ECC International Constructors, LLC

ARMED SERVICES BOARD OF CONTRACT APPEALS
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE GOVERNMENT’S
PARTIAL MOTION TO DISMISS FOR LACK OF JURISDICTION
The government moves for the dismissal of parts of the appeal for lack of
jurisdiction, saying that appellant, ECC International Constructors, LLC (ECCI), did not
provide sums certain for what the government (U.S. Army Corps of Engineers or
USACE) says are separate claims.
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 May 2,
2014, ECCI submitted to the contracting officer a demand for $3,767,856.32 “for the
design, procurement, logistics and construction cost impacts directly attributable to the
extra work caused and directed by the Government during execution of the project,” more
specifically: (1) design costs; (2) material procurement, shipping and labor costs
associated with communications systems; (3) material procurement, shipping and labor
costs associated with electrical systems; (4) material procurement, shipping and labor
costs associated with heating ventilation and air conditioning (HVAC) systems; and
(5) miscellaneous extra work (R4, tab 75 at 6). The submission further breaks the
Appeal of - 	)
)
ECC International Constructors, LLC 	) 	ASBCA No. 59643
)
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.
Kathryn G. Morris, Esq.
Matthew Tilghman, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Middle East
Winchester, VA

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$3,767,856.32 demand amount into 23 direct cost items totaling $3,212,831.76, before
adding general and administrative costs, fee, and bond, to arrive at the claimed total
amount of $3,767,856.32 (R4, tab 75 at 55, 77-78). The government challenges the
Board’s jurisdiction to entertain nine of those direct cost items: (1) Additional Outlets
and Changed Configurations; (2) Additional and Changed Flexible Metal Conduit;
(3) Legrand Raised Floor Communications Outlets; (4) 144 Port Fiber Optic
Combination Units; (5) Trunk and Splice OSP Configuration, (6) Changed Direction
Regarding Design and Provision of Uninterruptible Power Supply (UPS) System;
(7) UL/R410 HVAC and Change to Accommodate Schedule; (8) Server Cabinets and
Relay Racks; and (9) Additional Ladder Rack and Cable Tray (gov’t mot. at 4-5).
1. 	Additional Voice/Data and Printer Outlets and Changes to Configuration of
Non-Office Outlets
In its submission to the contracting officer, ECCI makes a single request for
$989,042.80 for (at least): (1) the government’s alleged “direction to ‘round up’ the
number of outlets in each space determined by dividing the floor area of a particular
office by the [contract] outlet density when the calculation resulted in less than a whole
number”; (2) the government’s alleged direction to provide “two voice and two data
connectors” every 4.5 square meters of floor area in certain office spaces; (3) the
government’s alleged direction “to provide a standard ‘Office’ wall outlet with two voice
and two data outlets in a six-plex plate in all non-office spaces”; (4) the government’s
alleged direction that “raised access floor areas in the [Tactical Operations Center (TOC)]
be equipped with one Secure, one Above Secret and one Non-Secure raised floor box per
4.6 square meters of raised floor area”; and (5) the government’s alleged direction that
ECCI provide additional non-Secure and Secure printer outlets (R4, tab 75 at 15-18).
a. 	Rounding Up
With respect to “rounding up,” ECCI in its submission to the contracting officer
states:
The communications systems design reviewer directed that all
room outlet calculations need to be reviewed to “ensure the
number meets the requirements of [the contract].” A follow
up review conference revealed that the reviewer was insisting
on implementation of his interpretation of the contract
requirements regarding the number of outlets required in each
building. Essentially, he was directing that the outlets density
provisions in [the contract] be implemented with complete
disregard of other applicable contract provisions or
conditions. This included his direction to “round up” the
number of outlets in each space determined by dividing the

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floor area of a particular office by [the contract] outlet density
when the calculation resulted in less than a whole number.
(R4, tab 75 at 15)
b. 	Two Voice and Two Data Connectors Every 4.5 Square Meters
With respect to two voice and two data connectors every 4.5 square meters of
floor area in certain office spaces, ECCI states:
The I3A (Department of the Army, Technical Criteria for the
Installation Information Infrastructure Architecture),
Paragraph 2.3.5.2, QUARTERS requires an outlet with just
one connector compared to the two connectors in ECCI’s
original design and the four connectors directed by the
Government. The I3A states,
“For U.S. Army barracks projects, provide one 8-pin
modular (RJ45 type) connector in a single gang outlet
faceplate, labeled voice use, and one CATV outlet per
sleeping/living area.”
So the communications system design reviewer’s direction
. . . results in four times the cable and keystone modules
required by the I3A and two times the number proposed in
ECCI’s design.
. . .
So while the Government was directing ECCI install a
barracks communications system costing more than four
times the Army’s normal barracks communication system,
there was apparently no requirement at all. The Government
also directed the same outlet configuration for sleeping rooms
in other buildings . . . .
Similarly, for non-barracks, non-office spaces, the I3A only
requires one voice and one data connector. And finally, the
I3A only requires one outlet with one each voice and one data
connector every 7.5 square meters of floor area in
Headquarters, Administrative and Office spaces as compared
to the 4.5 square meters and two voice and two data

