Claim alleging that the government breached an equipment lease is denied. The contractor leased equipment to the government . The contractor was obligated to pick the equipment up when the government was done with it. Due to political protests in South Korea, the contractor was unable to pick up the equipment for months. The contractor alleged that the government was on the hook for the costs of an extended equipment lease. The board, however, found that the contractor’s inability to retrieve the equipment was caused by protests, not by government action. The government did not have an obligation to return the equipment to the contractor or to guarantee access to it.
The Army entered a contract with Korea Engineering Consultants Corporation KECC for the delivery of gravel to a military base and the lease of equipment—rollers, dump trucks—to move the gravel. Upon completion of use by the Army, the contract obligated KECC to pick up the leased equipment.
The Army finished with the equipment in October 2017. KECC attempted to pick it up a few days later but could not get to equipment due to protests around the base. Indeed, as a result of protests, KECC was unable to retrieve its equipment for months. It finally recovered the equipment in April 2018 when it was able to access the worksite through an Army convoy.
KECC filed a claim with the Army for costs incurred in trying to retrieve the equipment and for an extension of the equipment lease for the months that KECC was unable to access the site. The Army, for the most part, denied the claim. KECC then appealed to the ACBCA, alleging that the Army had breached the contract.
The board rejected the claim. Absent fault or negligence on the part of its representatives, the government is not liable for damages resulting from the acts of third parties. Here, KECC access to the equipment was inhibited by protesters, not the government. The fact that protesters caused the delay did not create a contractual obligation on the government to remove the equipment and deliver it to KECC. What’s more, KECC’s failure to remove the equipment itself does not create a breach by the government nor does it extend the term of the equipment lease.
The board noted that ultimately KECC was alleging a constructive change in the contract—that is, it had to perform work beyond the contract requirements without a formal order. The board reasoned, however, that KECC had not referred to any express or implied order from an authorized government official agreeing to extend lease payments or reimburse KECC’s costs for the equipment.
KECC is represented by Mr. Byung Chan Park its Vice President. The government is represented by Scott N. Flesch of the Army and Major William T. Branom III, Judge Advocate.
