ASBCA 58951

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Atlas Sahil Construction Company ) ASBCA No. 58951 ) Under Contract No. W919QA-10-C-0073 ) APPEARANCE FOR THE APPELLANT: Thomas Rosenstock, Esq. Domenic Senger-Schenck, Esq. Rosenstock Legal Services Kabul, Afghanistan APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Raymond R. Adams, JA MAJ James P. Leary, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE YOUNGER In this appeal under a construction contract to expand a military base in Afghanistan, appellant Atlas Sahil Construction Company (Atlas Sahil or appellant) seeks recovery on its claim for convenience termination settlement costs. Atlas Sahil contends that it furnished sufficient evidence of its costs to substantiate its claim, and the Army argues that the claim lacks the supporting documentation to support the amounts claimed. Both entitlement and quantum are before us for decision. We sustain the appeal in part. FINDINGS OF FACT 1. By date of 27 September 20 I 0, the Army awarded Contract No. W9 l 9QA- l O-C-0073 (the contract) to Atlas Sahil for the expansion of Forward Operating Base Deh Dadi II (Deh Dadi) in Mazar-e-Sharif, Afghanistan (R4, tab I 0). The base served as a "logistical hub to support [United States] draw down efforts in Afghanistan" (tr. 1/16). 2. The contract was a design-build, firm-fixed-price construction contract in the amount of AFN 491,315,463.92 (equivalent to $9,962,112.80 at an exchange rate of 49.3184 AFN/USD) (R4, tab 10 at 2). Under the contract, appellant was to provide all material, labor, equipment, and supervision to: (I) construct and install various structures, including nine large 90 x 120 foot tents, referred to as "Maintenance Tents"; (2) provide and install power distribution systems and generator sets; and (3) provide earthwork and materials for the expansion of Deh Dadi (R4, tabs 2-6, I 0 at 3-9; tr. 1116). The use for the tents was to perform general maintenance or other necessary work on vehicles, or to store them (tr. 2/44-45). Each tent was wired for electricity and a heating/cooling system (HV AC), and had a door large enough to permit ingress and egress of vehicles (tr. 2/44). 3. The contract contained various standard clauses, including: FAR 52.242-14, SUSPENSION OF WORK (APR 1984); DFARS 252.222-7002, COMPLIANCE WITH LOCAL LABOR LAWS (OVERSEAS) (JUN 1997); DFARS 252.233-7001, CHOICE OF LAW (OVERSEAS) (JUN 1997); CENTCOM Contracting Command Clause, 952.225-0015, SUBCONTRACTING REQUIREMENTS (JUL 2010); and CENTCOM Contracting Command Clause, 952.228-0001, WORKERS COMPENSATION INSURANCE (DEFENSE BASE ACT) (JUL 2010) (R4, tab 10 at 30, 34). The contract also contained FAR 52.249-2, TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE) (MA y 2004) - AL TERNA TE I (SEPT 1996) which provided in subparagraph (i) that "[t]he cost principles and procedures of Part 31 of the [FAR], ... shall govern all costs claimed, agreed to, or determined under this clause." 4. The contract also contained a Statement of Work. It provided in part that the project site is "believed to be clear of UXOs [unexploded ordinance], but it is not guaranteed" (R4, tab 2 at 5). 5. In describing the project work, the parties followed the convention of dividing it using contract line item numbers (CLINs). As originally awarded, the contract contained 28 CLINs (R4, tab 10 at 3-16 of 41 ). 6. By date of 10 October 2010, Atlas Sahil entered into a joint venture partnership agreement with Sambros International Corporation (Sambros), another Afghan company, to purchase the tents and generators supplied under the contract, provide financing, and complete performance of the Deh Dadi contract (supp. R4, tab 70; tr. 1/31-32, 98). 7. The record contains a copy of Invoice No. 136 dated 26 February 2011 from Al Baddad International (Al Baddad) in Dubai to Sambros for nine tents and component equipment, such as steel rollup doors and single doors. According to the invoice, the total sale price to Sambros for the nine tents and component equipment, including delivery, was $747,000.