Case: 19-1619 Document: 56 Page: 1 Filed: 06/05/2020
NOTE: This disposition is nonprecedential.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 Ap-
peals in Nos. 59138, 59586, 59643, 60284, Administrative
Judge Owen C. Wilson, Administrative Judge Richard
Shackleford, Administrative Judge Timothy Paul McIl-
mail.
______________________
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, Wash-
ington, DC, for appellee. Also represented by JOSEPH H.
Case: 19-1619 Document: 56 Page: 2 Filed: 06/05/2020
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 (“solic-
itation”) for the design and construction of a Special Oper-
ations 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 cor-
rectly 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 construc-
tive 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].” Oman-
Fischbach 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 secu-
rity requirements for the work site,” and that “[t]he Con-
tractor 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 con-
tract, which states that “Base Security maintains the ulti-
mate 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 se-
cure 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 cre-
ates 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 proce-
dures would not apply to the work site, or that the Base
perimeter would not expand. It merely governs the Con-
tractor’s sequencing of its work. This provision is wholly
consistent with ¶ Y’s vesting of ultimate authority for se-
curity procedures with the operator of the Base.
The Board did not err in finding no meaningful distinc-
tion between this case and Oman-Fischbach. In Oman-
Fischbach, 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. Oman-
Fischbach, 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 distin-
guishable 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 pro-
ject.” 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 ac-
cess 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 evi-
dence in the form of the parties’ contemporaneous commu-
nications 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 opera-
tor 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 ex-
trinsic 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 con-
troversy is deemed by the courts to be of great, if not con-
trolling 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 agree-
ment 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
Case: 19-1619 Document: 56 Page: 6 Filed: 06/05/2020
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 communica-
tions); J.A. 98 (Contracting Officer’s representative re-
questing 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 im-
plications from the security changes”); J.A. 107 (Contract-
ing Officer’s representative noting changes in security
policy). Even if considered, the correspondence does not
show that the contract included an unmistakable war-
ranty.
We have carefully considered ECC’s remaining argu-
ments 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