ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
ECC International Constructors, LLC ) ASBCA No. 59586
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Under Contract No. W912ER-10-C-0054 )
APPEARANCES FOR THE APPELLANT: R. Dale Holmes, Esq.
Michael H. Payne, 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.
Geoffrey A. Mueller, Esq.
Matthew Tilghman, Esq.
Kathryn G. Morris, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Middle East
Winchester, VA
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON GOVERNMENT’S
MOTION TO DISMISS FOR LACK OF JURISDICTION
This appeal was consolidated (not merged) with ASBCA No. 59643, see generally
Avant Assessment, LLC, ASBCA No. 58867, 16-1 BCA ¶ 36,436 at 177,601
(distinguishing consolidation from merger), and was heard with ASBCA No. 59643. In
the interest of efficiency, we address the jurisdictional challenge to this appeal separately.
The government moves for the dismissal of the appeal for lack of jurisdiction, saying that
appellant, ECC International Constructors, LLC (ECCI), did not provide sums certain for
what the government says are separate claims. This opinion addresses that issue. In
addition, in post-hearing briefing both parties claim $940,274 in liquidated damages.
That issue will be addressed in a separate opinion.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
In September 2010, the parties contracted for ECCI to design and
construct a military compound in Afghanistan (R4, tab 5 at 2, 179 § 1.1). On
February 12, 2014, ECCI submitted to the contracting officer a demand for
$13,519,913.91 for 329 days of alleged government delay in three categories:
(1) changes to address security requirements for the contract; (2) review of the 95% and
100% design submissions; and (3) other directives to perform additional work or to
change the requirements of the contract (R4, tab 72 at 1). The submission breaks the
$13,519,913.91 demand amount into cost elements (e.g., labor, labor overhead,
equipment, etc.), but does not break it down by particular delay categories or events (R4,
tab 72 at 270). Nor does the breakdown include any component for the return of
liquidated damages (id.); indeed, the February 12, 2014 submission to the contracting
officer does not request remission of liquidated damages.
In its claim to the contracting officer, ECCI explained the basis of its claim of
alleged delays to the 95% and 100% design submissions:
While developing the initial design deliverables, ECCI began
incurring delays resulting from longer than scheduled
Government design review periods . . . . The most notable
impact to our design schedule after 10 July 2011 was derived
from excessive delays in the Government’s issuance of the
“Utility Consolidation” or “Site Synchronization”
modification, requiring significant changes to the design of
site civil and utility infrastructure to accommodate and
support the neighboring Aviation Compound project. It was
on 19 October 2011, over seven months after ECCI originally
priced the modification, and over three months after the
cut-off date for the items addressed in the 65% Design Delay
modification, when the “Utility Consolidation” or “Site
Synchronization” modification was finally negotiated and
issued. While the construction cost impacts were addressed
by Modification P0004, the associated delay and
delay costs were not addressed . . . . A line item summary of
the delays related to design, construction
submittals, and other over-reaching actions from the
Government is provided in Attachment A.
(R4, tab 72 at 12) ECCI also identified the basis of its claim of alleged delays from
alleged government directives to add work or to change contract requirements, consisting
of (1) directives to add and change communications system; (2) government delay in
HVAC design and construction submittal delay and direction to provide changed HVAC
equipment; (3) government delay in approval of fire protection design and construction
submittals; (4) changing direction regarding design and provision of Uninterruptible
Power Supply (UPS); (5) unilateral kennel modification; (6) HVAC start up and
commissioning technical expert banned from Camp Pratt; (7) electrical and fire alarm
stop work order; and (8) dedicated communications rooms electrical panels (R4, tab 72
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at 25-51). In addition, ECCI summarized the basis of its claim for alleged delays
associated with directed security changes:
The Government imposed direct and significant changes to
the security requirements of this contract, made countless
revisions to their written policies that were not communicated
to ECCI, and imposed numerous and ever-changing
unpublished revisions, interpretations and additional
requirements to those policies.
(R4, tab 72 at 58) Finally, the submission to the contracting officer includes a
spreadsheet entitled Estimate Detail Report; that series of monthly project cost data does
not identify the specific rates that apply to specific sub-claims (R4, tab 72 at 273-95).
Regarding the security requirements issue, on January 24, 2019, in ECC Int’l
Constructors, LLC, ASBCA No. 59138 et al., 19-1 BCA ¶ 37,252 at 181,315, aff’d, 817
Fed. App’x 952 (Fed. Cir. 2020) (unpublished opinion), we entered summary judgment in
the government’s favor, holding that, when the International Security Assistance Force
(which is not an agency of the United States Government) encompassed the contract
work site within its base security fence, and enforced its own 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 ECCI to recovery from the government.
