                ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of --                                   )
                                                )
ECC International Constructors, LLC             )       ASBCA Nos. 59138, 59586
                                                )                  59643,60284
                                                )
Under Contract No. W912ER-10-C-0054             )

APPEARANCES FOR THE APPELLANT:                          R. Dale Holmes, Esq.
                                                        Amy M. Kirby, Esq.
                                                         Cohen Seglias Pallas Greenhall & Furman PC
                                                         Philadelphia, PA

APPEARANCES FOR THE GOVERNMENT:                         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:




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              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. 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): 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



                                                 ~M~
                                                 Administrative Judge
                                                 Armed Services Board
                                                 of Contract Appeals

 I concur                                         I concur



 RICHARD SHACKLEFORD                              OWEN C. WILSON
 Administrative Judge                             Administrative Judge
 Acting Chairman                                  Vice Chairman
 Armed Services Board                             Armed Services Board
 of Contract Appeals                              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:



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