rejecting contention that regulation’s language was “precatory” or “aspirational,” and “thus lacking in operative force” where it “speaks not in vague generalities but in precise terms”
How later courts described this case
- rejecting contention that regulation’s language was “precatory” or “aspirational,” and “thus lacking in operative force” where it “speaks not in vague generalities but in precise terms”
- “The testimony and conclusions of one expert clearly were designed to mesh with the Government’s legal theories. His refusal to acknowledge input from counsel in reaching his conclusions were not credible.”
- discerning “a strong partisan position by [expert] in favor of plaintiff, in conflict with one of his duties as an expert witness to objectively assist the court to understand the facts and issue”
- contractor’s contemporaneous admissions were “probative evidence that generators did not comply with the contract” (citations omitted)
Written by the judges who cited it.
The opinion
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 Pallas Greenhall & Furman PC
Philadelphia, PA
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Martin Chu, Esq.
Katherine M. Smith, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Middle East
Winchester, VA
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL
In this appeal concerning a contract to design and construct a 20-building
military compound in Afghanistan, appellant, ECCI International, Inc. (ECCI), alleges
government-caused project delay and other matters, and requests $9,035,587 and the
return of 400 days of withheld liquidated damages. 1 In 2020, the Board conducted a
two-week hearing of this and a companion appeal, ASBCA No. 59643. Although the
parties have briefed the two appeals together, ASBCA No. 59643 will be the subject of
a separate opinion. We have previously issued opinions in and related to ASBCA
Nos. 59586 and 59643, and assume familiarity with those opinions.
FINDINGS OF FACT
1. The Contract, Performance, and Design Review
The contract was awarded on September 29, 2010, in the amount of
$29,186,338, and called for ECCI to design and construct a 70,000 square meter
compound whose primary facilities included a communications building. 2 ECCI was
1
App. br. at 116.
2
R4, tab 5 at 2, 179 § 1.1.
to complete the work within 548 days of receipt of the notice to proceed. 3 After
modifications, the revised contract completion date was March 13, 2013. 4
The contract is of the “design-build” type. 5 Section 3.9 of the contract provides
that ECCI’s design submittals were required to be submitted for government approval
at the “Preliminary (65%), Final (95%), and at the Cleared for Construction (100%)
stage[s].” 6 Section 3.9.2, “Final Design Review Submittal (95%),” provides that
“[t]he review of this submittal is to insure that the design is in accordance with
directions provided the Contractor during the design process,” and that “[t]he only
effort remaining between the FINAL DESIGN REVIEW SUBMITTTAL and the
‘CLEARED FOR CONSTRUCTION’ DESIGN REVIEW SUBMITTAL is the
incorporation of the Government Review Comments.” 7
The government approved ECCI’s 95% design on August 23, 2011, providing
56 comments on the communications design, one of the ten components of ECCI’s
proposed design. 8 ECCI submitted its 100% design on November 19, 2011,
incorporating those comments. 9 Most of the project’s buildings were cleared for
construction in December 2011. 10 However, on December 16, 2011, the government
disapproved the 100% design, providing 226 new comments on the communications
design. 11 The government would require ECCI to submit the 100% communications
design for review no fewer than three more times before approving it. 12
On November 16, 2012, nearly a year after ECCI submitted its 100%
communications design, Robert C. Vanoer, Jr., the government’s resident engineer and
contracting officer’s representative (COR), wrote to ECCI that “[t]he lack of an
approved communications design is causing delays to the project.” 13 At the hearing of
3
R4, tab 5 at 39.
4
See gov’t br. at 3; app. reply at 4.
5
See R4, tab 5 at 179 ¶ 1.1.
6
R4, tab 5 at 250.
7
R4, tab 5 at 251 (capitalization in original).
8
R4, tab 742; app. supp. R4, tab 471; tr. 8/97-98; see app. br. at 4 ¶ 23; 32; gov’t br.
at 18.
9
R4, tab 201; see app. br. at 6 ¶ 29; gov’t br. at 18-19.
10
Tr. 1/36.
11
R4, tab 878; tr. 8/97-98; app. br. at 7 ¶ 35; see gov’t br. at 16 ¶ 17.
12
See app. br. at 9 ¶ 46; gov’t br. at 21 (chart).
13
R4, tab 367; tr. 6/87-88.
2
the appeal, Mr. Vanoer stood by that position. 14 Mr. Vanoer also testified that he
agreed, at the time, with an assessment expressed in a November 2012 government
information paper that “the contract has had significant delays due to,” not only
“contractor inefficiencies,” but “design changes” and (in what we take to be a
reference to the government) “user requested changes.” 15 Mr. Vanoer provided further
testimony indicating that a statement in a January 2013 government email chain that
“getting the contractor to comply with our comms and HVAC design review
comments will cause an eight-month delay” to the project was consistent with his own,
contemporaneous understanding. 16
In addition, on December 6, 2012, the government’s Administrative
Contracting Officer (ACO) John Long wrote to ECCI that:
As a result of the ECC’s [sic] failure to date to submit a
proper Communication System Design, I consider this a
contractor caused delay, and the Government is not liable
for any indirect cost(s) for the entire period, including the
time to complete the design, submit the design for
approval, complete installation, testing and obtain the
Government’s acceptance of the Communication System.
...
To mitigate your costs, reduce your delay, and complete
this important project, the Government is prepared to meet
weekly (via teleconference) to assist your subcontractor. 17
Mr. Long did not testify at the 2020 hearing of this appeal.
The government finally approved ECCI’s 100% communications design on
March 14, 2013, 454 days after initially disapproving that design on December 16,
14
Tr. 6/86-89. Mr. Vanoer also agreed that he had “authority to make official
responses to the contractor, request changes for the project, and direct
contractor’s [sic] activities.” Tr. 6/123-24 (concerning app. supp. R4, tab 111).
15
Tr. 6/107-09 (concerning app. supp. R4, tab 755).
16
See tr. 6/110-11 (concerning app. supp. R4, tab 168 at 1).
17
R4, tab 384 at 1.
3
2011. 18 ECCI substantially completed the project on April 19, 2014, 19 402 days after
the March 13, 2013, revised completion date.
2. The Entry Control Point Security Changes
The contract provides that the compound to be constructed would be sited on a
dedicated area located outside the perimeter fencing of an existing military base. 20 In
2012, an International Security Assistance Force completed “an expansion of the base
security fence that encompassed the contract work site, and . . . exercised its authority
to establish, monitor, and enforce all of the security procedures at the worksite.” ECC
Int’l Constructors, LLC (ECCI), ASBCA No. 59138 et al., 19-1 BCA ¶ 37,252
at 18,314; aff’d sub nom. ECC Int’l Constructors, LLC (ECCI) v. Sec’y of the Army,
817 F. App’x 952 (Fed. Cir. 2020) (table).
3. The Claims and Resulting Appeals
a. ASBCA No. 59138: the appeal from the contracting officer’s decision
upon the October 8, 2013 claim
On October 8, 2013, ECCI presented to the contracting officer a claim for
$807,987.56 and 19 days of delay that ECCI said were the result of changes in security
requirements at the site; specifically, ECCI pointed to “changes to the site that were
made after Contract award, that changed [the] project from ‘outside the wire’ to ‘inside
the wire.’” 21 ECCI explained that the costs and delays at issue “start[ed] on April 7,
2012, and [were] continuing” through at least October 7, 2013, the date of the
certification of the claim. 22 On January 18, 2014, the contracting officer issued a final
decision upon that claim, granting an extension of time of 19 calendar days, and
denying the remainder of the claim. 23 ECCI appealed from that decision on
January 22, 2014. The Board docketed that appeal as ASBCA No. 59138. In its
February 13, 2014 complaint in ASBCA No. 59138, ECCI alleged that:
[a]s a direct result of the changed security requirements,
ECCI suffered 19 calendar days of delays to performance
18
App. supp. R4, tab 177; see ex. 2 (demonstrative).
19
Gov’t br. at 3 ¶¶ 12-13; app. reply at 4.
20
R4, tab 5 at 179 § 1.2.
21
R4, tab 70 at 1, 5.
22
See R4, tab 70 at 3, 5-6.
23
See R4, tab 2 at 1, 12.
