ASBCA 61178

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Khenj Logistics Group ) ASBCA No. 61178 ) Under Contract No. W91B4M-09-C-7173 ) APPEARANCE FOR THE APPELLANT: Mr. Ismail Corporate Officer APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. II Army Chief Trial Attorney LTC Joseph J. Jankunis, JA Trial Attorney I OPINION BY ADMINISTRATIVE JUDGE KINNER ON THE I GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT I I The government has moved to dismiss this appeal as time-barred pursuant to the Contract Disputes Act (CDA) statute of limitations. 41 U.S.C. § 7103(a)(4)(A). Appellant, acting prose, filed an opposition to the motion arguing that it is entitled to I the relief sought. Summary judgment will be granted on this issue if there are no genuine issues as to a material fact and the government is entitled to judgment as a matter oflaw. The Adamant Grp. for Contracting & Gen. Trading, ASBCA No. 60316, 16-1 BCA ,r 36,577 at 178,136 (citing Celotex Corp. v. Catrett, 477 U.S. 317,322 (1986)). STATEMENT OF FACTS FOR PURPOSES OF THE MOTION The following facts are undisputed. On 14 May 2009, Khenj Logistics Group (KLG) was awarded a contract to construct a facility known as "ANA Kandak Beddown West," in Farah Province, Afghanistan (R4, tabs 14-15). The facility would consist of barracks, support buildings and bunkers (R4, tab 4 at 5). The contract was to be performed within 100 days after KLG received the notice to proceed (R4, tab 3 at 1). Work was to begin within 7 days of that notice (id. at 6). Contract line item number 0003 required KLG to obtain worker compensation insurance pursuant to the Defense Base Act (DBA) (id. at 4). FAR 52.249-2, TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE) (MAY 2004)-ALT. I, was included by reference (id. at 15). KLG received the notice to proceed 27 May 2009 (R4, tab 16). It commenced performance 1 June 2009, by purchasing DBA insurance for the period of performance for $750 (R4, tab 17). KLG also procured materials to prepare for the construction work (R4, tab 29 at 39). I I  The Army issued a stop-work order on 5 June 2009 because the location for the facility had changed (R4, tabs 21, 29 at 37). The Army terminated the contract for convenience on 10 June 2009 (R4, tab 22). The contracting officer, United States Air Force Technical Sergeant (TSgt), Alex Gross, assured KLG that it was not responsible for the termination and that he expected KLG to successfully perform other projects (R4, tab 29 at 40). TSgt Gross also inquired on 5 June 2009 with KLG whether it could confirm its payment for the DBA insurance and whether it would retain the materials it had purchased (R4, tab 29 at 39). TSgt Gross assured KLG that the government would reimburse the cost of the insurance. He also stated the government would reimburse the cost of the materials if KLG decided not to keep them for future work. (Id.) On 14 June 2009, the parties executed a bilateral contract modification which terminated the contract for convenience (R4, tab 22). The government agreed to pay KLG the cost of the DBA insurance, and KLG released further claims against the government (id.). KLG describes its attempts to contact the contracting officer after the meeting on 14 June 2009, first by telephone and second by visiting the base in Afghanistan. KLG was turned away at the gate. There is no evidence of further attempts by KLG to contact the contracting officer. The latest record related to the government's payment of KLG's DBA insurance cost is 21 October 2009, over four months following the promise to pay for materials on 5 June 2009 (R4, tab 28). KLG submitted a claim to the Army Contracting Command at Rock Island on 6 March 2017 (R4, tab 29 at 43-45). In its claim, KLG asserts that it procured materials for the project and transported them to the work site before the stop-work order. KLG requested $2,192,884 as reimbursement for the costs it had incurred. (Id. at 44-45) The contracting officer denied the claim on 18 May 2017 (R4, tab 36 at 7-8). The contracting officer concluded that KLG had retained the materials purchased and released claims against the government.