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connectors the communications system design reviewer
directed.
(R4, tab 75 at 16-17 (italics in original))
c. 	Additional Non-Secure and Secure Printer Outlets
With respect to the government’s alleged direction that ECCI provide additional
non-Secure and Secure printer outlets, ECCI states:
[T]he Government communications design reviewer directed
ECCI to provide a standard “Office” wall outlet with two
voice and two data outlets in a six-plex plate in all non-office
spaces. However, the barracks rooms, sleeping rooms in
other buildings, maintenance spaces, game rooms, etc.
throughout the project are not offices, and the contract is
silent regarding the outlet configuration for non-office spaces
except for those with raised computer flooring.
(R4, tab 75 at 16)
d. 	Raised Access Floor Areas in the TOC Be Equipped with One Secure, One
Above Secret and one Non-Secure Raised Floor Box Per 4.6 Square Meters
With respect to the government’s alleged direction that “raised access floor areas
in the TOC be equipped with one Secure, one Above Secret and one Non-Secure raised
floor box per 4.6 square meters of raised floor area,” ECCI states:
The communications system design reviewer also directed
that raised access floor areas in the TOC be equipped with
one Secure, on Above Secret and one Non-Secure raised floor
box per 4.6 square meters of raised floor area, equating to
30 outlet groups in each of the four TOC open work areas,
which have a calculated . . . occupancy of 15. However, the
raised floor boxes described in [the contract] are configured
to service two work stations per floor box. ECCI’s position is
that one floor box was required for every two work stations,
which would number 15. Clearly, it is not the intent of the
contract to install enough outlets to serve 60 work stations in
a space which has a calculated . . . occupancy of 15, nor to
install enough outlets to serve 240 work stations in the small
TOC facility when the design population for the entire project
that includes major 12 non-barracks buildings is just 400.

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(R4, tab 75 at 17 (emphasis in original, alteration added))
e. 	Additional Non-Secure and Secure Printer Outlets
With respect to the government’s alleged direction that ECCI provide additional
non-Secure and Secure printer outlets, ECCI states:
Based on the direction to increase the number of outlets
throughout the project, the communications system design
reviewer also directed a significant increase in the number of
non-Secure printer outlets, based on the voice/ data outlet
increase. The contract requires just 15 Secure printer outlets
for the entire project with the location of both Secure and
non-Secure printer outlets to be provided by the COR
[Contracting Officer’s Representative]. These locations were
not provided by the COR or the communications system
design reviewer until the 3 rd 100% submission. The direction
finally provided resulted in a total of 23 Secure printer outlets
throughout the project compared to the required 15.
(R4, tab 75 at 17-18 (bracketed material added))
We find that the above constitutes at least five sets of materially different,
unrelated operative facts: (1) one concerning the government’s alleged direction to
“round up” the number of outlets in each space; (2) one concerning the government’s
alleged direction to provide two voice and two data connectors every 4.5 square meters of
floor area in certain office spaces; (3) one concerning the government’s alleged direction
“to provide a standard ‘Office’ wall outlet with two voice and two data outlets in a
six-plex plate in all non-office spaces”; (4) one concerning the government’s alleged
direction that “raised access floor areas in the TOC be equipped with one Secure, one
Above Secret and one Non-Secure raised floor box per 4.6 square meters of raised floor
area”; and (5) one concerning the government’s alleged direction that ECCI provide
additional non-Secure and Secure printer outlets.
2. 	Additional and Changed Flexible Metal Conduit
In its submission to the contracting officer, ECCI makes a single request for
$191,328.07 for “additional and changed flexible metal conduits for raised floor
communications outlets” (R4, tab 75 at 19-21). ECCI states that “[c]ommunications
system design reviewer comment 4331500 first insisted the flexible conduit servicing
raised floor communications outlets be UL listed and that ECCI provide an ‘extra’
conduit to each box when there are no such requirements in the contract” (R4, tab 75