4
of the work from early April 2012 through the end of July
2012. 24
ECCI requested $806,732.10, “19 calendar days of time extension,” and a “finding that
the change of site access and security requirements was a compensable change under
the Changes Clause . . . .” 25
b. February 12, 2014 Claim
On February 12, 2014, ECCI presented a claim (Letter H-155) to the
contracting officer, requesting $13,519,913.91 and 329 days of delay for
(1) “[c]hanges directed by the Government to address security requirements for the
contract”; (2) “[t]he 95% and 100% communications design submissions”; and
(3) “[o]ther directives to perform additional work or to change the requirements of the
contract.” 26 In that claim, ECCI represented that from May 15, 2012, through
October 26, 2013, the project experienced 205 days of delay due to changes in the
security posture of the work site (also known as changes to “entry control points”
(ECPs)). 27 More specifically, ECCI explained that from September 29, 2010, through
October 26, 2013, “the project experienced 205 days of ECP [security changes] delays,
and a total of 389 days of Design delays of which 205 days were concurrent to the
ECP delays.” 28 ECCI relied upon the work of Lombardia Consultants for that delay
analysis. 29 No one from Lombardia testified at the hearing of this appeal.
c. Liquidated Damages
On April 9, 2014, an administrative contracting officer (not Mr. Long) assessed
and withheld $940,273.98 in liquidated damages for 402 days of delay, at $2,338.99
per day. 30 ECCI Int’l Constructors, LLC (ECCI), ASBCA No. 59586, 22-1 BCA
38,131 at 185,228. ECCI has not appealed from that assessment.
24
ASBCA No. 59138 compl. at 7 ¶ 39.
25
ASBCA No. 59138 compl. at 10.
26
R4, tab 72 at 1.
27
R4, tab 72 at 59-61, 65. Despite such assertions, ECCI says that “[s]ecurity was
never claimed as a delay issue.” App. br. at 61; see also app. reply at 4, 15, 44.
Nor does ECCI currently say that the ECP security changes constitute an
excusable delay entitling it to remission of liquidated damages. See app. br.
at 26 ¶ 127; reply at 4.
28
R4, tab 72 at 65-66.
29
See tr. 1/241; R4, tab 72 at 273, 333, 608; app. br. at 61.
30
Gov’t br. at 33; R4, tab 816 at 2.
5
d. ASBCA No. 59586: the pending appeal from the deemed denial of the
February 12, 2014 claim
On September 18, 2014, ECCI noticed to the Board its appeal from what ECCI
evidently mischaracterized as the deemed denial of its “May 2, 2014” claim. ECCI
further explained that its “May 2, 2014” claim “was in the amount of ‘$13,519,913.01
and 329 calendar days of delay.’” Despite its references to “May 2, 2014,” we
understand ECCI’s September 18, 2014 notice to appeal from the deemed denial of its
February 12, 2014 claim (Letter H-155) for $13,519,913.91 and 329 days of delay.
The Board docketed ECCI’s September 18, 2014 appeal as ASBCA No. 59586.
On October 23, 2014, ECCI filed a three-count complaint in ASBCA No. 59586.
Count I of the complaint alleges that “[a]s a direct result of the changed security
requirements” at the work site, “ECCI suffered significant delays to performance of
the work from early April 2012 through the end of the project.” 31 Count II alleges
government delays in reviewing “ECCI’s 95%, 100%, and 100% redesign submittals,”
as well as the government’s “directives to perform additional work.” 32 Count III
alleges that the government directed ECCI to perform several specified items of
allegedly extra-contractual work. 33 Count III further alleges that:
[a]s a direct result of all of the directed changes included in
Count III, ECCI incurred critical delays to completion of
the project; the delay costs associated with the directed
changes are included in this claim, while the actual
increase in design, procurement, shipping and construction
costs are included in ECCI’s separate May 2, 2014
Certified Claim.” 34
In its prayer for relief, ECCI again requested $13,519,913.91 and 329 days of delay. 35
31
ASBCA No. 59586 compl. at 7 ¶ 39.
32
ASBCA No. 59586 compl. at 10.
33
ASBCA No. 59586 compl. at 27-38 ¶¶ 156-229. Count III of the complaint in
ASBCA No. 59586 includes allegations of government-directed changes that
are not addressed in ECCI’s briefing of ASBCA No. 59586. To the extent
those allegations appear in ECCI’s briefing of ASBCA No. 59643, we reserve
them for decision in ASBCA No. 59643; otherwise, they are waived. See
Bannum, Inc. v. United States, 779 F.3d 1376, 1382 (Fed. Cir. 2015).
34
ASBCA No. 59586 compl. at 38 ¶ 228.
35
ASBCA No. 59586 compl. at 38.
6
e. ASBCA No. 59643: the pending appeal from the deemed denial of the
May 2, 2014 claim
On May 2, 2014, ECCI presented a claim (Letter H-158) to the contracting
officer, requesting “$3,767,856.32 for the cost impacts” that ECCI claimed were
“directly attributable to the extra work caused and directed by the Government during
execution of the project.” 36 On October 24, 2014, ECCI noticed its appeal from the
deemed denial of that claim, and filed a complaint requesting $3,767,856.32, and that
the Board find that the government “caused additional costs through its handling of the
design review process” and “directed performance of changed work.” 37 The Board
docketed the appeal as ASBCA No. 59643.
f. ASBCA No. 60284: the dismissed appeal from the deemed denial of the
August 11, 2015 claim
On August 11, 2015, ECCI presented to the contracting officer a claim for
$227,987, alleging “directed changes that occurred during the design and construction
of this project.” 38 On October 14, 2015, ECCI noticed its appeal from what it
characterized as the deemed denial of that claim. The Board docketed that appeal as
ASBCA No. 60284. In its October 31, 2015 complaint in that appeal, ECCI requested
$227,986.54, including for “accelerated and phased turnover.” 39 In a pre-hearing brief
filed in ASBCA Nos. 59138, 59586, 59643, and 60284 on February 7, 2020, in which
ECCI requested $13,698,255.40, ECCI again requested $227,986.54 of that amount
based upon the allegation that the government had directed ECCI “to turnover [sic]
buildings in a phased completion.” 40 On February 21, 2020, ECCI requested dismissal
of ASBCA No. 60284 with prejudice. The Board dismissed ASBCA No. 60284 with
prejudice on February 24, 2020. 41
36
R4, tab 75 at 1, 6.
37
ASBCA No. 59643 compl. at 14.
38
October 14, 2015, notice of appeal.
39
ASBCA No. 60284 compl. at 5. We understand the terms “phased turnover” and
“phased handover” to be synonymous.
40
App. prehearing br. at 24-26.
41
During the hearing, ECCI’s counsel confirmed that although the claim for
acceleration damages set forth in ASBCA No. 60284 was no longer before the
Board, the “acceleration claim in the delay claim” (presumably set forth in
ASBCA No. 59586), and its associated alleged damages, were still before the
Board. Tr. 9/49-50.
7
g. Summary Judgment
On January 24, 2019, in ASBCA Nos. 59138 and 59586, the Board ruled upon
the parties’ cross-motions for partial summary judgment upon the question, referring
to the ECP security changes, “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.” ECCI, 19-1 BCA ¶ 37,252
at 181,314. The Board denied ECCI’s motion for summary judgment and granted 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
[ECCI] is entitled to Compensation.” Id. at 181,314-15. Specifically, the Board
granted the government’s cross-motion for partial summary judgment “on the issue of
entitlement with regard to ASBCA No. 59183 and Count I of ASBCA No. 59586 . . .
to the extent set forth” in the Board’s decision. Id. at 181,315. On June 5, 2020, the
United States Court of Appeals for the Federal Circuit affirmed the Board’s opinion,
explaining that the government was not liable for increased costs caused by the
changes in the security posture of the project. ECCI, 817 F. App’x at 953.
h. Expert Delay Report of William Schwartzkopf
On January 3, 2020, nearly a year after the Board ruled that the ECP security
changes at the worksite were not compensable, a delay expert, William Schwartzkopf,
of Sage Consulting, issued a report in support of ECCI’s delay claims. 42
Mr. Schwartzkopf opined that crediting for time extensions, the project experienced
three periods of compensable critical path delay totaling 420 days: (1) 290 days from
March 23, 2012 through March 14, 2013, for the communications redesign;
(2) 53 days from May 28, 2013, through September 15, 2013, for “[a]dded
communications outlets,” and (3) 77 days from November 5, 2013, through
February 28, 2014, for “dedicated electrical panels in communication rooms.” 43
Mr. Schwartzkopf explained that, in arriving at that conclusion, he modeled “[t]wenty-
two impact events—including both potential ECCI-caused delays and potential
Government-caused delays . . . with [Time Impact Analysis (TIA)] schedules to
determine what, if any, impact these issues had on Project Completion.” 44 And in an
undated supplemental “concurrency analysis” to his expert report, presumably
completed after the date of the expert report itself but no later than February 24, 2020
42
App. supp. R4, tab 1251; tr. 3/48, 91, 102.
