Summary
The Armed Services Board of Contract Appeals issued a per curiam opinion resolving a dispute between ECC International Constructors, LLC and the U.S. Army over a design-build contract for a military compound in Afghanistan. The appellant alleged government-caused delays due to improper design reviews and site security changes, seeking monetary damages and remission of liquidated damages. The Board found the appellant's expert delay report not credible for omitting key security change issues from its analysis and addressed jurisdictional and substantive claims regarding design submittals and liquidated damages.
Topics
Practice areas
Questions Presented
- Whether the contractor's claims for delay caused by review of the 100% communications design, increased communications outlets, and dedicated electrical panels were within the Board's jurisdiction because they had been presented to the contracting officer.
- Whether the contractor proved entitlement to compensable government-caused delay damages.
- Whether the contractor was entitled to remission of liquidated damages for 119 days of excusable delay caused by the government's delayed approval of the 100% communications design.
- Whether the contractor's claim for unpaid Defense Base Act insurance premiums had been presented to the contracting officer.
- Whether the constructive-acceleration claim was within the Board's jurisdiction and, if so, whether the contractor proved constructive acceleration damages.
- Whether the contractor's claim concerning allegedly improper review of the 95% design submittal was waived or abandoned.
Holdings
- The Board had jurisdiction over the claims for delay allegedly caused by review of the 100% communications design, increased electrical outlets, and dedicated electrical panels because those matters were presented in the contractor's February 12, 2014 claim to the contracting officer.
- The contractor was not entitled to compensable delay damages because it failed to prove compensable critical-path delay free from concurrent noncompensable delay.
- The Board rejected the contractor's delay expert's opinion as not credible and intrinsically unpersuasive.
- The contractor was entitled to an excusable delay of 119 days and remission of $278,339.81 in liquidated damages.
- The Board lacked jurisdiction over the contractor's claim for $174,124 in allegedly unpaid Defense Base Act insurance premiums because the claim had not been presented to the contracting officer.
- The Board had jurisdiction only over the phased-turnover portion of the constructive-acceleration claim; the remaining allegations concerning a government-directed UL-listed-refrigerant requirement were new claims outside the appeal's jurisdiction.
- The contractor failed to prove entitlement to constructive-acceleration damages for air-freighting pre-engineered buildings or HVAC equipment.
Key quotations
“The answer pursuant to section 3.9.2 of the contract is yes.” (25)
“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.” (26)
“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.” (32)
Factual background
The government awarded ECC International Constructors a design-build contract to construct a 20-building military compound in Afghanistan. The government approved the contractor's 95% communications design with 56 comments, but rejected the subsequent 100% submission with 226 new comments and did not approve the communications design until March 14, 2013. The contractor claimed that government-caused design delays, directed changes, security changes, acceleration, and other matters caused project delay and increased costs; the government withheld liquidated damages for 402 days. The Board found the contractor's principal delay expert not credible because he omitted entry-control-point security changes from his fragnet-based analysis, but found that the government had admitted that the 100% communications-design review delayed the project for 119 days.
Procedural history
ECC International Constructors, LLC presented a February 12, 2014 claim to the contracting officer seeking $13,519,913.91 and 329 days of delay. After the claim was not decided within the statutory period, the contractor appealed to the Board, which docketed the appeal as ASBCA No. 59586. The Board previously granted the government's partial summary judgment concerning entry-control-point security changes, and the Federal Circuit affirmed that ruling. After a two-week hearing in 2020, the Board sustained the appeal in part, denied it in part, dismissed portions for lack of jurisdiction, and awarded $278,339.81 plus interest.