6
at 19 (emphasis added)). We find that those constitute two sets of materially different,
unrelated operative facts: one concerning the alleged government insistence that outlets
be UL listed, and one concerning the alleged government insistence that ECCI provide
extra conduit.
3. 	Legrand Raised Floor Communications Outlets
In its submission to the contracting officer, ECCI makes a single request for
$51,471.07 for its Legrand Raised Floor Communications Outlets claim (R4, tab 75
at 21-22). ECCI explained to the contracting officer that:
ECCI’s 100%, [sic] design submissions through 4 January
2013 reflected six gang raised access floor boxes. However,
the Governments [sic] directed change to British Standard
[BS] outlets required ECCI to re-evaluate the size and
configuration of the boxes. In response to the design
reviewer’s backcheck recommendation for comment 4329826
stating “A cut sheet for the floor box is required in this
design”; ECCI responded on 22 Feb 2013 that, “DIN outlets
no longer required. British standard outlets being evaluated
for use within the floor box recommended by the Reviewer.”
The floor box “recommended” by the reviewer
(Mr. Hopkins)1 was the Legrand Evolution Series eight gang
box. However, the box would not accommodate two duplex
BS outlets.
After “recommending” the Legrand floor box, Mr. Hopkins
[then] explicitly directed its use on 18 March 2013 despite
ECCI’s concerns that it was not compatible with the BS
outlets.
. . .
The ultimate solution to fitting the directed BS outlets into the
directed Legrand box required an increase in box size from
six to eight gang and a special order electrical mounting
bracket. Additionally, because Mr. Hopkins had also directed
that three 35 mm flexible conduits be connected to each box
instead of the contractually required one 25 mm conduit
1 Chip Hopkins was the government’s design reviewer (R4, tab 75 at 18).

7
(addressed previously), special additional 2 inch diameter
knockout plates were also required.
After determining the above solution, ECCI submitted eight
gang Legrand boxes in its construction submittal on 12 May
2013 and they were approved immediately.
(R4, tab 75 at 21-22 (underscored emphasis and bracketed material added, other emphasis
in original)) ECCI also explained that:
However, after [the eight gang Legrand boxes] arrived on
site, they still required unexpected field modifications in
order to fit the BS outlets onto the mounting bracket. The
field modifications involved cutting and filing the bracket
cutouts so the BS outlets would fit.
In summary, the Government’s inappropriate direction to use
Legrand outlet boxes, in conjunction with the modification
requiring BS outlets, resulted in ECCI having to procure eight
gang Legrand boxes that required custom ordered parts and
field modifications instead of a contractually compliant six
gang box requiring no modification. The delay in resolving
this issue required ECCI to airfreight the boxes from the US
and incur significantly increased the cost of materials and
installation.
(R4, tab 75 at 22) We find that the above constitutes at least two sets of materially
different, unrelated operative facts: one concerning the alleged government direction to
use Legrand outlet boxes, and one concerning the alleged government direction that
“three 35 mm flexible conduits be connected to each box instead of the contractually
required one 25 mm conduit.”
4. 	144 Port Fiber Optic Combination Units (FOCUs)
In its submission to the contracting officer, ECCI makes a single request for
$35,535.28 for the government’s alleged direction that ECCI: (1) provide “144 port
FOCU’s when 48 port units were more than sufficient,” and (2) provide “additional
FOCU’s for single mode fiber that were not needed” (R4, tab 75 at 30-31). ECCI states:

8
Mr. Hopkins directed that “The FOCUs for the OSP [outside
plant]2 have to be a four RMU high unit to handle 144
strands.” ECCI disagreed but . . . Mr. Hopkins continued to
insist that all FOCUs have 144 ports instead of the contract
specified minimum size of 48 ports . . . .
Further, . . . Mr. Hopkins directed that, “The single mode and
multimode fiber cannot be terminated in the same
combination unit, whether there is a divider or not. A
variation for consolidation will not be entertained.” . . . .
This direction resulted in additional unneeded FOCUs in two
story buildings. For example, in the case of the two story
barracks, Mr. Hopkin’s [sic] direction resulted in the first
floor relay rack having three FOCUs with 288 ports when
there are only 36 fibers requiring termination.
(R4, tab 75 at 30-31 (bracketed material added, emphasis in original)) We find that the
above constitutes two sets of materially different, unrelated operative facts: one
concerning the alleged government direction to provide 144 port FOCU’s, and one
concerning the alleged government direction to provide additional FOCU’s.
5. 	Directed Trunk and Splice OSP Fiber Configuration
In its submission to the contracting officer, ECCI makes a single request for
$81,256.21 for the government’s alleged direction that (1) ECCI provide OSP fiber
arranged in a “trunk and splice” configuration instead of ECCI’s proposed “star
(homerun) topology,” and (2) ECCI provide that “the OSP fiber optic cable include 25%
space capacity” (R4, tab 75 at 32-34). ECCI states:
The communications system design reviewer directed during
his 65% review that the OSP fiber cable be arranged in his
desired “trunk and splice” configuration. ECCI non-concurred
with his direction . . . .
. . .
2 “OSP” and “outside plant” evidently derive from the “‘United States Army Information
Systems Engineering Command Worldwide Outside Plant Design and
Performance Requirements’ (OSPDPR)” (R4, tab 75 at 33).

