ECC International Constructors, LLC

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) ECC International Constructors, LLC ) ASBCA No. 59586 ) Under Contract No. W912ER-10-C-0054 ) APPEARANCES FOR THE APPELLANT: R. Dale Holmes, Esq. Michael H. Payne, Esq. Cohen Seglias Palla 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 Engineers District, Middle East Winchester, VA OPINION BY ADMINISTRATIVE JUDGE MCILMAIL The parties each claim $940,274 in liquidated damages ostensibly withheld by the government and arising from this contract for the design and construction of a military compound in Afghanistan (see gov’t br. at 40; app. br. at 111, 117). We have issued opinions in this and related appeals, and we assume familiarity with those opinions. ECC Int’l Constructors, LLC, ASBCA No. 59643, 21-1 BCA ¶ 37,967 at 184,392; ECC Int’l Constructors, LLC, ASBCA No. 59586, 21-1 BCA ¶ 37,862, reconsideration denied, 21-1 BCA ¶ 37,897; ECC Int’l Constructors, LLC, ASBCA No. 59138 et al., 19-1 BCA ¶ 37,252; ECC Int’l Constructors, LLC, ASBCA No. 59138 et al., 19-1 BCA ¶ 37,281. The government has the burden of proving that the Board possesses jurisdiction to entertain its claim for liquidated damages by demonstrating that the assessment of liquidated damages is memorialized in a timely final decision by a contracting officer. See ASFA Int’l Constr. Indus. & Trade, Inc., ASBCA No. 57880, 14-1 BCA ¶ 35,736 at 174,909; Parsons Evergreene, LLC, ASBCA No. 57794, 12-2 BCA ¶ 35,092 at 172,347. The government does not demonstrate that a contracting officer has issued a final decision assessing liquidated damages (see gov’t br. at 2-3; gov’t reply at 1-3, 8, 29, 31). The government’s post-hearing reply brief references a January 18, 2014 contracting officer’s final decision (gov’t reply at 1 (citing R4, tab 2)), but that decision addresses appellant’s request for a time extension and more than $800,000; that decision does not assess liquidated damages against appellant (see R4, tab 2 at 1, 12; tab 67 at 1, 3; 70 at 1). Because the government does not satisfy its burden to establish our jurisdiction to entertain its claim to liquidated damages, that claim is dismissed for lack of jurisdiction. See ASFA, 14-1 BCA ¶ 35,736 at 174,910; Parsons Evergreene, 12-2 BCA ¶ 35,092 at 172,347. Consequently, what the government says is $940,274 in liquidated damages is actually, at least at this point, a contract balance presumably owed to appellant. Accordingly, we see no liquidated damages issue to adjudicate on its merits, and dismiss appellant’s claim to liquidated damages, and its request for a 400-day extension of the contract completion date in support of that liquidated damages claim (see app. br. at 111-12), as moot, without prejudice. See Combat Support Assoc., ASBCA Nos. 58945, 58946, 16-1 BCA ¶ 36,288 at 176,974. In view of this and our other opinions related to this appeal, we find it unnecessary to address any of the parties’ remaining arguments. See Kellogg Brown & Root Servs., Inc. v. Sec’y of the Army, 973 F.3d 1366, 1370 (Fed. Cir. 2020); Lowder v. Dep’t of Homeland Security, 504 F.3d 1378, 1383 (Fed. Cir. 2007). Dated: January 6, 2022 TIMOTHY P. MCILMAIL Administrative Judge Armed Services Board of Contract Appeals I concur I concur RICHARD SHACKLEFORD OWEN C. WILSON Administrative Judge Vice Chairman Acting Chairman Armed Services Board Armed Services Board of Contract Appeals of Contract Appeals 2 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: January 10, 2022 PAULLA K. GATES-LEWIS Recorder, Armed Services Board of Contract Appeals 3