              Security requirements and procedures shall be coordinated with
              the 341 Security Forces Squadron, Resource Protection
              (telephone 406-731-4344), Malmstrom AFB. Activities of the
              Contractor and Contractor's employees and subcontractors and
              their employees while on the base, will be conducted in
              accordance with base regulations, including those of the fire
              marshal, as well as security directives. This includes, but is not
              limited to, obtaining a Work Clearance Request (AF Form 103)
              before any digging and yielding to alert vehicles during alerts if
              located on a marked alert route. Security directives include
              Antiterrorism Force Protection (paragraph 1.3.4 below) and the
              GENERAL CONTRACTING ENTRY AUTHORITY LIST
              attached [at] the end ofthis Section. This list shall include all
              Contractor personnel working on the base.

(R4, ex. D at 01005-1)

        5. At time of award, MAFB, 34lst Space Wing Pamphlet 31-103,21 July 2005,
Local Security Policy and Security Procedures for Contractors, established "policy for
contractors who require[] entry to the installation" (R4, tab F, subtab 102). Paragraph 5
of the pamphlet deals with entry to the base:

             5. Obtaining Entry Credentials/Passes. Contractors will
             be permitted to enter MAFB by following the procedures set
             forth in this pamphlet.. ..



             5.2 Upon award of a contract, the contractor will be issued an
             Entry Authority List (EAL) (Attachment 5) by the contract
             administrator in 341 CONS. The contractor will need to
             submit the required information for the EAL, to the contract
             administrator in 341 CONS prior to coming to MAFB. Once
             the letter is received from 341 CONS, the Visitor Control
             Center will forward the EAL to the 911 Dispatch Center. A
             911 Dispatcher will run the employees name through the
             National Criminal Information Center system for a wants and
             warrants check. Unfavorable results will be scrutinized and


                                             3
                eligibility will be determined on a case-by-case basis by the
                341 SFG/CC.

(R4, tab F, subtab 102 at 2-3)

         6. The Notice to Proceed was issued to Garco on 21 August 2006 (gov't mot., ex. G).

        7. A pre-construction conference was held on 12 September 2006 that was
documented in a 27 September 2006 set of minutes sent to Garco (R4, tab E, subtab
101). 2 Representatives ofGarco and its subcontractor James Talcott Construction, Inc.,
(JTC) attended (gov't mot., ex. H). The minutes included, "[n]o one with outstanding
warrants, felony convictions, or on probation will be allowed on base" (R4, tab E,
subtab 101 at 2).

        8. On 9 May 2007 Garco forwarded a letter, dated 8 May 2007, from JTC that
stated in part:

               PerF AR 52.222-3 Convict Labor, this clause allows for the
               employment of persons on parole or probation. However,
               JTC does not understand why these individuals are
               continually being denied base access/passes. The
               unemployment rate in Montana is at a historical low. The
               construction industry is in need of qualified employees and
               these individuals should not be denied access to our jobsites.
               This issue is impacting and delaying JTC's performance of
               this contract.

(R4, tab E, subtab 102)

       9. On 17 May 2007, JTC emailed COL Geofrey A. Frazier, MAFB, asking if JTC
could chauffer pre-release convict employees on post and take other precautions in order
to gain access to the jobsite (app. opp'n, ex. 6 at 3). COL Frazier responded stating,
"[o]ur contracting, legal and security experts are meeting early next week to discuss this
issue" and brief COL Finan (id. at 2).

      10. Between 17 May and 10 September 2007, there were a number of meetings
and communications both internal to the Air Force and between the Air Force and
Garco/JTC relating to the pre-release convict employee access issue (app. opp'n, exs. 7,
8,10,11).


2
    The copy in the record is unsigned, however, Garco did not contest the accuracy of the
        minutes in its opposition.

