CBCA 6400

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING PUBLICLY RELEASED IN ITS ENTIRETY ON SEPTEMBER 20, 2021 APPELLANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT DENIED; RESPONDENT’S MOTION FOR SUMMARY JUDGMENT DENIED: September 9, 2021 CBCA 6400, 6401, 6700 INTERNATIONAL DEVELOPMENT SOLUTIONS, LLC, Appellant, v. DEPARTMENT OF STATE, Respondent. Todd M. Garland, Nora K. Brent, Richard C. Johnson, and Amanda C. DeLaPerriere of Smith Pachter McWhorter PLC, Tysons Corner, VA, counsel for Appellant. Randal W. Wax, Office of the Legal Adviser, Buildings and Acquisitions, Department of State, Washington, DC, counsel for Respondent. Before Board Judges ZISCHKAU, SULLIVAN, and CHADWICK. CHADWICK, Board Judge. These consolidated appeals, which are before the Board on cross-motions for summary judgment, seem straightforward in broad outline. The appellant, International Development Solutions, LLC (IDS), provided security services to the respondent, Department of State (State), in Afghanistan. IDS alleges that it incurred unexpected tax liabilities to the Government of Afghanistan as a result of its work on two task orders. IDS seeks payment for the taxes under cost-reimbursement provisions. State argues, among other CBCA 6400, 6401, 6700 2 things, that IDS is not entitled to recover because IDS did not include the taxes in its cost proposals for the task orders. So far, so clear. The surprise is that after conducting discovery for eighteen months (much of it concerning State’s dealings with other contractors under other contracts), assembling an appeal file of 378 exhibits, and briefing the cross-motions, the parties leave open fundamental questions to which the Board would need answers to understand the dispute adequately, much less to resolve it. We cannot determine from the record, among other things, the legal grounds on which Afghanistan assessed the taxes at issue; exactly what corporate entity was liable for the taxes (it does not appear to have been IDS); what entity paid the taxes (it does not appear to have been IDS); whether IDS incurred the taxes as costs on its books; or what the parties knew or should have known about the taxation of U.S. contractors in Afghanistan when State issued the task orders approximately a decade ago. In the case as a whole, the risk of these factual gaps falls mainly on IDS, which bears the burden of proof. On summary judgment, the deficient record causes us to deny both motions and to proceed to a hearing. Background So many of the parties’ proposed facts are genuinely disputed, unsupported, or irrelevant to summary judgment that our factual summary is compressed. IDS provided the services at issue under task orders 9 and 11 (SAQMMA12F1044 and SAQMMA11F2609) issued by State under an indefinite quantity contract in 2011 and 2012. One of the many puzzling things about the case is that the parties agree that task order 11 preceded task order 9. In general, the task orders were for “movement” protective and support services within Afghanistan and had a combined value of more than $400 million. In September 2018, December 2018, and September 2019, IDS submitted to the contracting officer a series of certified claims that collectively sought $36,714,278.18 as reimbursement for taxes paid to Afghanistan in 2017 and 2018 for Afghan tax years 1389 to 1394 (roughly March 2010 to March 2015). State denied the first two claims in February 2019. The appeals from those denials are CBCA 6400 and CBCA 6401, filed in March 2019. The third claim was deemed denied and is before us in CBCA 6700, filed in January 2020. The Board granted IDS’s motions to consolidate the appeals as they were filed. Discovery ended in March 2021. The parties filed dispositive cross-motions in June 2021. IDS argues that it is “entitled to recover the taxes it claims under CLIN [contract line item number] X404” in both task orders. As far as we can determine from the parties’ CBCA 6400, 6401, 6700 3 citations to the record,1 CLIN X404 was a row in the price schedules (or “pricing sheets”) of the task orders that had no text other than its title: “License, Tax, Permits, Visa and Registration Fees.” The parties do not direct us to any language in the task orders or elsewhere that defines the term “tax” as used in CLIN X404 or that explains the purpose of the CLIN. The base contract, awarded in 2010, stated in relevant part, “Non-labor/Material/Other Direct costs (e.g., .