9
It is the position of ECCI and the DOR [designer of record]
that the most appropriate design for any “customer owned
outside plant” is direct home runs.
. . .
Additionally, Mr. Hopkins had directed that OSP fiber cable
include 25% space capacity. The ECCI DOR has attempted
to accommodate his requests and added additional fiber not
required by the contract. However, during his review of
ECCI’s 100% communications system design submission in
November 12, [sic] Mr. Hopkins directed the number of
fibers be further increased:
“The OSP does not have the 25% spare capacity as
required in the [request for proposals]. When the size
of the cable changes, all of the cable labels will more
than likely change AND, additional cables may have to
be added which will change the design considerably.”
(R4, tab 75 at 32-33 (emphasis in original, bracketed material added)) Finally, ECCI
identifies the requested $81,256.21 as “the additional cost associated with the
Government’s direction to provide a trunk and splice OSP configuration and to provide
additional fibers” (R4 tab 75 at 34 (emphasis added)). We find that the above constitutes
two sets of materially different, unrelated operative facts: one concerning the
government’s alleged direction that ECCI provide OSP fiber in a trunk and splice
configuration, and one concerning the government’s alleged direction that ECCI provide
OSP fiber optic cable that included 25% spare capacity.
6. 	Changed Direction Regarding Design and Provision of Uninterruptible Power
Supply (UPS) System
In its submission to the contracting officer, ECCI requests $67,721 for the
government’s alleged direction that ECCI provide a UPS system (R4, tab 75 at 40).
ECCI states that initially, the government directed ECCI to refrain from designing and
installing a UPS system, but later directed ECCI to provide such a system without,
apparently, specifying the size of the system (R4, tab 75 at 39). ECCI states that it
notified the government that it intended to provide a 120 KVA system, explaining that:
This significant change in direction at this late stage of the
project will impact schedule and cost, so we will submit our
request for equitable adjustment or, preferably, our response
to a Government RFP as soon as possible.

10
(R4, tab 75 at 39-40 (italics in original)) ECCI states that, in response, the government
directed that ECCI instead provide a 200 KVA UPS system (R4, tab 75 at 39-40). ECCI
responded that:
“ECCI will proceed with completing the design and
providing the system. We disagree with the Government’s
assessment of the required system size and stand by our
determination that a 120 KVA system is appropriate and
meets the stated requirements. Additionally, an optional
maintenance bypass switch is not specified in the contract
requirements, and the unit only requires minimum 30 minute
battery operation during power failure. However, based on
your direction, we will proceed with providing the 200 KVA
systems with maintenance bypass and extended battery
backup and will include the additional costs and time
associated with the larger system and the late timing of this
direction in a Request for Equitable Adjustment to be
submitted as soon as possible.”
(R4, tab 75 at 39 (italics in original, boldface added)) ECCI further states that:
The Government’s direction to provide a 200 KVA system is
based on improperly ignoring USACE’s standard demand,
load and coincidence factors and enforcing erroneous
“previous guidance” to provide 20% in additional capacity
that is not required by the contract. An available 200 KVA
system could not be identified, so ECCI was forced to procure
and airfreight a 225 KVA capable system and bypass switch.
Late arrival of the much larger than required system and
bypass switch required significant rework in the UPS room
prior to installation of the system. This [claim] is for the cost
of the larger system and switch, airfreight and rework in the
UPS room.
(R4, tab 75 at 40) We find that the above constitutes at least two sets of related
materially different, unrelated operative facts: one concerning the government’s
allegedly belated direction to provide a UPS system, and one concerning the
government’s alleged direction to provide a UPS system larger than 120 KVA.

