ASBCA 60484

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) ECC International, LLC ) ASBCA No. 60484 ) Under Contract No. W5J9LE-11-C-0045 ) APPEARANCES FOR THE APPELLANT: R. Dale Holmes, Esq. Michael A. Richard, 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. Matthew S. Tilghman, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Middle East Winchester, VA OPINION BY ADMINISTRATIVE JUDGE WOODROW ON THE PARTIES' CROSS-MOTIONS FOR SUMMARY JUDGMENT Pending before the Board are the parties' cross-motions for summary judgment filed by appellant, ECC International, LLC (ECCI), and the United States Army Corps of Engineers (USACE or government). ECCI seeks summary judgment on entitlement to its monetary claim for costs arising out of the government's closure of the Friendship Gate, an access route to ECCI's construction site on Camp Shorab in Afghanistan. The government moves for summary judgment on the grounds that the government's closure of Friendship Gate was a sovereign act and ECCI assumed the risk of any changes to base access procedures or requirements. We hold that the plain language of the contract states that the contractor bears the risk of changes to base access requirements and that the closure of Friendship Gate was not a constructive change to the terms of the contract. We further hold that the government did not create an implied warranty of access through Friendship Gate, and that ECCI's previous contracts at Camp Shorab in Afghanistan did not create an implied warranty of continued access to the project site through Friendship Gate. We do not reach the government's affirmative defense that the closure of the Friendship Gate was a sovereign act, because we have concluded that there is no express or implied contractual right of access through the Friendship Gate and that the closure of Friendship Gate was not a constructive change. Therefore, we grant the government's motion for summary judgment and deny the appeal. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS A. The Contract 1. On June 29, 2011, USACE issued Solicitation No. W5J9LE-l l-B-0004 (solicitation) requesting proposals from prospective bidders for the site adapt, design and construction of the 215th compound expansion, Camp Shorab, Helmand Province, Afghanistan (R4, tab 3 at 1). 2. The solicitation contained the following provision relating to compliance with orders relating to force protection: · C3 CLAUSE 952.225-0002 ARMED PERSONNEL INCIDENT REPORTS (SEP 2010) (a) All contractors and subcontractors in the United States Forces-Iraq (USF-I) or United States Forces-Afghanistan (USFOR-A) theater of operations shall comply with and shall ensure that their personnel supporting USF-I or USFOR-A forces are familiar with and comply with all applicable orders, directives, and instructions issued by the respective USF-I or USFOR-A Commanders relating to force protection and safety. (R4, tab 3 at 50) 3. Section 01040 of the solicitation contained the following provision relating to security in a wartime contingency environment: 1.0 SPECIFIC CONTRACT SECURITY ASSESSMENT The Contractor will construct the Project in an active war zone where International Security Assistance Forces (ISAF) may conduct offensive and defensive operations against a variety of hostile forces, to include members of the Taliban. The Contractor understands that it may not receive any 2  support whatsoever in securing the Project site and in securing the transportation of materials to the Project site. (R4, tab 3 at 170) 4. Section O1040 of the solicitation further stated that the contractor is responsible for its own security and securing the transportation of materials to the project site. "Neither U.S.