43
App. supp. R4, tab 1251 at 35-36.
44
App. supp. R4, tab 1251 at 32.
8
(when the hearing of these appeals began), Mr. Schwartzkopf explained, referring to
his 22-item set of potential project delay events, that:
For each of the following impact events, which include
potential [government]-caused delays and known potential
contractor-caused delays, a fragnet—a fragmentary
network, which is a sequence of linked activities—was
built to represent the development and resolution of the
issue[.] 45
A “fragnet” is “a sequence of new activities and/or activity revisions, logical
relationships, and resource changes added to an existing schedule to demonstrate the
influence of a new activity on the schedule.” Nassar Grp. Int’l N.G.I. S.A.L.
(Offshore) R.C., Doing Bus. As NGI Afghanistan for Contracting, ASBCA No. 58451
et al., 22-1 BCA ¶ 38,206 at 185,549 n.15.
The government at least implies that Mr. Schwartzkopf’s opinion is not
credible, noting that absent from the 22 items for which Mr. Schwartzkopf created
fragnets are the ECP security changes that—prior to our 2019 opinion denying ECCI’s
summary judgment motion and granting the government’s summary judgment motion
upon the ECP security changes—ECCI represented had delayed the work from early
April 2012, through the end of the project. 46 Indeed, Mr. Schwartzkopf did not subject
the ECP security changes to the type of analysis to which he subjected the other
22 items, as his testimony on cross-examination makes clear:
Q. Do you have a fragnet for the entry control point
delay?
A. I do not. 47
Although Mr. Schwartzkopf was aware that ECCI had, in its February 12, 2014 claim,
asserted that the security change had delayed the project, 48 he testified in a remarkably
conclusory fashion that “[t]here was no point in modeling [the ECP security changes]
45
Ex. 6 at 2 (emphasis added).
46
Gov’t br. at 29; ASBCA No. 59586 compl. at 7 ¶ 39.
47
Tr. 2/275-76.
48
Tr. 2/273-74.
9
because it couldn’t have delayed design.” 49 When asked whether his analysis
considered “all of the delay events that impacted the project,” he answered:
There were several others that, just looking at them, it was
apparent that they did not cause a critical delay, or the
security change, where we looked at when it happened,
and the construction was on the critical path. 50
And although Mr. Schwartzkopf characterized the security change as insignificant, he
simultaneously testified that he listed the security change in his expert report as one of
several “known significant delays” that were “not incorporated in [his] model.” 51
Despite the testimony indicating that he “looked” at the ECP security
changes, 52 ECCI says that Mr. Schwartzkopf’s delay report “analyzes all potentially
significant delays on the project to establish the critical path delays.” 53 ECCI also says
that “[Mr.] Schwartzkopf testified that he analyzed all delays on the project.” 54
Neither is the case. Mr. Schwartzkopf did not analyze all the potential delay issues on
the project; nor did he testify that he did: specifically, Mr. Schwartzkopf did not
analyze the ECP security changes, at least not in the manner that, as ECCI recites in its
initial post-hearing brief, he analyzed the 100% communications design issue, the
communications outlets issue, and the dedicated electrical panels issue. That is,
Mr. Schwartzkopf did not make the ECP security changes the subject of a fragnet. 55
Again, although he was aware of the ECP security change issue when he issued his
expert report, in order “to evaluate whether the ECP delays may have caused a critical
path delay,” Mr. Schwartzkopf only “looked” at the ECP security changes; 56 he did
not subject that issue to the fragnet-based analysis to which he subjected 22 other
potential delay issues, evidently deliberately.
Indeed, one only has to refer to page 61 of ECCI’s initial post-hearing brief to
see the difference in the analyses performed by Mr. Schwartzkopf (and advanced by
ECCI). Regarding the dedicated electrical panels issue, ECCI says that
Mr. Schwartzkopf “analyzed this delay using a fragnet,” whereas, regarding the ECP
49
Tr. 2/254-55.
50
Tr. 2/254 (emphasis added).
51
Tr. 7/214 (alteration added).
52
See also tr. 3/55-56.
53
App. br. at 43.
54
App. br. at 52; see app. reply at 4.
55
App. br. at 57-62.
56
See app. supp. R4, tab 1251 at 21, 137-38.
10
security changes, ECCI says that Mr. Schwartzkopf “analyzed the security change,” 57
avoiding any reference to a fragnet, as ECCI must when discussing Mr. Schwartzkopf
and the ECP security changes, because Mr. Schwartzkopf did not “use a fragnet” to
analyze the ECP security changes.
ECCI says that “anyone looking at [the project] would see that security was
never the driving delay,” and that “the original analysis in ECCI’s claim showed
delays other than security were longer.” 58 We understand this to be not only a nod to
Mr. Schwartzkopf’s statement that he “looked” at the ECP security changes 59 (which
we take to mean that Mr. Schwartzkopf looked at what Lombardia had said about it),
but also a reference to Lombardia’s report, which we understand was a basis for
ECCI’s February 12, 2014 claim to the contracting officer. 60 Leaving aside for the
moment what Lombardia concluded—particularly because no one from Lombardia
ever testified in this appeal—if that is what ECCI means by delay analysis, we find it
no analysis at all.
What’s more, Mr. Schwartzkopf failed to create a fragnet for the ECP security
change issue even though he agreed that there was contemporaneous evidence in
ECCI’s project records that reflected that workers were delayed in getting through the
entry control points. 61 Indeed, Roger Khoury, the managing partner of Sabaton Salim
Construction Company (SSCC), a subcontractor to ECCI on the project, testified by
sworn declaration dated February 3, 2020, that “[t]he inefficient process of getting
workers through the base security ECP never got better from the time it was
implemented on June 1, 2012, until the project was completed.” 62 Mr. Khoury further
testified that “[a]s a direct result of the changes in security process for access to the
project site, SSCC incurred additional [costs] of 3 types over the 130 days of
Government caused delays, within the period February 2013 to November 2013.” 63
Mr. Khoury’s account is corroborated by Ajmal Imtiaz, the president of another
ECCI subcontractor at the worksite—IMTIAZ Group Construction (IGC)—whose
February 4, 2020 sworn declaration states—in language virtually identical to
Mr. Khoury’s—that “[t]he inefficient process of getting workers through the base
security ECP never got better from the time it started on June 1, 2012, until the project
57
App. br. at 61-62.
58
App. br. at 62.
59
See tr. 2/254.
60
See R4, tab 72 at 273, 333, 608; tr. 1/241-45; app. br. at 61.
61
See tr. 2/272.
62
Ex. 12 at 1, 5-6, 17 (emphasis added).
63
Ex. 12 at 9 (emphasis added).
11
was completed,” and that “[a]s a direct result of the security procedures, IGC incurred
additional costs of 3 types over the 130 days of Government caused delays, within the
period February 2013 to November 2013.” 64 Indeed, Mr. Imtiaz agreed that “[t]he
ECP delay caused more delay to [IGC’s] work on the project than the refinishing after
communications installation,” 65 at least suggesting that the ECP security changes
outlasted the 100% communications design issue as a delay event. And of course,
ECCI admits in its complaint in this appeal that ECP security changes delayed the
project from “April 2012, through the end of the project.” 66 Because
Mr. Schwartzkopf omitted the ECP security changes from the fragnet-based delay
analysis to which he subjected 22 other potential delay issues, we find his delay
opinion not credible, and reject it.
DECISION
In its initial, post-hearing brief in ASBCA No. 59586, ECCI sets forth the
following claims: (1) “improper design review of ECCI’s 95% design submittal;” 67
(2) 420 days of compensable and excusable project delay due to (a) the government’s
allegedly improper review of ECCI’s 100% communications design (290 days), (b) a
government-directed increase in the quantity of communication outlets (53 days), and
(c) a government-directed requirement to provide dedicated electrical panels in
communications rooms (77 days); 68 (3) apparently in support of that improper review
claim, a breach of the implied duty of good faith and fair dealing; 69 (4) that the
government failed to reimburse ECCI for all of ECCI’s Defense Base Act (DBA)
payments; 70 and (5) that the government constructively accelerated the project
schedule. 71
64
Ex. 13 at 1, 5, 6-7, 15 (emphasis added).
65
Tr. 4/43, 62.
66
ASBCA No. 59586 compl. at 7 ¶ 39 (emphasis added).
67
ASBCA No. 59586 compl. at 26-27 ¶ 155.
