ASBCA 60532

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Sang Kash Company ) ASBCA No. 60532 ) Under Contract No. W9 l B4N-l 5-D-8013 ) APPEARANCE FOR THE APPELLANT: Mr. Abdul Bari President APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Ronald M. Herrmann, JA Trial Attorney OPINION BY ADMINISTRATIVE JUDGE WOODROW ON THE PARTIES' MOTIONS FOR SUMMARY JUDGMENT This is an appeal from the Joint Theater Support Contracting Command's (JTSCC or Army) termination for default against Sang Kash Company (Sang Kash or appellant). The Army terminated its contract for the supply of bulk concrete with Sang Kash after Sang Kash lost its base access privileges to Bagram Airfield, Afghanistan. Pending before the Board is the Army's motion for summary judgment and appellant's cross-motion. Clause 5152.225-5916 was incorporated into the contract by bilateral . modification, which required appellant to maintain access to the installation in order to perform work under awarded task orders (R4, tab 14). After the Senior Commander of Bagram Airfield Afghanistan revoked appellant's base access, the contracting officer terminated the contract for default. Appellant appealed the termination for default arguing that: (i) its base access privileges were revoked as a means for the government to nullify its contract rights; and (ii) appellant was deprived due process rights. We grantthe government's motion for summary judgment and deny the appeal. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. Contract No. W91B4N-l5-D-80l3 (the contract) was a requirements contract awarded to Sang Kash on July 8, 2015, by CENTCOM (US Central Command)-Joint Theater Support Contracting Command (JTSCC) to obtain bulk concrete for Bagram Airfield, Parwan Province, Afghanistan (R4, tab 1 at 50). The contract incorporated by reference FAR 52.233-1, DISPUTES (MAY 2014) and FAR 52.249-10, DEFAULT (FIXED- PRICE CONSTRUCTION) (APRIL 1984) (R4, tab 1 at 32-33).  2. The contract required Sang Kash to supply and deliver quantities of bulk concrete as requested by JTSCC. The contract did not include a guaranteed minimum quantity and explicitly stated that the quantities set forth in the schedule were estimates. The following clauses were incorporated into the text of the contract: 52.216-19, ORDER LIMITATIONS (OCT 1995) and 52.216-21, REQUIREMENTS (OCT 1995) (R4, tab 1 at 33-35). Clause 52.216-19 states, in relevant part: "(a) Minimum order. When the Government requires supplies or services covered by this contract in an amount of less than O cm ( quantity), the Government is not obligated to purchase, nor is the Contractor obligated to furnish, those supplies or services under the contract" (R4, tab 1 at 34) (emphasis in original). Clause 52.216-21 states, in relevant part: (a) This is a requirements contract for the supplies or services specified.... The quantities of supplies or services specified in the Schedule are estimates only and are not purchased by this contract. Except as this contract may otherwise provide, if the Government's requirements do not result in orders in the quantities described as "estimated" or "maximum" in the Schedule, that fact shall not constitute the basis for an equitable price adjustment. Id. The statement of work (SOW), written into the contract, states in Section 1.1.1 that the purpose of the contract is: "to obtain bulk concrete for Bagram Airfield. All other requirements listed in the Statement of Work (SOW) are secondary and not guaranteed." (R4, tab 1 at 50) (emphasis in original) SOW Sections 2.23-2.34 address access to military installations and bases in Afghanistan (R4, tab 1 at 56-57). SOW Section 2.28 states that "Contracting officers may terminate contractors when contractors lose the ability to access the work site" (R4, tab 1 at 57). 3. Bilateral Modification No. P00002, dated November 10, 2015, added Central Command (CENTCOM) clause 5152.225-5916 MANDATORY ELIGIBILITY FOR INSTALLATION ACCESS (OCT 2015) in full text, to the contract (R4, tab 14). The clause required the prime contractor and all subcontractors to be initially eligible for installation access to a U.S. and/or coalition installation, and to remain eligible during the entire period of contract performance.