                                              4
      11. In a 10 September 2007 email from Mr. Brad A. Bradley, Administrative
Contracting Officer (ACO Bradley), to JTC concerning the parolee labor access to
MAFB, he wrote:

             I've received an email from Nancy Sinclair of the JAG office.
             A new policy is being worked on. The Wing Commander has
             been briefed on the issue. Until the new policy is finalized,
             the Base has no further news to offer regarding the issue.
             Wish I could offer more insight on this. I can tell you that I
             was at a meeting in the June timeframe with COL Finan
             regarding this issue, and I tried to stress to her just how tight
             the labor pool is right now. She was willing to readjust her
             policy, but she is concerned how the change would be
             implemented so that it is applied fairly to all Base contractors.

(Gov't mot., ex. K)

       12. On 30 October 2007 ACO Bradley, forwarded to Garco an "updated" MAFB
policy memorandum on contractor personnel access to MAFB signed by the base
commander COL Finan, but undated (R4, tab E, subtab 103). The memorandum read in
part:

             MEMORANDUMFORALLCONTRACTORSAND
             CONTRACTOR PERSONNEL



             SUBJECT: Malmstrom AFB Installation Access for
             Contractor Personnel

             1. In order to preserve good order and discipline and
             safeguard personnel, resources and facilities by the authority
             granted to me by the Internal Security Act of 1950, this policy
             is effective immediately for all contractors and contractor
             personnel.



                c. The 911 Dispatch Center will input a listed employees'
             name and data into the National Criminal Information Center
             (NCIC) database for a background check in accordance with
             Air Force directives. Unfavorable results from the
             background check will result in individuals being denied


                                            5
              access to the installation, including, but not limited to,
              individuals that are determined to fall into one or more of the
              following categories: those having outstanding wants or
              warrants, sex offenders, violent offenders, those who are on
              probation, and those who are in a pre-release program. The
              definition of sex offender and violent offender can be found
              at Montana Code Annotated § 46-23-502.

(R4, tab E, subtab 103) Garco does not dispute that COL Finan, as MAFB's Base
Commander, had the authority to issue the policy memorandum nor does Garco dispute
that the policy memorandum, by its terms, applied to "all contractors and contractor
personnel" effective immediately.

       13. By letter dated 13 November 2007, Garco submitted to the ACO a request for
equitable adjustment from JTC, dated 25 October 2007, in the amount of $454,266.44
(R4, tab E, subtab 104). JTC explained:

              FAR 52.222-3 CONVICT LABOR (JUN 2003) specifically
              states that we are allowed to hire and employ individuals
              convicted of an offense for this contract. This FAR has been
              in previous contracts, and we planned on and used these
              individuals for other contracts. Because it is also in this
              contract, we based our cost estimates for Phase VI on our
              ability to use these same individuals or pool of individuals.
              There is a nationwide shortage of experienced construction
              workers. It is well documented that the problem is even more
              acute in Montana with our very low unemployment rate.

(!d. at 2)

       14. On 18 December 2007, CO Nancy A. Gary determined that JTC's REA "has
no merit" and suggested that if Garco/JTC disagreed they should "pursue resolution per
the requirements ofFAR 52.233-1, DISPUTES" (R4, tab E, subtab 106).

       15. By letter dated 21 February 2008 to the ACO, Garco requested
reconsideration of JTC's REA (R4, tab E, subtab 107). The ACO responded on 1 April
2008 reiterating that it found no merit in the REA and again referring Garco/JTC to the
disputes process (R4, tab E, subtab 109).

        16. By letter dated 12 June 2008 to Garco, JTC again explained its position:

              When our employees were first denied access to MAFB in
              early 2007, we asked for an explanation. A response from


                                             6
                MAFB Contracting Officer Arlene Stem dated May 21, 2007,
                informed us that "The Wing Commander makes all
                decisions to grant or deny on a case-by-case basis.
                However, individuals who have been convicted as violent
                offenders or any sexual crime in nature will be denied
                entry to the base."