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7. 	HVAC Systems
In its submission to the contracting officer, ECCI makes a request for $878,675.34
for “the Government’s direction to provide UL equipment using R410 and its subsequent
directed acceleration and phased turnover” (R4, tab 75 at 48). ECCI states:
ProjNet Comment 4131009 from the Mechanical Design
reviewer . . . was the first indication that the Government was
expecting UL listed HVAC equipment. ECCI’s response to
that comment was that UL listed equipment was not a
requirement . . . .
On 29 May 2012, ECCI submitted its first HVAC product
data . . . .
. . .
[O]n 18 Jun 12 USACE provided new review comments and
again disapproved the submittal . . . . The comments were
primarily based on the Government’s overarching
requirement that the equipment be:
1. 	UL listed . . . .3
2. 	Use R410 refrigerant
So the Government disapproved the proposed equipment, in
part, for not being UL listed . . . . ECCI promptly addressed
all review comments . . . .
(R4, tab 75 at 42-43) Among those comments, ECCI states that “the use of R22 in new
equipment in Afghanistan . . . is actually in full compliance with . . . our contract.” (R4,
tab 75 at 43 (italics deleted)) ECCI further states:
Despite ECCI’s detailed explanation of its position, the
Government refused to acknowledge that non-U.S. material
was allowed by the contract and issued [an August 5, 2012
letter] restating its position that UL listed material was
required because “100 % cleared for construction
specifications” had inadvertently and incorrectly included
those requirements. The Government maintained that the
3 ECCI also (and elsewhere) references an alleged testing requirement, “per
ANSI/ASHRAE,” that we find unnecessary to include.

12
specifications could not be revised by the Contractor after
“clearance for construction” had been issued. However, no
such clearance had been issued at the time and in fact has not
been issued to date. Furthermore, the notion that the
specifications could not be revised is in direct contravention
to [a government September 2012 letter] that had directed the
. . . Mechanical Specifications be revised and resubmitted.
ECCI resubmitted the proposed HVAC equipment product
data with its position clearly stated in response to the
Government comments. On 10 August 2012 USACE once
again [] disapproved the proposed equipment . . . . ECCI
informed USACE of the intention to resubmit selected
Mechanical specs thus aligning it with contact [sic]
requirements.
The Government [in August and September 2012] reiterated
its demand for UL listed material . . . .
ECCI continued to maintain that the disapproval of our
proposed equipment on the basis that it is 1) not UL listed nor
tested . . . and 2) R-22 refrigerant is not allowed, was not
consistent with the contract requirements.
. . .
[On November 16, 2012, ECCI] provided revisions to the
100% mechanical specs and further clarified our position
regarding ECCI’s contractual right to correct the mechanical
specifications by responding to each Government statement
. . . .
(R4, tab 75 at 44-45 (alterations and bracketed material added)) ECCI provided the
following excerpt of its November 16, 2012 letter to the government:
Our designer erred in including the UL . . . and R-410
requirements in our 100% specifications. The last
Government review of our Mechanical design submittal
resulted in direction to resubmit. We have therefore
corrected the errors in the specifications . . . .
Further, there is no language in the contract that states the
more rigorous HVAC requirements between conflicting

13
Contractor developed specifications and original contract
requirements take precedence. In fact [the contract]
indicates that design products actually have the lowest
precedence.
. . .
Therefore, if we have inadvertently or mistakenly included
provisions in our design that are not contract requirements,
those erroneous requirements are not binding and correcting
them is perfectly reasonable and allowed . . . .
(R4, tab 75 at 45 (italics in original, bracketed material added)) In its May 2, 2014
submission to the contracting officer, ECCI further states:
[In September and November 2012,] ECCI once again
presented its position that UL and R410 criteria had been
mistakenly incorporated into the specifications by its design
team and that the specifications were not binding since ECCI,
as the design-build contractor, was responsible for correcting
the errors in the design specification in accordance with the
terms of our contract.
. . .
Further, USACE approved R22 units for all split pack units
located throughout the project and their unreasonable
disallowance of R22 equipment for the large HVAC systems
served no purpose but to increase ECCI’s costs, delay the
project and complicate the maintenance and operations
functions of the facility.
. . .
The Government once again forbid ECC [sic] to revise its
specification and continued to direct the use of UL listed
material with R410 refrigerant.
. . .
Subsequently, two meetings were held [in November 2012]
between ECCI management and [government officials] to

14
address this and other issues. At the second [November 30,
2012] meeting USACE explicitly directed for the first time
for ECCI to provide UL equipment with R410 refrigerant.
[On November 20, 2012, ECCI] acknowledged the USACE
direction to proceed with UL / R410 equipment and stated
ECCI would be submitting [a Request for Equitable
Adjustment] regarding this issue. . . . ECCI quickly
assembled a new construction submittal package proposing
UL listed Carrier HVAC equipment and submitted it on
8 December 2012 . . . .
However, despite the fact that the product data submitted
clearly showed the equipment was UL listed and used R410
refrigerant . . . [,] the reviewer unreasonably rejected the
submittal. After taking 55 days for its review, USACE had
not conducted any technical review of the proposed
equipment and unreasonably disapproved the submittal
because of just three issues . . . . One comment pertained to
the format of the submittal and, incredibly, two pertained to
references to R22 and CE compliant equipment in the
previous mechanical specifications that had not yet been
revised. No technical comments were provided. Following
the resubmission of the same product data . . . , the
Government finally approved the proposed Carrier HVAC
product data on 7 March 2013.
The total caused by the unreasonable and improper direction
to use UL listed equipment with R410 refrigerant caused a
267 day delay between the unreasonable disapproval of
ECCI’s first construction submittal on 13 June 2012 and the
eventual approval of the Carrier products on 7 March 2013.
However, 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
and had to switch to more expensive Aaon and Trane units in
order to meet the Government’s directive to accelerate and
phase the turnover of facilities. In fact ECCI had to issue [a]
stop work order to Carrier after making a 30% advance
payment against the Purchase Order issued on 27 Mar 13.
ECCI informed USACE of the additional costs associated the
Government would incur [sic] as a result of changing the