68
App. br. at 1, 20, 23, 57-62, 110-11. Regarding delay periods and liquidated
damages, ECCI variously references 400 days, 402 days, and 420 days. App.
br. at 62, 111, 116; app. reply at 4, 44. Although the three components of
ECCI’s delay claim total 420 days, app. br. at 26 ¶ 127, ECCI seeks $940,274
in withheld liquidated damages (app. br. at 110; reply at 4), which at 2,338.99
per day equates to 402 days; that $940,274 is equivalent to the $940,273.98
(unrounded) that the government assessed and withheld.
69
App. br. at 14.
70
App. br. at 29-30.
71
App. br. at 19 ¶¶ 81, 86-87; see gov’t br. at 42 ¶ 48 (citing R4, tab 72).
12
I. Review of 95% Design Submittal
In its complaint in ASBCA No. 59586, ECCI presents a claim for recovery
related to the alleged “improper design review of ECCI’s 95% design submittal.” 72
Because we find in ECCI’s post-hearing briefing no separate claim for “improper
design review of ECCI’s 95% design submittal,” that claim is waived or abandoned. 73
See Bannum, 779 F.3d at 1382; SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d
1312, 1319 (Fed. Cir. 2006); Sarro & Assocs., Inc. v. United States, 152 Fed. Cl. 44,
58-59 (2021).
II. Delay Claims
A. Jurisdiction
Again, in ASBCA No. 59586, ECCI claims 420 days of compensable and
excusable project delay due to (a) the government’s allegedly improper review of
ECCI’s 100% communications design (290 days), (b) a government-directed increase
in the quantity of communication outlets (53 days), and (c) a government-directed
requirement to provide dedicated electrical panels in communications rooms (77 days).
The government challenges whether those claims have been presented to the
contracting officer. 74 For the Board to possess jurisdiction to entertain a claim, the
claim must first have been presented to a contracting officer. CDM Constructors, Inc.,
ASBCA No. 59524, 15-1 BCA ¶ 36,097 at 176,238. ECCI’s February 12, 2014 claim
to the contracting officer claims project delay allegedly caused by (1) the
government’s 100% design review, 75 (2) government direction to increase the quantity
72
ASBCA No. 59586 compl. at 26-27 ¶ 155.
73
The government challenges other items that ECCI asserted in a spreadsheet
presented during the hearing (1) an “unpaid balance,” (2) claim preparation
costs, and (3) bond costs (app. reply at 43). (Gov’t br. at 40, 45-46; app. supp.
R4, tab 305; tr. 1/290). ECCI does not assert those three claims in its initial
post-hearing brief, although two of those claims (claim preparation costs and
bond costs) are referenced in ECCI’s reply brief. App. reply at 21, 43. Those
items are waived. See Bannum, 779 F.3d at 1382.
74
Gov’t br. at 4.
75
R4, tab 72 at 8.
13
of electrical outlets, 76 and (3) government direction to provide dedicated electrical
panels. 77 Consequently, we possess jurisdiction to entertain those claims. 78
With respect to liquidated damages, the contract provides that “[i]f the
Contractor fails to complete the work within the time specified in the contract, the
Contractor shall pay liquidated damages to the Government in the amount of
$2,338.99 for each calendar day of delay until the work is completed or accepted.” 79
Both parties claim entitlement to some $940,274 in liquidated damages. 80 On April 9,
2014, the government assessed and withheld $940,273.98 in liquidated damages for
402 days of delayed completion, at the contract rate of $2,338.99 per day. 81 ECCI,
22-1 BCA ¶ 38,131 at 185,228. That assessment is a government claim. Parsons
Evergreene, L.L.C., ASBCA No. 57794, 12-2 BCA ¶ 35,092 at 172,347; K-Con Bldg.
Sys., Inc. v. United States, 107 Fed. Cl. 571, 587 (2012).
B. Mr. Schwartzkopf’s expert delay opinion is not credible
For ECCI to recover for a compensable delay, it “must prove that the
government was the sole cause of the delay and that the appellant did not contribute to
or concurrently cause such delay.” Insulation Specialties, Inc., ASBCA No. 52090,
03-2 BCA ¶ 32,361 at 160,101. Additionally, ECCI “‘must show that the
government’s actions affected activities on the critical path of [ECCI’s] performance
of the contract.’” O-Tech Sols., LLC, ASBCA Nos. 61898, 62095, 23-1 BCA ¶ 38,338
at 186,169. To establish entitlement to an extension based on excusable delay, ECCI
must show that the delay resulted from unforeseeable causes beyond the control and
without the fault or negligence of ECCI, and that the unforeseeable cause delayed the
overall contract completion; that is, the delay must have affected the critical path of
performance. Sauer Inc. v. Danzig, 224 F.3d 1340, 1345 (Fed. Cir. 2000).
To demonstrate that the government delayed project performance, ECCI relies
primarily upon the opinion of Mr. Schwartzkopf. To be credible, a contractor’s delay
76
R4, tab 72 at 29-31.
77
R4, tab 72 at 49-50.
78
In ECC Int’l Constructors, LLC, ASBCA No. 59586, 24-1 BCA ¶ 38,489
at 187,083-84, we denied the government’s motion that we dismiss certain
claims, for lack of jurisdiction, for failure to state sums certain.
79
R4, tab 5 at 39 ¶ 52.211-12(a) (FAR 52.211-12(a), LIQUIDATED DAMAGES –
CONSTRUCTION (SEP 2000)).
80
See app. br. at 110-11, 116; gov’t br. at 2-3, 40, 120; app. reply at 4.
81
Gov’t br. at 3; FAR 52.211-12(a), LIQUIDATED DAMAGES – CONSTRUCTION
(SEP 2000) (R4, tab 5 at 39).
14
analyst must take into account, and give appropriate credit for, all of the delays that
were alleged to have occurred. See Gulf Contracting, Inc., ASBCA No. 30195,
89-2 BCA ¶ 21,812 at 109,759; aff’d, 23 Cl. Ct. 525 (1991); aff’d per curiam,
972 F.2d 1353 (Fed. Cir.) (table) (June 5, 1992); see also Pathman Constr. Co.,
ASBCA No. 23392, 85-2 BCA ¶ 18,096 at 90,837, 90,846-47 (rejecting delay analysis
with “built-in bias”). We have found that Mr. Schwartzkopf deliberately omitted from
the crux of his delay analysis the ECP security changes that—until we ruled against
ECCI upon that issue—ECCI had alleged delayed its performance. That is,
Mr. Schwartzkopf did not make the ECP security changes the subject of a fragnet, as
he did 22 other potential delay events. That renders Mr. Schwartzkopf’s opinion not
credible, and therefore, not helpful to us or to ECCI’s case. Cf. Fireman’s Fund Ins.
Co. v. United States, 92 Fed. Cl. 598, 669-70 (2010) (“Cross-examination assaulted
[plaintiff’s delay expert’s] inclusion of all concrete activity on plaintiffs’ as-built
critical path—which extends through the construction of the floating guidewalls—
at the expense of omitting the installation of the Project’s control systems in the
control tower”); E. Minerals Int’l Inc. v. United States, 39 Fed. Cl. 621, 627 (1997)
(“The testimony and conclusions of one expert clearly were designed to mesh with the
Government’s legal theories. His refusal to acknowledge input from counsel in
reaching his conclusions were not credible.”), judgment rev’d on other grounds,
appeal dismissed sub nom., Wyatt v. United States, 271 F.3d 1090 (Fed. Cir. 2001);
Mega Constr. Co. Inc., v. United States, 29 Fed. Cl. 396, 434 (1993) (discerning “a
strong partisan position by [expert] in favor of plaintiff, in conflict with one of his
duties as an expert witness to objectively assist the court to understand the facts and
issue”). “We are free to reject expert testimony [that] we find intrinsically
unpersuasive,” Reflectone, Inc., 98-2 BCA ¶ 29,869 at 147,829, and here, we find
Mr. Schwartzkopf’s opinion intrinsically unpersuasive.
Indeed, what Mr. Schwarztkopf did conflicts with what ECCI’s counsel forecast
on the first day of the hearing of this appeal. Counsel offered the following
explanation of how delay experts conduct a “time impact analysis” (TIA) of the type
that Mr. Schwartzkopf performed, pointing out the importance of making potential
delay events the subject of fragnets in order to determine what delayed a project’s
critical path:
[T]hey chop the project into different sections of time
based on the delay events, and then they do the time-
impact analysis doing the fragnets . . . .
Or maybe new delay items came into the picture
and the expert has to use his professional judgment to say
well there’s some new delay issues that are starting, so I
15
need to start a new window and then I need to do a new
impact window for that analysis and new fragnets for
those.
...
You need to do a time impact for each potential delaying
issue . . . .