                However, JTC employees denied access were not violent or
                sexual offenders.

(R4, tab E, subtab 111 at 3) (Emphasis in original) On 25 June 2008, Garco forwarded
JTC's letter to the ACO and requested a contracting officer's final decision (id. at 1).

       17. In an undated letter3 by Mr. Roger Lesofski, Job Developer/System Analyst
of Great Falls Pre-Release Center, to JTC, Mr. Lesofski wrote:

                    Per our discussion last week the 19th of May, I went back
                and checked my employer records at the Pre-Release Center.
                I can confirm to you that we had many residents working on
                Malmstrom AFB during the new construction period starting
                in 2001 thru 2005 and most of2006. As you are aware we
                had residents working for you, Atherton Construction and
                other sub contractors. Which was working exceptionally well
                for us, as well as the contractors. We were able to insure to
                the contractors that these individuals were tested on a weekly
                basics [sic] for drugs, which provides a better work force.
                During the period that Colonel Finan became the base
                commander approximately 2 years ago, [a] Memorandum for
                all contractors was released from her office. The
                Memorandum stated that Pre Release residents would be
                denied access to work on the base. Thus in effect eliminating
                the opportunity for your company and other contractors the
                use of our trained and qualified workers.

(Gov't mot., ex. L)

       18. By letter dated 12 September 2008 to Garco, the alternate ACO,
Allen R. Gallagher, stated that it had no record ofGarco's 25 June 2008 request for a


3
    The copy in the record has a partial fax date at the top reading "y 28, 2008." In
        addition, the reference to "2 years ago" in the letter implies that this letter was
        written in 2008.

                                                7
final decision and suggested that if Garco/JTC desired a final decision that they should
submit a certified claim (R4, tab E, subtab 113).

       19. On 24 May 2011, Garco submitted a certified "Pass Through" claim in the
amount of$1,415,718.40 (R4, tab E, subtab 115). On 28 September 2011, Garco
appealed, on a deemed denial basis, the CO's failure to issue a final decision (R4, tab E,
subtab 118). On 29 September 2011 the Board docketed Garco' s appeal as ASBCA
No. 57796 that was later consolidated with ASBCA No. 57888.

                                        DECISION

       Moving for summary judgment the government argues that COL Finan's policy of
excluding pre-release convicts from MAFB was a sovereign act and as such appellant
cannot recover money damages even if the policy caused its costs of performance to
increase (gov't mot. at 14-16). The government relies in large part on Conner Bros.
Construction Co. v. Geren, 550 F.3d 1368 (Fed. Cir. 2008) wherein the Federal Circuit
affirmed the Board's decision in Conner Bros. Construction Co., ASBCA No. 54109,
07-2 BCA ~ 33,703. The government argues that FAR 52.222-3, CONVICT LABOR {JUN
2003) (Convict Labor clause) does not guarantee access to military installations.

        Appellant counters that it has a "long history" of over 20 years performing
construction projects on MAFB and that during this time it was allowed to employ workers
with criminal records and they were allowed on MAFB {app. opp'n at 6-7). It complains
that in early 2007 under COL Finan, workers that were previously allowed on base were
excluded and the change in policy increased its costs of performance (app. opp'n at 7-8).
Appellant argues that the new policy was established in an arbitrary, unpredictable or
discriminatory manner (app. opp'n at 25). Appellant complains that there was no pre-award
notice of the policy change (app. opp'n at 30), that the "unwritten" policy was implemented
without notice (app. opp'n at 29), that the COE was "Intimately Involved in Developing and
Promulgating the New Policy" (app. opp'n at 34), and that questions of material fact exist
relating to each of its allegations. Alternatively, it argues that the motion should be denied
because it has not had a full opportunity to conduct discovery in defense of the
government's motion (app. opp'n at 39).

