ASBCA 58243

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Highland Al Hujaz Co., Ltd. ) ASBCA No. 58243 ) Under Contract No. W917PM-09-C-0049 ) APPEARANCES FOR THE APPELLANT: Herman M. Braude, Esq. Edward D. Manchester, Esq. Braude Law Group, P.C. Washington, DC APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney Daniel B. McConnell, Esq. James A. Wallace, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Middle East Winchester, VA OPINION BY ADMINISTRATIVE JUDGE THRASHER This appeal arises out of a contract between the U.S. Army Corps of Engineers (Corps or government) and Highland Al Hujaz Co., Ltd. (Highland or appellant) to design and build an Afghan National Army (ANA) installation on Camp Hero in Kandahar, Afghanistan. Highland appeals from the government's decision to terminate the contract for default. Only the propriety of the Corps' default decision is before us in this appeal. 1 We have jurisdiction to adjudicate this appeal pursuant to the Contract Disputes Act, 41 U.S.C. §§ 7101-7109. Because the Corps has shown that it properly terminated the contract for default and Highland has not shown that its default was excusable, the appeal is denied. 1 Post-hearing; the government asserted government claims for excess reprocurement costs, overpayments during performance, and liquidated damages under this contract. Appellant appealed all these claims and all have been set for hearing: reprocurement costs and overpayments, ASBCA Nos. 59746, 59818, 60134; and liquidated damages, ASBCA No. 60385. On 26 February 2016, the files in these associated appeals were consolidated with Highland Al Hujaz Co., Ltd., ASBCA No. 58243. However, this decision only addresses appellant's appeal of the government's termination of Contract No. W917PM-09-C-0049 for default.  FINDINGS OF FACT A. Background 1. Solicitation and Contract Requirements 1. In February 2009, the Corps issued a solicitation for a firm-fixed-price contract for the design and construction of an ANA Corps Support Battalion (CSB) installation to be located adjacent to the ANA Garrison at Camp Hero in Kandahar, Afghanistan (R4, tab 3 at 1, 3, 60). 2. While the project required the CSB to be master planned so that it could ultimately accommodate 1,640 soldiers, the site initially would host about 700 soldiers (R4, tab 3 at 3, 60-61). Accordingly, the solicitation stated that the soldiers' barracks, the dining facility (DFAC), and several priority life-support systems were to be completed by 1 September 2009. If they were not completed by that date, the contractor would be responsible for providing temporary facilities or systems to support 700 soldiers until the permanent facilities or systems were in place. (Id. at 67, 70, 74, 75) The site electrical distribution system, or power system, was one such system. The solicitation stated in red lettering: "If the power system is not completed by September 01, 2009 the contractor will be required to supply temporary power to the compound" (id. at 67). 3. The solicitation set forth in full text local clause 2.2, "ATTACKS FROM HOSTILE ENTITIES," which stated in pertinent part: This contract is firm fixed-price. Costs incurred in the performance of project execution that arise from the attacks of hostile entities, such as costs arising from damage to or destruction of contractor equipment and facilities, and damage to or destruction of project prior to Government acceptance, are the sole responsibility of the contractor. The Government makes no guarantee to provide the contractor with security, and bears no obligation to reimburse the contractor for costs arising from the attacks of hostile entities.