But if you’ve not looked at all the other issues that
are potentially delaying, like the contractor’s issues or
other government issues, then you’re not going to know
which one is actually the critical path delay. 82
Even Mr. Schwartzkopf’s testimony highlights, although in awkward phrasing, the
importance of fragnets in delay analysis:
Q: But if the 100 percent design was never on the critical
path, how could it have become critical at all?
A: Well, any activity can become critical if it’s extended or
pushed out. When we put a fragnet in, the model that it will
push out [sic]. 83
And ECCI concisely describes how, in analyzing the alleged communications outlets
delay, Mr. Schwartzkopf relied upon a fragnet:
A fragnet was created and inserted, showing the increased
outlets as a driving delay. 84
Even judged by ECCI’s own standard, then, by not making the ECP security
issue the subject of a fragnet, Mr. Schwartzkopf cannot know—and so neither from his
opinion can the Board know—whether the ECP security changes were a critical path
delay. Moreover, Mr. Schwartzkopf failed to meet the standard that he used to
82
Tr. 1/86-88.
83
Tr. 3/67-68 (emphasis added).
84
App. br. at 60. ECCI apparently uses the term “driving delay” to refer to the
concept of critical path delay. See, e.g., app. br. at 25, 56 n.10.
16
criticize the government’s delay expert for allegedly “dropp[ing] the design issue as a
factor” for consideration:
But that’s one of the flaws when you do an as-built versus
and-planned, is the scheduler can make judgments about
what he wants to analyze. They chose not to analyze it,
and it’s a huge issue on this case and on this project. 85
In response to what it says is the charge that “ECCI has changed its delay claim
from the security issue to the communications re-design,” ECCI counters that
“[s]ecurity was never claimed as a delay issue; design delays and directed extra work
were always the primary delay claim.” 86 In support, ECCI quotes the testimony of
ECCI Senior Program Manager, Scott Hayward, referring to Lombardia: 87
Well, at the very beginning prior to getting Lombardia, you
know, [ECCI]’s own internal analysis of the first few
months basically found that security wasn’t the driving
delay. Lombardia’s analysis found the same thing. 88
ECCI’s reliance on that quote is a weak and ineffective explanation of
Mr. Schwartzkopf’s omission of the ECP security changes from the set of nearly
two dozen items for which he created fragnets. First, Lombardia created fragnets for
the ECP security changes, and its delay report is replete with references to those
fragnets. 89 Indeed, of Lombardia’s analysis, which was completed no later than the
submission of the February 12, 2014 ECCI claim in which that analysis is
incorporated, 90 ECCI explained in that claim that:
For each change and/or delay issue that is discussed as part
of [the February 12, 2014 claim], a Fragmentary Network
(fragnet) was created demonstrating how the work was
incorporated into the project schedule. 91
85
Tr. 1/38.
86
App. br. at 61.
87
Id.; ex. 1 at 1; see tr. 1/241.
88
App. br. at 61 (quoting tr. 1/245).
89
See generally R4, tab 72 at 72-103.
90
R4, tab 72 at 72-103.
91
R4, tab 72 at 64.
17
Second, in its February 12, 2014 claim, ECCI identified the “two categories” of
schedule impacts “that run in parallel tracks to each other as they affected the project
progress”; namely, “the ‘ECP Impacts,’” and “‘Design Delays and Additional Work
Directive Impacts’ (Design Delays),” 92 at least suggesting that both events were on the
project’s critical path.
Third, as the government points out, 93 Lombardia—unlike Mr. Schwartzkopf—
actually analyzed the ECP security changes in relation to the design delay, as the
following example illustrates:
Figure 21 below indicates that during this period, the
project experienced 42 days of Design delay, and 18 days
of ECP delay. These two type [sic] of delays were
occurring concurrent to each other. When this concurrency
is recognized, the critical Design Delays for this period is
quantified as 24 days (42 days of Design Delay – 18 days
of ECP Delay). 94
Aside from not creating any fragnets for the ECP security changes, nowhere
does Mr. Schwartzkopf provide the type or level of comparative analysis of that issue
provided by Lombardia. Although in his expert report he references the ECP security
changes and Lombardia’s analysis, he performs no such analysis of his own, on the
one hand disavowing any opinion upon the issue while on the other actually offering
such an opinion (however half-hearted), but ultimately brushing aside the possibility
that the ECP security changes could have delayed the project:
I have no opinion regarding whether the ECP delays
impacted production on the Project, but to the extent that
there was an impact, it was on construction work, not
design, which was the driving delay to Project completion
until the design was approved in March 2013. Also, any
impact from the security protocols was incorporated into
the schedule via actual dates in the contemporaneous
schedules used for the concurrency analysis. 95
92
R4, tab 72 at 64.
93
Gov’t br. at 29.
94
R4, tab 72 at 86.
95
App. supp. R4, tab 1251 at 137-38 (emphasis added).
18
Finally, Lombardia’s opinion does not address project delays that post-date or
continue beyond the February 12, 2014 claim into which that opinion is incorporated.
But “a proper TIA [would assess] the project schedule from the [notice to proceed] to
completion, and [would have] considered all delays and their impacts to the project
activities.” See Nassar Grp., 22-1 BCA ¶ 38,206 at 185,552 (bracketed material and
emphasis added). In its February 12, 2014 claim, ECCI provides an explanation that
illustrates the limitations of Lombardia’s analysis, and how that analysis may not be
the last word on whether and how the ECP security changes might have affected the
project even after Lombardia completed its work:
The ECP Impacts started to affect the project schedule in
May 2012, continued without interruption, and are still
affecting the project progress as of this writing. Due to the
continuous nature of this impact, the ECP Impact analysis
was performed for each schedule reporting period starting
with the CC15 schedule with the data date of 15 May
2012. It should be noted that, even though the ECP
Impacts were continuing to affect the project progress as
of this writing, the analysis for this REA was performed
through 26 October 2013. The continuing bearings of the
ECP Impacts after 26 October 2013, can be quantified
starting with the 27 October 2013 progress schedule
update. 96
The implications of that qualification are that Lombardia’s analysis cannot be
relied upon to explain the progress of the work after October 26, 2013, and that the
ECP security changes were at least a potential delay event as late as February 12,
2014, which, of course is nearly a year after the government finally approved the
100% communications design on March 14, 2013. Indeed, despite the suggestion in
ECCI’s February 12, 2014 claim that Lombardia’s analysis is helpful only through
October 26, 2013, a passage in that claim at least hints that the ECP security changes
might have “driven” delay of the project after that date, and perhaps, as ECCI alleged
in its complaint in this appeal, “through the end of the project”:
Delays Incurred After 10/26/13
As of 10/27/13, per the schedule update CC71 with the
data date of 10/27/13, the ACMILE0040 project
completion milestone was projecting a 12/24/13
96
R4, tab 72 at 64 (emphasis added).
19
completion date. This completion date signifies a [sic]
58 days of remaining contract work as of 10/27/13. To our
knowledge, the ECP impacts continued to affect the
production rates in the field after 10/26/13. If the average
30% production loss rate of September and October 2013
would be applied to this remaining 58 days of work, the
ECP delays would be accountable for another 18 days.
...
This 18 days of additional delay, on top of the
301 days of delay quantified through 10/26/13, would
adjust the Contract Completion Date as 1/7/2014. There
were additional “Design delays” impacts during this
timeframe as well. These include the half of the
Additional Communications Installation Work, Legrand
Floor Boxes, Dedicated Communications Rooms Electrical
Panels, and HVAC Start Up and Commissioning Expert
Ban. Conservatively estimating that these issues delayed
the project critical path 10 days in addition to the
continuing ECP 18 day delay results in an additional
28 day delay during the months of November 2013 through
February 2014. 97
Moreover, the project was not substantially completed until April 19, 2014,
some four months after Lombardia completed its delay analysis, and some two months
after ECCI presented its February 12, 2014 claim to the contracting officer.
All of this is to say that there is evidently more to the ECP security changes
than Mr. Schwartzkopf gave credit, and that in view of ECCI’s loss (at least in its
estimation, perhaps) upon the ECP security changes issue, Mr. Schwartzkopf decided
not to analyze that issue as a potential project delay, and ECCI decided not to pursue it
as such. Indeed, the government alludes to this, saying that “after receipt of the
Board’s [summary judgment] Opinion, ECCI realized that it had to eliminate its
security delay claim in order to maximize its request for delay damages,” 98 and that
Mr. Schwartzkopf “entirely failed to include fragnets showing delays caused by the
change in security posture.” 99 ECCI counters that “[a]t no time has [ECCI] asserted
97
R4, tab 72 at 103 (emphasis added).
98
Gov’t br. at 26.
99
Gov’t br. at 29.