15
HVAC suppliers at the weekly . . . conference call on 8 May
2013. The Contracting Officer [and other government
officials] were on the call and all agreed the change was
necessary.
(R4, tab 75 at 47-48 (emphasis, alterations, and bracketed material added))
We find that the above constitutes at least two sets of materially different,
unrelated operative facts concerning: (1) the government’s alleged direction that ECCI
use UL listed equipment with R410 refrigerant; and (2) the government’s alleged
direction to accelerate and phase the turnover of facilities, resulting in an alleged decision
by ECCI to switch from providing Carrier HVAC units to other, more expensive units.4
8. 	Server Cabinets and Relay Racks
In its submission to the contracting officer, ECCI makes a request for $135,270.33
for “the additional material and shipping costs associated with the Government’s
misapplication of TEMPEST requirements and unreasonable issuance of the unilateral
modification for Communications Building Server Cabinets and Racks” (R4, tab 75
at 25-30). ECCI quotes from what it says is its letter to the government:
“The communications system reviewer is maintaining all
requirements associated with meeting a TEMPEST
accreditation in the SCIFs, including maintaining one meter
separations between the different communications systems,
are required. However, TEMPEST countermeasures are not
mandated for continuously operated SCIFs as we confirmed
in our letter . . . of 31 March 2011 . . . . That letter provided
the basis for our proposal for the change of SCIF
requirements . . . . In regard to SCIF accreditation checklist .
. . we stated ‘We have assumed facility does not require
TEMPEST countermeasures.’ The modification was issued in
the exact amount of our proposal without negotiations or
clarification requests from the Government.”
(R4, tab 75 at 25 (italics in original, underscored emphasis added)) In its submission,
ECCI further states:
4 Because of our decision below, we need not decide whether these two sets of facts
themselves contain, within each of them, more than one set of materially different,
unrelated operative facts.

16
The Government requested ECCI’s assumptions with its
proposal to ensure the scope of the modification was clear to
both ECCI and the Government before its issuance. Since it
was issued based on those assumptions, the assumptions are
clearly incorporated by the issuance of the modification.
However, the Contracting Officer’s response . . . stated:
“The design is required to conform to the most
stringent TEMPEST requirements, including the
1 meter separation between equipment racks, as
well as other TEMPEST separation distances and
controls area design requirements.”
ECCI proceeded with the direction in the Contracting
Officer’s . . . letter, however, we continue to maintain the
contract, as modified, does not require application of the
“most stringent” TEMPEST requirements nor does it require
one meter separation between all equipment racks. First,
ECCI continues to maintain that Modification A0004 deleted
any TEMPEST countermeasure requirements in SCIFs based
on ECCI’s clarifications regarding the modification’s scope
and the Government’s acceptance of those clarifications.
However, notwithstanding any impact on TEMPEST
requirements from the modification, the original contract does
not require “the most stringent TEMPEST requirements,
including the 1 meter separation between equipment
racks” as directed by the Contracting Officer.
. . .
The Government’s direction to separate all relay racks by one
meter significantly compounded the problem of fitting the
racks into the communications rooms. Communications
room layouts for racks, ladder racks, etc. required continual
revisions and to such an extent that in Building J ECCI
actually had to change from floor mounted relay racks to wall
mounted racks.
(R4, tab 75 at 25-27) ECCI continues:
Additionally, . . . the communications system design reviewer
continued to direct ECCI to provide the Communications
Building server cabinets and racks that ultimately the

