ECC International Constructors, LLC

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