20
that security delays were the driving or critical delays on the [] project,” 100 but that
misses, perhaps deliberately, the point that prior to our opinion regarding the ECP
security changes, ECCI relied upon a delay opinion—Lombardia’s—that created
fragnets to analyze the potential delay effect upon the project of the ECP security
changes, and that after our ECP security change opinion, ECCI abandoned
Lombardia’s opinion, and relied upon a new opinion—Mr. Schwarzkopf’s—that
created no fragnets for the ECP security changes. We determine that
Mr. Schwarzkopf’s opinion is fatally tainted by litigation bias in favor of ECCI. For
all these reasons, we find not credible, and we reject, Mr. Schwartzkopf’s delay
opinion, as well as, with the exception set forth below, ECCI’s delay claim itself. 101
C. The government admits that the 100% communications design issue
delayed the project
Although Mr. Schwartzkopf’s opinion is not credible, ECCI points out that the
government, in the persons of COR Vanoer and ACO Long, communicated to ECCI
by letter that the issues with the 100% communications design were delaying the
project. 102 Mr. Vanoer, wrote his letter on November 16, 2012; Mr. Long on
December 6, 2012. 103 The government says that “[t]he communications redesign was
never shown to cause an actual delay to construction,” 104 but does not address the
statements of Mr. Vanoer and Mr. Long. 105 We determine these are admissions
against the government’s interest that the delay in approving the
100
App. reply at 15.
101
The government’s expert, Mark Doran, also did not assign a fragnet to the ECP
security changes: Mr. Doran explained that because of our opinion upon
summary judgment, his report “does not address any claims regarding alleged
delays as a result of the relocated entry control point (ECP) and associated
revised security procedures” (R4, tab 1168 at 5). As the government at least
implies with respect to Mr. Shwartzkopf’s opinion, Mr. Doran’s decision not to
analyze the ECP security changes renders his delay opinion also not credible.
102
App. br. at 17 ¶ 74; app. reply at 11; R4, tabs 367, 384.
103
R4, tabs 367, 384.
104
Gov’t br. at 39.
105
The government does say, however, that “the contemporaneous documentation,
created during performance of the Contract, is the most reliable source of fact
for events occurring on the Project” (gov’t sur-reply at 4). Along those lines, a
November 1, 2012, government information paper states that the project “has
had significant delays due to design changes” and “user requested changes”
(which we take as a reference to government-requested changes), in addition to
“contractor inefficiencies” (app. supp. R4, tab 755 at 3(b)(1); tr. 6/108-09).
21
100% communications design delayed project completion, such delay beginning no
later than November 16, 2012. Furthermore, we draw the reasonable inference that the
delay was critical path delay, because we expect that Mr. Vanoer, and, particularly,
Mr. Long, the contracting officer, would not have informed ECCI that the design delay
was delaying the project—a position that neither has recanted or otherwise explained
away—if that were not the case. 106 See generally Raytheon Co., ASBCA No. 57743 et
al., 16-1 BCA ¶ 36,335 at 177,147 (distinguishing between evidentiary admissions and
judicial admissions); cf. Reliable Contracting Grp. v. Dep’t of Veterans Affairs,
779 F.3d 1329, 1334-35 (Fed. Cir. 2015) (contractor’s contemporaneous admissions
were “probative evidence that generators did not comply with the contract” (citations
omitted)); ITT Gilfillan Div., ASBCA No. 37834, 92-1 BCA ¶ 24,490 at 122,227-28
(statement in Turkish Air Force report that radar was “operational but degraded” was
admission against interest proving radar was capable of passing contractually-required
operational test); Milam Builders, Inc., ASBCA No. 29700, 85-1 BCA ¶ 17,709 at
88,376 (“Appellant has claimed $1,573 although its evidence did not establish this
amount; accordingly, the amount estimated by the Government will be considered an
admission against interest. Appellant is therefore entitled to $1,542.”); Phillips
Constr. Co., ASBCA No. 5831 et al., 70-2 BCA ¶ 8,363 at 38,893 (“The testimony of
75 days delay was therefore in the nature of an admission against interest or at least in
diminution of appellant's principal case.”); Larco-Indus. Painting Corp., ASBCA
No. 14647 et al., 73-2 BCA ¶ 10,073 at 47,325 (“In an admission against interest,
Mr. Parks before his departure on 11 December 1969 from Fort Chaffee told
Mr. Roberts that respondent had as much of a problem with personnel as did the
contractor . . . [w]e accept his appraisal.”). We also find that the delay began on
November 16, 2012, when the government first admitted that the lack of an approved
communication design was causing delays to the project, and ended on March 14,
2013, when the government finally approved the 100% communications design: a
period of 119 days, fewer than the 290 days that ECCI seeks. 107
106
We have already found not credible the opinion of Mr. Doran. We further conclude
that with respect to whether the delay in approving the 100% communications
design delayed project completion, that opinion is otherwise unhelpful.
Mr. Doran opined that the 100% design delay ended on December 16, 2011,
and that, “[t]herefore, [the] 100% Design Review did not delay the Project”
(R4, tab 1168 at 49). Even ACO Long stated that, as late as December 6, 2012,
the communications design was delaying the project (R4, tab 384 at 1).
Although Mr. Doran testified at the hearing, he did not address Mr. Long’s
statement. Tr. 7/6-207.
107
App. br. at 60; see tr. 8/115-16.
22
However, for purposes of determining compensable delay, we must also
consider concurrent delay not attributable to the government; consequently, we take
into account our opinion upon summary judgment, affirmed by the Court of Appeals,
that the ECP security changes were not compensable, and that, prior to that opinion,
ECCI admitted that from September 29, 2010, through October 26, 2013 (a period of
1,124 days), “the project experienced 205 days of ECP [security changes] delays, and
a total of 389 days of Design delays of which 205 days were concurrent to the ECP
delays.” 108 Because those 205 days of concurrent, non-government delay exceed what
we determine are not 389 days but only 119 days of design delay, we determine that
ECCI is not entitled to any compensable delay.
D. Whether the 100% communications design delay is nevertheless
excusable
The question is whether despite failing to prove entitlement to compensable
delay, ECCI is entitled to remission of liquidated damages because of excusable delay
on the same facts. 109 The contract includes (Federal Acquisition Regulation)
FAR 52.249–10, DEFAULT (FIXED–PRICE CONSTRUCTION) (APR 1984), which
provides, at (b)(1): “[t]he Contractor’s right to proceed shall not be terminated nor the
Contractor charged with damages under this clause, if—[t]he delay in completing the
work arises from unforeseeable causes beyond the control and without the fault or
negligence of the Contractor.” 110 ECCI has the burden of establishing by a
preponderance of the evidence the existence of any such excusable delay. 111 See
Sauer, 224 F.3d at 1347. ECCI says that “the question is not whether [the
government] was correct in [its] objections to ECCI’s design, but rather, did [the
government] act in a timely and reasonable manner.” 112 In apparent reliance upon
section 3.9.2 of the contract, 113 ECCI says that it submitted its 100% communications
design “under the reasonable belief that only the comments made to the 95% design
required response, based on the Contract.” 114 In essence, ECCI argues that so long as
its 100% “cleared for construction” design review submittal incorporated the
“government review comments” generated by the government’s review of the
95% “final design review submittal,” section 3.9.2 required that its
108
R4, tab 72 at 65-66 (emphasis added).
109
App. br. at 110-11, app. reply at 4.
110
R4, tab 5 at 105-06.
111
Although ECCI does not express it as such, we regard its request for remission of
liquidated damages as including by way of excusable delay.
112
App. br. at 38.
113
App. br. at 6 ¶ 31.
114
App. br. at 66 ¶ 170.
23
100% communications design review submittal be approved, and cleared for
construction.
We agree. Section 3.9.2 provides that “[t]he only effort remaining between the
FINAL DESIGN REVIEW SUBMITTAL and the ‘CLEARED FOR
CONSTRUCTION’ DESIGN REVIEW SUBMITTAL is the incorporation of the
Government Review Comments.” 115 That section does not contemplate or authorize
months more of back-and-forth between the government and the contractor in which
the government presents dozens if not hundreds of additional, new design comments
that the contractor must analyze and respond to as a condition of approval of its
100% design, and clearance for construction. In response to ECCI’s 95% design
submission, the government made 56 comments, on the communications design. 116
When ECCI responded with a 100% communications design that incorporated those
56 comments, ECCI was entitled to the approval of that design, and clearance for
construction. Instead, the government responded with 226 new comments, 117
triggering a delay period that we conclude is attributable to the government.