17
Government agreed were not in our contract. After several
exchanges of ProjNet comments and official correspondence,
the Government finally conceded the work was not in our
contract, and . . . stated a modification would be required. An
RFP was issued . . . . ECCI submitted its original proposal . .
. .
ECCI was then required to revise its proposal because the
Government communications system design reviewer
inappropriately disapproved ECCI’s original server cabinet
and relay rack construction submittals. The Government
directed ECCI to re-price its proposal using a Government
specified cabinet from Black Box instead of the less
expensive, contract compliant Chatsworth cabinets ECCI had
originally intended to use.
. . .
The modification was not issued for three months after it was
negotiated. While ECCI had previously agreed to the pricing
adjustment in the modification that was ultimately unilaterally
issued . . . , the delay in preparation of the modification by the
Government made the schedule and pricing impacts estimated
by ECCI obsolete. Moreover, ECCI was concerned about the
impact the modification would have on the relay racks that
were required under the original contract, which would now
have to match the cabinets the Government directed in this
modification. ECCI clearly expressed its concern regarding
impact on the relay rack requirements during the negotiations,
during which the Government agreed to include language in
the modification that would recognize ECCI’s right to request
a contract adjustment for any impact of the server cabinets
directed in this modification on the cost and time associated
with the relay racks required by the original contract. When
the Government sent the modification for ECCI’s signature
three months later, however, such language was not included
as previously agreed. Instead, the standard closing statement
was included essentially barring ECCI from pursuing an
REA. Because of these reasons, ECCI did not agree with the
modification and requested a provision be added . . .
addressing ECCI’s concerns as originally agreed during the
negotiations. The [government] responded:

18
“Your request makes no sense. This is a modification.
As such, the contractor and the Government negotiate
the price of what needs to be delivered based on the
contractor’s costs. If you were directed to obtain
specific items, as you claim, then that cost ought to be
part of your proposal and it gets negotiated. Mod gets
executed based on what was negotiated. End of
story.”
(R4, tab 75 at 27-28 (italics and bolded material in original, underscored emphasis
added)) ECCI further states that after urging ECCI to sign the modification, the
government eventually issued the modification unilaterally, “incorporating ECCI’s
obsolete pricing and schedule impacts and failing to include the provision USACE
originally agreed to include” (R4, tab 75 at 30). ECCI continues:
This issue served to generate numerous Government
comments and back check comments directing ECCI to
reflect the desired system in the design before it was added to
the contract by modification. This in turn served to increase
the cost of subsequent communications system design
submittals. This issue also postponed ECCI’s ability to
procure not only the server cabinets added by the
modification, but also the relay racks in the original contract,
which were changed by the modification, which ultimately
necessitated air freighting the cabinets at a significantly
higher cost than anticipated. Further, the cabinets specified
by the Government were 45 U high cabinets when the
contract, changed by P0007, required only 42U high relay
racks. Therefore, the unilateral modification did not
adequately adjust contract time or price and increased the
procurement cost of relay racks that [the government] refused
to address with the modification previously agreed to.
(R4, tab 75 at 30 (alterations added))
We find that the above constitutes two sets of materially different, unrelated
operative facts: one concerning the government’s alleged direction to separate all relay
racks by one meter, and one concerning the government’s alleged direction that ECCI
provide server cabinets and racks not required by the contract.

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9. 	Ladder Cable Tray Around the Entire Perimeter of Communications Rooms and
Overhead Cable Tray in Tactical Operations Center (TOC)
In its submission to the contracting officer, ECCI makes a request for $153,307.02
for alleged “additional work associated with the additional ladder rack and overhead
cable tray in the TOC building” (R4, tab 75 at 22-25). ECCI states:
[T]he communications system design reviewer[] continued to
insist that cable ladder rack was required around the entire
perimeter of all telecommunications rooms . . . . Our design
showed ladder rack routed around the perimeter of the
telecommunications rooms as necessary to serve the
cabinets/racks . . . .
. . .
Conservatively speaking, the amount of ladder rack installed
project wide doubled over the contract required amount
because of the communications system design reviewer
direction.
Project wide, the additional work associated with the
additional ladder rack and the overhead cable tray in the TOC
building discussed previously in relation to additional outlets
resulted in the below direct cost increase . . . .
(R4, tab 75 at 22-25 (emphasis in original)) We find that the above constitutes two sets
of materially different, unrelated operative facts: one for “additional work associated
with the additional ladder rack,” and one for “the overhead cable tray in the TOC
building.”
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. We also have an independent
obligation to determine our own jurisdiction. See Stobil Enters. v. Dep’t of Veterans
Affairs, CBCA No. 5246-R, 17-1 BCA ¶ 36,610 at 178,323. To the extent that any of the
bases of our jurisdictional determinations go beyond the arguments that the parties have
briefed, the parties may request reconsideration. See id.