Familiarity with that opinion is assumed. Because that decision, affirmed on appeal, is
final, see generally Orlando Helicopter Airways, Inc. v. Widnall, 51 F.3d 258, 261 (Fed.
Cir. 1995) (concluding that Board’s decision granting partial summary judgment was
final for purposes of appellate review), the claim for the cost of delays arising from a
change in security requirements is no longer before us.
Finally, ECCI filed this appeal on September 19, 2014, and the government filed
its motion on June 23, 2020, during post-hearing briefing.
DECISION
ECCI has the burden of proving the Board’s jurisdiction by a preponderance of the
evidence, including that it presented to the contracting officer a claim, which, in the case
of a demand for money, must be stated in a sum certain. See Naseem Al-Oula Co.,
ASBCA No. 61321 et al., 20-1 BCA ¶ 37,490 at 182,148. Identifying what constitutes a
separate claim is important. K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000,
1005-06 (Fed. Cir. 2015). The jurisdictional standard must be applied to each claim, not
an entire case; jurisdiction exists over those claims that satisfy the requirements of an
adequate statement of the amount sought and an adequate statement of the basis for the
request. Id. Congress did not intend the word “claim” to mean the whole case between
the contractor and the Government, but, rather, that “claim” means each claim under the
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Contract Disputes Act (41 U.S.C. §§ 7101-7109) for money that is one part of a divisible
case. Joseph Morton Co. v. United States, 757 F.2d 1273, 1281 (Fed. Cir. 1985). The
requirement that a claim adequately specify both the amount sought and the basis for the
request means that requests involve separate claims if they either request different
remedies (whether monetary or non-monetary) or assert grounds that are materially
different from each other factually or legally. K-Con Bldg., 778 F.3d at 1005. This
approach, which has been applied in a practical way, serves the objective of giving the
contracting officer an ample, pre-suit opportunity to rule on a request. Id. at 1006.
Claims seeking different types of remedy, such as expectation damages versus
consequential damages, are different claims. See id. Presenting a materially different
factual or legal theory (e.g., breach of contract for not constructing a building on time
versus breach of contract for constructing with the wrong materials) creates a different
claim. See id. We must go beyond the face of claims to make these distinctions. See id.
For example, although there may be a common type of fact involved in a contractor’s
various extended overhead claims, i.e., a cause of delay, that does not necessarily mean
that each claim involves proof of a common or related set of operative facts. Placeway
Constr. Corp. v. United States, 920 F.2d 903, 909 (Fed. Cir. 1990). Such a “factual
thread” is not determinative of whether there is only a single, unitary extended overhead
claim. Id.
Consequently, a contractor’s monetary claim must not only state a bottom-line
sum certain for the overall claim, it must also state a sum certain for any distinct claim
component within the overall claim. See K-Con Bldg., 778 F.3d at 1005; Joseph
Sottolano, ASBCA No. 59777, 15-1 BCA ¶ 35,970 at 175,735. If no sum certain is
specified, the contracting officer cannot settle the claim by awarding a specific amount of
money, because such a settlement would not preclude the contractor from filing suit
seeking the difference between the amount awarded and some larger amount never
specifically articulated to the contracting officer. N. Star Alaska Hous. Corp. v. United
States, 76 Fed. Cl. 158, 184; dismissed, 226 F. App’x 1004 (Fed. Cir. 2007) (table).
The government contends that “[a]lthough these are all claims for delay, the
operative facts for each of the claims are separate and independent of the operative facts
for all of the other claims.” Thus, the government concludes, “the claim is not a unitary
claim, but rather a number of separate claims,” and without a sum certain for each of
those claims, the claim was never properly submitted to the contracting officer for a
decision. (Gov’t mot. at 9) ECCI counters that the government’s motion is contrary to
the evidence contained in the record (app. resp. at 3).
ECCI’s claim submission to the contracting officer sets forth a bottom-line sum
certain, but does not set forth sums certain for any of the discrete sub-claims that
comprise that submission. Other than the security changes sub-claim no longer before us,
those sub-claims fall into two categories: (1) the 95% and 100% design submissions; and
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(2) other additional work or contract changes. Each of these categories relies upon its
own set of operative facts: the design delay claims rely upon “facts concerning longer
than scheduled Government design review periods,” and the remainder of the submission
to the contracting officer that is still at issue rely upon facts – according to the narrative
of the submission itself – concerning eight distinct categories of alleged government
action. However, in its claim to the contracting officer ECCI assigns to none of those a
sum certain.