The government says:
[section 3.9.2] is not relevant to the contractor’s remaining
effort after submission of the 100% [communications]
design and upon receipt of the government’s 100%
[communications] design comments. The contractor’s
incorporation of the government’s 95% design comments
did not relieve ECCI of its responsibility to submit designs
in strict conformance with the contract, nor prohibit the
government from requiring correction to non-compliant
design or construction during any phase of the contract. 118
The government also cites section 3.7.1, which provides that “[t]he work under
contract will be subject to continuous review by representatives of the Contracting
Officer.” 119 The government further cites section 3.7.4, “Government Review,” which
provides that:
115
R4, tab 5 at 251 (capitalization in original, italicized emphasis added).
116
R4, tab 742; tr. 8/97-98.
117
Tr. 8/97-98.
118
Gov’t br. at 18-19 (emphasis omitted).
119
Gov’t br. at 69-70 ¶ 84 (citing R4, tab 5 at 247).
24
The contractor shall not begin construction work until the
Government has reviewed the contractor’s design and has
cleared it for construction. Clearance for construction does
not mean Government approval. 120
We agree that “clearance for construction” is not immunity from further
government review. In addition to the sections that the government cites, section
1.2.1, “Design Submittals,” provides that “[c]learance for construction shall not be
construed as meaning Government approval,” and that, “[u]nless otherwise indicated,
the risk for the design is the sole responsibility of the Design-Build Contractor.” 121
Nevertheless, the question here is whether ECCI, having incorporated the
government’s comments in response to it 95% design, was entitled to approval of its
100% communications design, and the clearance for construction that goes with it.
(Indeed, section 3.8.5 of the contract, Commencement of Construction, provides that
“[c]onstruction of work may begin after receipt of the clearance for construction
(Notice to Proceed) for each design phase.) 122 The answer pursuant to section 3.9.2 of
the contract is yes. 123 We will not speculate upon what would have been the case had
the government timely approved the 100% communications design (as submitted on
November 19, 2011), thus clearing that design for construction, and only thereafter
interjected new comments raising issues with that design. 124
If the answer were otherwise, section 3.9.2 would be merely aspirational; the
position that the government expressly took during the hearing of these appeals, but
notably does not assert in its post-hearing briefing. 125 We do not regard section 3.9.2
as aspirational; that provision is not “too amorphous to provide any basis to identify
120
R4, tab 5 at 247-48; see gov’t br. at 16.
121
R4, tab 5 at 232 (emphasis added).
122
R4, tab 5 at 250 (emphasis added).
123
Contract interpretation aside, as a practical matter, as ECCI points out (app. reply
at 32), the designer whom ECCI hired for the project testified that “[t]here is no
reason why any of [the government’s] substantive 100% design review
comments should not have been given on the 95% design submittal.” Ex. 11
at 2, 8. The government does not address that statement.
124
ECCI invokes the duty of good faith and fair dealing in support of its
section 3.9.2 argument (app. br. at 42-43). In view of our conclusion here, we
need not address that issue. Consequently, the government’s October 16, 2020
motion to exclude or strike that invocation, which the government repeats in its
December 21, 2020 post-hearing sur-reply brief (gov’t sur-reply at 29), is
denied as moot.
125
See tr. 4/108, 230; tr. 6/16.
25
concrete obligations.” Kellogg Brown & Root Servs., Inc., ASBCA Nos. 59385,
59744, 20-1 BCA ¶ 37,656 at 182,827. Rather, section 3.9.2 speaks in precise terms.
Thomas Jefferson Univ. Hosp. v. Shalala, 512 U.S. 504, 517 (1994) (rejecting
contention that regulation’s language was “precatory” or “aspirational,” and “thus
lacking in operative force” where it “speaks not in vague generalities but in precise
terms”).
For these reasons, we conclude that ECCI is entitled to an excusable delay of
119 days from November 16, 2012, thorough March 14, 2013, for the government
having delayed the project by delaying the approval of the 100% communications
design, at $2,338.99 per day, for a total of $278,339.81 in remitted liquidated damages.
We have considered the government’s other, related points on this issue, 126 and are not
persuaded by them, including because many of those points relate to events occurring
before Mr. Vanoer and Mr. Long made their statements in late 2012. The government
also points to statements of ECCI in early 2014, regarding other potential delays that
the government apparently attributes to ECCI, but does so without adequately, if at all,
identifying the specific periods of such delay. 127 None of this changes our conclusion
that ECCI is entitled to the remission of 119 days of liquidated damages for excusable
delay. Moreover, we do not regard this conclusion as precluded by our summary
judgment opinion regarding the ECP security changes. We note that ECCI’s
February 12, 2014 claim to the contracting officer for 329 days of delay preceded the
contracting officer’s April 9, 2014 assessment of liquidated damages, and that the
government has represented that the Board possesses jurisdiction to entertain ECCI’s
claim for remission of liquidated damages. 128
III. Defense Base Act (DBA) Insurance Premium Payments
ECCI requests $174,124 for allegedly unpaid Defense Base Act (DBA)
insurance premiums. 129 Specifically, ECCI says:
Throughout performance of the contract, ECCI and
subcontractor Garda World paid DBA insurance premiums
to Rutherford. Audits of ECCI’s and Garda World’s
advance premium payments determined that ECCI had
paid premiums in excess of the premiums actually due in
126
Gov’t br. at 33-37.
127
Gov’t br. at 38.
128
Gov’t May 11, 2021 filing at 6.
129
App. br. at 29.
26
the amount of $42,162, which was refunded to [the
government] instead of ECCI.
Throughout performance of the contract, ECCI was paid
$145,415 by [the government], compared to the $277,377
in audited actual premium payments made by ECCI and
Garda World. Considering the $277,377 in audited
premium payments excludes the $42,162 that had been
paid by ECCI but refunded to [the government, the
government] has underpaid ECCI $174,124 for DBA
insurance premiums. 130
The government says that we lack jurisdiction to entertain ECCI’s DBA claim
because, it says, ECCI has not presented that claim to the contracting officer. 131 ECCI
points to several pages of its February 12, 2014 claim to the contracting officer that
appear to consist of spreadsheets that list costs, including DBA costs. 132 However,
ECCI does not quote or even reference any language in that claim that explains to the
contracting officer that ECCI has paid DBA premiums in excess of premiums actually
due, which excess was refunded to the government instead of to ECCI, and is due to
ECCI. Consequently, ECCI’s DBA claim is dismissed for lack of jurisdiction. See
41 U.S.C. § 7103(a).
IV. Constructive Acceleration
During the hearing, counsel for ECCI described the status of ECCI’s
acceleration claims:
The phase [sic] completion originally had damages in the
delay claim, [ASBCA No. 59586], I think it was, related to
additional management that came from the phase
completion acceleration. There is [sic] damages in that
one because of that event.
Then the directive cost claim, [ASBCA No. 59643], it has
damages associated with the requirement to change HVAC
suppliers and air freight in those materials to meet these
phase completions. Those two claims still have a phase
130
App. br. at 29 ¶¶ 146-47 (citations omitted).
131
Gov’t br. at 46.
132
App. reply at 44.
27
completion damage component. [ASBCA No.] 60284 was
a claim for phase completion, but it had separate damages
related to multiple re-commissioning and mobilizing
HVAC testers. That one has been dropped. 133
Counsel for the government agreed with that explanation. 134 However, we are
not bound by the parties’ representations; indeed, the Board has an obligation to satisfy
itself of its own jurisdiction. See Weeks Marine, Inc. v. United States, 575 F.3d 1352,
1359 (Fed. Cir. 2009).
A. Jurisdiction
The government says that we are without jurisdiction to entertain the
acceleration claim that ECCI presents to us, because, the government says, that claim
has not been presented to the contracting officer. 135 The Board does not possess
jurisdiction, within a given appeal, to entertain a claim that is new to the appeal. Env’t
Chem. Corp., ASBCA No. 58871, 15-1 BCA ¶ 36,110 at 176,286-87. However, rigid
adherence to the exact language or structure of the original claim is not required. Id.
The Board possesses jurisdiction to entertain claims that arise from the same operative
facts as those presented to the contracting officer, claim essentially the same relief, and
merely assert differing legal theories for that recovery. Id. New or modified
allegations that do not change the operative facts of the claim to the contracting
officer, or change the essential nature of those facts, do not constitute a new claim. Id.
And an area of costs in addition to those requested of the contracting officer but
related to the operative facts of the claim presented to the contracting officer is within
our jurisdiction. See Am. Consulting Servs., Inc., ASBCA No. 52923, 00-2 BCA
¶ 31,084 at 153,485; Miller Elevator Co. v. United States, 30 Fed. Cl. 662, 701
(1994).