       Summary judgment is appropriate only where there is no genuine of material fact
and the moving party is entitled to judgment as a matter of law. Any significant doubt
over factual issues, and all reasonable inferences, must be resolved in favor of the party
opposing summary judgment. Mingus Constructors, Inc. v. United States, 812 F.2d
1387, 1390 (Fed. Cir. 1987); Dixie Construction Co., ASBCA No. 56880, 10-1 BCA
~ 34,422 at 169,918. "[S]ubstantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242,248 (1986); Colbertv. Potter, 471 F.3d 158, 164 (D.C. Cir. 2006).


                                             8
       FAR 52.222-3, CONVICT LABOR (JUN 2003) provides, in part, that "(a) Except as
provided in paragraph (b) of this clause, the Contractor shall not employ in the
performance of this contract any person undergoing a sentence of imprisonment imposed
by any court of a State .... " Paragraph (b) of the clause provides, however, that the
contractor "is not prohibited from employing person" meeting certain criteria. We agree
with the government that this Convict Labor clause does not mandate that convict labor
hired will be granted access to military installations.

       The facts of this case can be divided into two distinct time frames: before and
after COL Finan issued the October 2007 memorandum setting forth MAFB's policy on
contractor employee access to MAFB. We have reviewed the reasons Garco advances
for denying the government's motion for summary judgment pending further discovery
(app. opp'n at 39-42). As explained below, we are not persuaded that any of the reasons
Garco articulated are material to the legal elements of the sovereign act issue that arises
as a consequence of COL Finan's October 2007 policy memorandum. Further discovery,
however, may yield material facts in dispute relating to the exclusion of pre-release
convicts from MAFB prior to the issuance of the October 2007 policy memorandum.

       COL Finan was commander of MAFB between July 2006 and May 2008 (gov't
mot., ex. C). Contract 0019 was awarded to Garco on 3 August 2006 (SOF ~ 1). The
contract included clauses that required Garco to comply with agency personal identity
verification procedures (SOF ~ 2), with all regulations and orders of the Commanding
Officer of the Military Installation affecting the work (SOF ~ 3), and with base security
requirements and procedures (SOF ~ 4). In August 2006 MAFB's policy concerning
contractor employee access to MAFB provided that an employee's name would be run
through the National Criminal Information Center system and any "unfavorable results"
would be "scrutinized" and eligibility for access to MAFB would be determined on a
"case-by-case basis" (SOF ~ 5). During a 12 September 2006 pre-construction
conference attended by Garco and JTC, it was explained that "[n]o one with outstanding
wan-ants, felony convictions, or on probation will be allowed on base" (SOF ,!7).

       GarcoiJTC's claim arises from the fact that JTC hired pre-release convicts with
construction experience to work on contract 0019, but MAFB denied these employees
access to the base (SOF ,-;,-; 8, 16). JTC asserts that this policy was not consistent with its
prior experience with MAFB or the Convict Labor clause, and it "impact[ ed] and
delay[ed] JTC's performance" (SOF ~~ 8, 13, 17). It was not until October 2007 that the
policy of denying base access to pre-release convicts was put in writing in a
memorandum for "ALL CONTRACTORS AND CONTRACTOR PERSONNEL" issued
by the base commander. COL Finan (SOF ,[ 12).

        \\11ile the parties focus on Conner Bros. Construction, 550 F.3d 1368, in their
briefs, we rely both on Conner as well as a more recent case that is factually similar to


                                               9
this appeal, ME.S., Inc., ASBCA No. 56149 eta!., 12-1 BCA ~ 34,958, aff'd, 502
F. Appx. 934 (Fed. Cir. 2013). In ME.S. (ASBCA No. 56350) the contractor claimed
costs associated with a change in the base access policy that caused its employees to
spend an hour each day gaining access to the installation. Citing clauses similar to those
in contract 0019, the Board decided that the change in the base access policy was a
sovereign act. The Board applied the following criteria:

                 With respect to the claimed price adjustment for the delay,
              we have found above that the changed entry procedures were
              required by the installation Security Forces Squadron and
              Air Force Instructions. They were of a public and general
              nature applicable to all contractors at the installation. They
              were intended to improve the physical security of the
              installation, were not intended specifically to nullify contract
              rights, and they provided no economic advantage to the
              government. (Finding 37) We conclude that the changed
              entry procedures were a sovereign act of the government for
              which no monetary compensation is due. See Conner Bros.
              Construction Co. v. Geren, 550 F.3d 1368 (Fed. Cir. 2008).

