CBCA 8301

GRANTED IN PART: April 8, 2026 CBCA 8301 TOP LEVEL CONSTRUCTION COMPANY, Appellant, v. DEPARTMENT OF STATE, Respondent. Khaybar Ziarmal, President of Top Level Construction Company, Kabul, Afghanistan, appearing for Appellant. Alexandra N. Wilson, Office of the Legal Adviser, Buildings and Acquisitions, Department of State, Washington, DC, counsel for Respondent. Before Judges LESTER, O’ROURKE, and KANG. KANG, Board Judge. Appellant, Top Level Construction Company (Top Level), seeks payment in connection with two purchase orders (POs) awarded by respondent, the Department of State (DOS), for performance of construction in Afghanistan. Top Level contends that it is entitled to recover costs for equipment, materials, and bank guarantees it states were lost when the United States Government withdrew from Afghanistan in August 2021. The parties submitted the case on the written record without a hearing, pursuant to Board Rule 19 (48 CFR 6101.19 (2024)). We grant the appeal in part. CBCA 8301 2 Background I. Purchase Order Awards and Performance A. Purchase Order 0382 In May 2021, DOS awarded Top Level purchase order 19AF2021P0382 (PO 0382) for removal of an existing gate and installation of an automated gate at the DOS facility at Camp Alvarado in Kabul, Afghanistan. Appeal File, Exhibit 8 at 50.1 The purchase order was awarded for a fixed price of $89,928.75. Id. The purchase order identified the following scope of work: The Contractor shall complete all work, including furnishing all labor, material, equipment, and services required under this purchase order for the following firm fixed price and within the time specified. This price shall include all labor, materials, all insurances, overhead and profit. Exhibit 4 at 6. PO 0382 required Top Level to provide and obtain insurance for its equipment and materials and to indemnify DOS, as follows: G.2.0 INSURANCE–The Contractor is required by [Federal Acquisition Regulation (FAR)] 52.228-5, “Insurance–Work on a Government Installation” to provide whatever insurance is legally necessary. .... G.2.3 The Contractor agrees that the Government shall not be responsible for personal injuries or for damages to any property of the Contractor, its officers, agents, servants, and employees, or any other person, arising from and incident to the Contractor’s performance of this contract. The Contractor shall hold harmless and indemnify the Government from any and all claims arising therefrom, except in the instance of gross negligence on the part of the Government. 1 All exhibits are found in the appeal file, unless otherwise noted. Page citations to the exhibits are to the bates numbers added by the parties. CBCA 8301 3 G.2.4 The Contractor shall obtain adequate insurance for damage to, or theft of, materials and equipment in insurance coverage for loose transit to the site or in storage on or off the site. Exhibit 8 at 13-14. PO 0382 incorporated by reference two FAR clauses that required Top Level to obtain and maintain insurance: (1) FAR 52.228-4, Workers’ Compensation and War-Hazard Insurance Overseas (APR 1984) (48 CFR 52.228-4 (2020)), which references the requirements of the Defense Base Act, 42 U.S.C. §§ 1651–1655 (2018); and (2) FAR 52.228-5, Insurance–Work on a Government Installation (JAN 1997). Exhibit 8 at 19. PO 0382 required Top Level to submit a bank guarantee letter of an “amount equal to 20% of the contract price in [United States] dollars during the period ending with the date of final acceptance and 10% of the contract price during contract guaranty period.” Exhibit 8 at 28. PO 0382 provided that the contracting officer would issue the notice to proceed “[a]fter receiving and accepting any bonds or evidence of insurance” but that “[i]t is possible that the Contracting Officer may elect to issue the Notice to Proceed before receipt and acceptance of any bonds or evidence of insurance.” Id. at 10.