In its February 12, 2014 claim to the contracting officer (which claim is the
predicate for this appeal, ASBCA No. 59586), ECCI presented a constructive
acceleration claim that consists of assertions that the government: (1) delayed the 95%
and 100% design process; (2) held ECCI to the original schedule; (3) directed extra-
contractual work; (4) issued unsatisfactory interim performance ratings; (5) assessed
liquidated damages; (6) criticized ECCI for allegedly being late; 136 and (7) “directed
133
Tr. 5/87.
134
See tr. 5/87.
135
Gov’t br. at 43-44.
136
R4, tab 72 at 9.
28
the acceleration of the turnover of Building I” 137 and the “phase[d] . . . turnover of
facilities.” 138 ECCI alleged that those actions “forced ECCI to augment staff to
manage the extensive security efforts and additional work,” 139 and that “subsequent to
the Government’s direction to accelerate and phase the turnover of facilities, ECCI
determined it was unable to use the approved Carrier brand [HVAC units] and had to
switch to more expensive Aaon and Trane units in order to meet the directed
accelerated and phased turnover of facilities.” 140
By comparison, in its briefing to the Board in this appeal, ASBCA
No. 59586, 141 ECCI sets forth an acceleration claim consisting of the following
assertions: (1) “[b]ecause of the late issuance of modifications for time extensions,
ECCI accelerated performance, including air freighting Pre-Engineered Buildings and
HVAC equipment,” and by adding additional management staff, 142 (2) “[i]n early
2013, [the government] . . . directed ‘phased completion’ and sequenced handover of
buildings; this accelerated the project, 143 (3) “ECCI notified the government that [the
government’s] direction for phased completion had accelerated ECCI’s schedule and
was a change,” 144 (4) the government directed ECCI to meet accelerated phased
completion dates, 145 (5) because of the “direction to accelerate and handover buildings
out of sequence,” ECCI “switch[ed] HVAC suppliers and airfreight[ed] equipment,”
and “[m]obiliz[ed] significantly more management staff to focus on priority
buildings”; 146 and (6) “ECCI provided notice that it was being accelerated, and
incurred additional costs to air freight PEBs and add management resources, which
were necessary to meet the unreasonably short schedule.” 147
137
R4, tab 72 at 48, 62-63.
138
R4, tab 72 at 161.
139
R4, tab 72 at 11.
140
R4, tab 72 at 45. ECCI went on to say that “[t]his issue will be addressed in a
follow-on [Request for Equitable Adjustment] for the construction costs
associated with the Government’s improper direction to change the
requirements of the contract. Only the costs associated with the delays
discussed above are included in this REA.” Id.
141
ECCI sets forth additional acceleration allegations in ASBCA No. 59643. See app.
br. at 86-87.
142
App. br. at 19-20 ¶¶ 81, 87 (citations omitted).
143
App. br. at 19 ¶ 83 (citations omitted).
144
App. br. at 19 ¶ 85 (citations omitted.
145
App. br. at 19 ¶ 86 (citations omitted).
146
App. br. at 19 ¶ 87 (citations omitted).
147
App. br. at 64. We understand the term “PEB” to refer to “Pre-Engineered
Building.”
29
Distilling the assertions recited above, we conclude that the constructive
acceleration claim set forth in ECCI’s February 12, 2014 claim and its post-hearing
briefing share the following same set of operative facts: that the government directed
the phased turnover, handover, or completion of the buildings to be constructed,
causing ECCI to increase management staff and purchase alternative air conditioning
equipment. 148 Because, except for this “phased handover” element, the two claims are
not based upon the same set of operative facts, we possess jurisdiction in this appeal to
entertain only the phased handover claim. Consequently, all but the phased handover
claim—the remainder having to do with an alleged government-directed requirement
to use UL-listed refrigerant—is dismissed for lack of jurisdiction. We further
conclude that ECCI’s specific requests here for compensation for having air-freighted
HVAC equipment and PEBs are related to the operative facts of the constructive
acceleration claim presented to the contracting officer, and so are within our
jurisdiction. 149
B. Merits
Regarding the merits of ECCI’s phased-turnover constructive acceleration
claim, constructive acceleration often occurs when the government demands
150
compliance with an original contract deadline, despite excusable delay by the
contractor: a contractor must prove that: (1) the contractor encountered a delay that is
excusable under the contract; (2) the contractor made a timely and sufficient request
for an extension of the contract schedule; (3) the government denied the contractor’s
request for an extension or failed to act on it within a reasonable time; (4) the
government insisted on completion of the contract within a period shorter than the
period to which the contractor would be entitled by taking into account the period of
excusable delay, after which the contractor notified the government that it regarded the
alleged order to accelerate as a constructive change in the contract; and (5) the
contractor was required to expend extra resources to compensate for the lost time and
remain on schedule. IAP Worldwide Servs., Inc., ASBCA Nos. 59397, et al., 17-1
148
The government does not, in reliance upon the February 24, 2020 dismissal of
ASBCA No. 60284 with prejudice, assert any affirmative defense to ECCI’s
assertion in this appeal of a phased-turnover acceleration claim.
149
We note that in its May 2, 2014 claim to the contracting officer and in ASBCA
No. 59643, ECCI also seeks the cost of airfreighting HVAC units. See app. br.
at 82 ¶ 256; R4, tab 75 at 7.
150
App. br. at 62-64; gov’t br. at 44-45, 118.
30
BCA ¶ 36,763 at 179,158. The government apparently contests only the fourth and
fifth of those elements, effectively conceding the first three. 151
1. Air-Freighting PEBs
Presumably regarding whether ECCI was required to expend extra resources to
compensate for the lost time and remain on schedule, and specifically concerning the
air-freighting of PEBS, the government points the finger at ECCI, saying that ECCI’s
subcontractor did not order the PEB buildings “in a timely manner, left the site in
November 2011, and was terminated by ECCI in December 2011.” 152 ECCI does not
address that contention. 153 On September 4, 2011, ECCI informed its subcontractor,
Folad Masih Co. (FMC), that ECCI was concerned with FMC’s progress regarding
Pre-Engineered Buildings (PEBs). 154 On October 4, 2011, ECCI wrote again to FMC
of ECCI’s concerns with FMC’s progress. 155 On November 27, 2011, ECCI informed
FMC that PEBs would be “removed and terminated” from FMC’s subcontract. 156 On
December 10, 2011, ECCI terminated FMC’s contract, stating that “FMC[’]s lack of
performance to date on the awarded contract has prevented ECCI from competing the
associated tasks that were awarded and has significantly delayed the project activities
that are required to complete the project in a timely manner.” 157 ECCI does not, in this
appeal, address FMC’s performance; consequently, we are not persuaded that
government constructive acceleration was responsible for ECCI air freighting PEBS to
Afghanistan, and we deny this component of ECCI’s constructive acceleration claim.
2. Air-Freighting HVAC Equipment
With respect to ECCI’s claim that government-caused constructive acceleration
required ECCI to air-freight HVAC equipment, ECCI’s post-hearing briefing does not
identify any amount for that claim. The government points us to an ECCI spreadsheet
presented during the hearing, 158 which lists $372,796 for “air shipment,” but identifies
that amount as for “Airshipment of PEB.” 159 ECCI having failed to identify a specific
151
See gov’t br. at 42.
152
Gov’t br. at 42 ¶ 51.
153
App. br. at 41-43.
154
R4, tab 164 at 1.
155
R4, tab 945.
156
R4, tab 947 at 1.
157
R4, tab 948.
158
Gov’t br. at 2, 42 ¶ 49; tr. 1/290; see app. supp. R4, tab 305.
159
App. supp. R4, tab 305.
31
dollar amount for air-freighting HVAC equipment, that claim is denied. See ESCgov,
Inc., ASBCA Nos. 61358 et al., 17-1 BCA ¶ 36,772 at 179,189.
CONCLUSION
We have considered the parties’ other arguments and find them unnecessary to
address. We dismiss for lack of jurisdiction ECCI’s claims for additional
compensation for (1) allegedly unpaid Defense Base Act (DBA) insurance payments,
and (2) the claim that an alleged government-directed requirement to use UL-listed
refrigerant constructively accelerated contact performance. The appeal is otherwise
sustained in part and denied in part: ECCI is awarded $278,339.81, plus interest in
accordance with 41 U.S.C. § 7109, from February 12, 2014, the putative date that the
contracting officer received ECCI’s claim, until the date of payment.
Dated: April 18, 2025
TIMOTHY P. MCILMAIL
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
OWEN C. WILSON MICHAEL N. O’CONNELL
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
32
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: April 18, 2025
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
33