!d. at 171,856.

        As in ME.S., we deal with a change in base access policy and we apply the same
 standards to arrive at our decision. In her declaration, Brigadier General
 (BG) Sandra E. Finan, former commander ofMAFB during the relevant time period,
 explained that she issued the October 2007 Memorandum for all Contractors and
Contractor Personnel, Subject: Malmstrom AFB Installation Access for Contractor
Personnel, pursuant to authority granted to her by the Internal Security Act of 1950. She
stated that she "clarified the requirements ofHSPD-12, OMB implementing guidance for
HPSD-12, AFI 10-245, AFSPC Sup 1 and 341 st Space Wing Pamphlet 31-103" (gov't
mot., ex. C, BG Finan decI. ~ 4). She clarified what constituted "unfavorable"
information in the 341 st Space Wing Pamphlet 31-103 (id.; SOF ~ 5). The clarification
indentified the following individuals that would be denied access to MAFB: "those
[individuals] having outstanding wants or warrants, sex offenders, violent offenders,
those who are on probation, and those who are in a pre-release program" (Finan decl. ~ 4;
SOF ~ 12). BG Finan stated, "[t]he purpose of my policy was to ensure the safety of
personnel on the installation and preserve the good order and discipline on the
installation" (Finan dec I. ~ 4 ). The policy memorandum on its face applies to all
contractors and contractor personnel, therefore, it is public and general in nature and
applies to all contractors at the installation. There is no evidence that the policy was
intended to nullify contract rights or that it provided to the government an economic
advantage. Appellant presents no evidence contradicting BG Finan's declaration. All of
the criteria in ME.S. are satisfied by the written memorandum of October 2007. The


                                            10
implementation of the base access policy by the October 2007 memorandum was a
sovereign act and the government is not liable in damages that may have been caused
from October 2007 forward.

        For the time period before the October 2007 memorandum the record is less clear.
In its opposition, appellant presents an analysis of contemporaneous documents detailing
the process leading up to COL Finan's execution of her October 2007 memorandum.
This analysis paints a picture of inconsistent explanations of the policy. However, it
appears that the Air Force was consistent about not allowing pre-release convicts on
MAFB from early 2007 (SOF '!! 8). The record is not sufficiently developed to allow the
Board to grant the motion for the period between contract award in August 2006 and
issuance of the October 2007 memorandum.

                                    CONCLUSION

       The government's motion for partial summary judgment is granted as to the period
after COL Finan signed the October 2007 base access policy memorandum. The
government's motion for partial summary judgment is denied as to the time period before
COL Finan signed the October 2007 base access policy memorandum.

      Dated: 14 January 2014


                                                CRAIG S.     ARKE
                                                Administrat ve Judge
                                                Armed Services Board
                                                of Contract Appeals

I concur                                        I concur




4tu:~
Administrative Judge                            Administrative Judge
                                                                             '1.   uS
                                                                                        ,

Acting Chairman                                 Acting Vice Chairman
Armed Services Board                            Armed Services Board
of Contract Appeals                             of Contract Appeals




                                           11
      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. 57796, 57888, Appeals of
Garco Construction, Inc., rendered in conformance with the Board's Charter.

      Dated:




                                               JEFFREY D. GARDIN
                                               Recorder, Armed Services
                                               Board of Contract Appeals




                                          12