Citing Phi Applied Physical Sciences, Inc., ASBCA No. 56581, 13 BCA ¶ 35,308
at 173,337, ECCI invokes the rule that the sum certain requirement is met if the sum,
although not expressly totaled by the contractor, “is readily calculable by simple
arithmetic” (app. opp. at 17), saying that “if there was any question about the costs
arising from any specific cause of delay, those questions could be answered via ‘simple
arithmetic’ by multiplying the number of days by the applicable rate at the time the delay
occurred” (id. at 18). In addition, ECCI points to the Estimate Detail Report that
accompanies the submission to the contracting officer, saying that the spreadsheet
“provided the Government with all of the calculations used to determine the costs
associated with each of the critical path delays addressed in ECCI’s delay claim” (app.
opp. at 9-10 ¶ 15-17). However, that spreadsheet does not identify the specific rates that
apply to specific sub-claims, nor does it indicate how the contracting officer would
calculate those rates. Moreover, having reviewed the spreadsheet, we do not see how
sums certain for the sub-claims at issue would be readily calculable by simple arithmetic.
Presumably not coincidentally, ECCI does not even now identify what those rates are,
much less, as the government points out (gov’t reply at 9), does ECCI even now perform
the arithmetic that it says is simple. Consequently, ECCI fails to demonstrate that the
sums at issue are readily calculable by simple arithmetic. Cf. Sweet Star Logistic Serv.,
ASBCA No. 62082, 20-1 BCA ¶ 37,704 at 183,046 (“appellant’s purported claim is
ambiguous, unclear, and gives the [contracting officer] inadequate notice of the basis and
amount of the claim”); CDM Constructors, Inc., ASBCA No. 59524, 15-1 BCA ¶ 36,097
at 176,239 (“By failing either to specify, expressly, that $972,476 was the claim amount,
or to provide the contracting officer with easily-understood information from which that
amount could be arrived at through a simple calculation, CDM failed to state a sum
certain.”); Al Bahar Co., ASBCA No. 58416, 14-1 BCA ¶ 35,691 at 174,689 (“Although
appellant’s written objection does not itself state a sum certain, the totality of the
correspondence between the parties establishes, by simple mathematical calculation of
the dollar amounts of the 10 DD250s that appellant submitted [], appellant had submitted
to the [contracting officer] a claim for $44,500 (10 x $4,450).”); N. Star Alaska, 76 Fed.
Cl. at 185 (“While plaintiff suggests that administrative claims can be cobbled together
from various documents that were possessed by defendant, as to most of the claims at
issue, there are no select group of documents, supplied by plaintiff or otherwise, that
provide a “clear and unequivocal” indication as to the amount sought by plaintiff.”).
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Finally, citing Board Rule 7(b), which provides (emphasis added) that “[a]ny
motion addressed to the jurisdiction of the Board should be promptly filed,” ECCI
challenges the timeliness of the government’s motion, given that the June 23, 2020
motion was filed post-hearing and more than six years after the February 12, 2014
presentation of ECCI’s submission to the contracting officer (app. opp. at 2-3, 20-21).
However, the use of the term “should” is precatory, not mandatory, see Antor Media
Corp., 689 F.3d 1282, 1290 (Fed. Cir. 2012); Record Steel & Constr., Inc. v. United
States, 62 Fed. Cl. 508, 515 (2004). Moreover, the jurisdiction of the Board may be
raised at any time prior to final decision by the parties or by the Board itself. B.W.
Hovermill Co., ASBCA No. 5570, 59-2 BCA ¶ 2,439; see Folden v. United States,
379 F.3d 1344, 1354 (Fed. Cir. 2004).
For these reasons, the affirmative monetary claims set forth in appellant’s
February 12, 2014 submission to the contracting officer arising from (1) government
review of the 95% and 100% design submissions, and (2) other directives to perform
additional work or to change the requirements of the contract, are dismissed for lack of
jurisdiction. A separate opinion will address the parties’ claims for liquidated damages,
including whether the Board possesses jurisdiction to entertain those claims.
CONCLUSION
The government’s motion is granted in part: the affirmative monetary claims set
forth in appellant’s February 12, 2014 submission to the contracting officer arising from
(1) government review of the 95% and 100% design submissions, and (2) other directives
to perform additional work or to change the requirements of the contract, are dismissed
for lack of jurisdiction.
Dated: May 17, 2021
TIMOTHY P. MCILMAIL
Administrative Judge
Armed Services Board
of Contract Appeals
(Signatures continued)
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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 No. 59586, Appeal of ECC
International Constructors, LLC, rendered in conformance with the Board’s Charter.
Dated: May 21, 2021
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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