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We determine whether a contractor’s submission is a claim on a case-by-case
basis, applying a common sense analysis. ECC Int’l Constructors, LLC (ECCI), ASBCA
No. 59586, 21-1 BCA ¶ 37,862 at 183,854. Identifying what constitutes a separate claim
is important. Id. 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.
at 183,854-55. 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 Contract Disputes Act (41 U.S.C. §§ 7101-7109) for money that is one part of a
divisible case. Id. at 183,855. 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. Id. 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.
Claims seeking different types of remedy, such as expectation damages versus
consequential damages, are different claims. 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.
Id. We must go beyond the face of claims to make these distinctions. 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. Id. 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. Id. 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. Id.
Above we have found that each of the following purported claims (the
government’s jurisdictional challenge to which comprises the whole of the government’s
motion to dismiss), which ECCI presented to the contracting officer as single claims,
consists of more than one set of materially different, unrelated operative facts, and
therefore consists of more than one “sub-claim,” for which sub-claims ECCI did not
provide the contracting officer separate sums certain: (1) Additional Outlets and
Changed Configurations; (2) Additional and Changed Flexible Metal Conduit;
(3) Legrand Raised Floor Communications Outlets; (4) 144 Port Fiber Optic

21
Combination Units; (5) Trunk and Splice OSP Configuration, (6) Changed Direction
Regarding Design and Provision of UPS System; (7) UL/R410 HVAC and Change to
Accommodate Schedule; (8) Server Cabinets and Relay Racks; and (9) Additional
Ladder Rack and Cable Tray. Because ECCI did not specify for the contracting officer
those separate sums certain, the Board does not possess jurisdiction to entertain those
nine purported single claims, which are, consequently, dismissed from the appeal.
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’n at 31-32), saying that:
[T]he Government could have determined the sum certain
attributable to any of the alleged sub-sub-claims via simple
math using the PDF cost documentation included in ECCI’s
claim. For each alleged sub-sub-claim, the Government
needed only to add up the relevant quantities for a particular
issue, and then apply the relevant unit pricing for those items.
(App. opp’n at 31-32) In support of that position, ECCI refers the Board to the affidavit
of Scott A. Hayward, who describes, referencing spreadsheets from ECCI’s submission
to the contracting officer, how he says the sums certain for sub-claims can be calculated
(app. opp’n at 31-32, ex. 1 at ¶¶ 5-31 (citing R4, tab 75 at 87-117, tab 321)). Having
reviewed that affidavit and those spreadsheets, we disagree that sums certain for the
sub-claims at issue are readily calculable by simple arithmetic. Rather, as the
government points out (gov’t reply at 32), ECCI offers calculations like the following:
To calculate the costs associated with the additional outlets
due to “rounding up,” you would: 1) in Additional Changed
Outlets worksheet, zero out all items in Cells E6-L263 other
than those in Rows 6-40, 140, 177-185, 204 and 245; 2) in the
Outlet Quantities worksheet, zero out all items in Cells B23-
Q181 except those in Rows 23, 96, 120, 134 and 169; and
3) in the Added Outlet Pricing worksheet, delete the entry in
Row 19, with the total direct cost of $143,155.58 in Cell J20.
After adding G&A and profit, the total sum is $165,974.25.
(app. opp’n, ex. 1 at 6 ¶ 27) That is not simple arithmetic. Cf. Taj Al Rajaa Co.,
ASBCA No. 58801, 14-1 BCA ¶ 35,522 at 174,104 (“Since the alleged contract specified
the monthly unit price of $2,516, by simple arithmetic the claim amounted to $25,160.”);
Mulunesh Berhe, ASBCA No. 49681, 96-2 BCA ¶ 28,339 at 141,520 (simple
multiplication of lease rental rate by number of months resulted in sum certain);
Dillingham Shipyard, ASBCA No. 27458, 84-1 BCA ¶ 16,984 at 84,612 (sum certain

22
determinable by multiplying hourly rate by claimed hours). ECCI fails to demonstrate
that the sums at issue are readily calculable by simple arithmetic. See ECCI, 21-1 BCA
¶ 37,862 at 183,856 (citing cases).
CONCLUSION
The government’s partial motion to dismiss for lack of jurisdiction is granted, and
the purported claims identified above are dismissed from the appeal.
Dated: November 9, 2021
TIMOTHY P. MCILMAIL
Administrative Judge
Armed Services Board
of Contract Appeals
I concur
RICHARD SHACKLEFORD
Administrative Judge
Acting Chairman
Armed Services Board
of Contract Appeals
I concur
OWEN C. WILSON
Administrative Judge
Vice Chairman
Armed Services Board
of Contract Appeals

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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. 59643, Appeal of ECC
International Constructors, LLC, rendered in conformance with the Board’s Charter.
Dated:
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
November 10, 2021