ASBCA 63282

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Targe Logistic Services Company ) ASBCA No. 63282 ) Under Contract No. W91B4N-18-D-2005 ) APPEARANCES FOR THE APPELLANT: Enayat Qasimi, Esq. Shamsi Maqsoudi, Esq. Whiteford, Taylor & Preston LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Dana J. Chase, Esq. Army Chief Trial Attorney MAJ Danielle C. Naser, JA CPT Amber L. Bunch, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE TAYLOR ON THE GOVERNMENT’S MOTIONS TO AMEND THE ANSWER AND TO COMPEL APPELLANT TO PROVIDE RESPONSIVE INFORMATION Pursuant to Board Rule 6(d), the United States Army (Army or government) moves to amend its previously filed answer to include affirmative defenses of material breach and assumption of risk. We first note that the government’s original answer asserted the affirmative defense of assumption of risk (answer at 60). Appellant did not move to strike that defense. As such, the government does not need to amend its answer to present its legal theory that appellant should not recover any termination costs for the lost fuel and equipment since appellant assumed this risk of loss by choosing not to obtain the required insurance. The government’s request to amend its answer to add this affirmative defense is moot. The government also seeks to amend its answer to include the affirmative defense of material breach. The sole remaining issue before the Board in this appeal is appellant’s entitlement to termination for convenience costs. Because the government elected to terminate the contract for convenience and not default, the Board denies the government’s request to amend its answer to add an affirmative defense of material breach due to futility. The government also filed a motion requesting the Board compel Targe Logistic Services Company (TLS or appellant) to provide information in response to certain government discovery requests. The Board grants, in-part, the government’s motion to compel and directs appellant to respond to the government’s discovery requests pertaining to whether TLS obtained insurance to cover the potential loss of its fuel reserves and equipment since that issue is relevant to appellant’s entitlement to termination for convenience costs under the second prong of the commercial termination clause. STATEMENT OF FACTS FOR PURPOSES OF THE MOTIONS TLS appealed the contracting officer’s denial of its breach of contract and termination for convenience claims resulting from its loss of fuel and equipment seized by the Islamic Emirate of Afghanistan (known as the Taliban) in Afghanistan following the Army’s withdrawal from that country. In a decision dated August 12, 2024, the Board granted the government’s motion for summary judgment on appellant’s breach of contract contentions while denying appellant’s cross-motion for summary judgment on the termination for convenience costs. See Targe Logistic Services Co., ASBCA No. 63282, 24-1 BCA ¶ 38,653. Familiarity with that decision is presumed. In our prior decision, we noted appellant’s entitlement to additional termination costs, if any, would be addressed in further proceedings (id. at 187,899). We found TLS may be entitled to recover its lost fuel and equipment costs as costs reasonably incurred in preparing to perform the contract under the second prong of the commercial termination clause (id. at 187,898). We further noted the record was unclear as to whether TLS had obtained and recovered the lost fuel and equipment costs under any insurance policies that may offset some of its claimed termination costs (id.). GOVERNMENT’S MOTION TO AMEND THE ANSWER I. Parties’ Contentions on Government’s Motion to Amend the Answer The government first seeks to amend its previously filed answer to add affirmative defenses of material breach and assumption of risk resulting from newly discovered evidence. The government contends appellant is not entitled to recover any costs for the lost fuel reserves and equipment under the termination for convenience clause since TLS breached the contract by failing to obtain the required insurance to cover those items (gov’t mot. at 3).