ASBCA 61155

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Abdul Khabir Construction Co. ) ASBCA No. 61155 ) Under Contract No. W91B4M-09-C-4063 ) APPEARANCE FOR THE APPELLANT: Mr. Jawad Corporate Officer APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq. Army Chief Trial Attorney MAJ Jason W. Allen, JA MAJ Bruce L. Mayeaux, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE YOUNGER ON THE GOVERNMENT'S MOTION FOR-SUMMARY JUDGMENT In this appeal regarding a construction contract terminated for convenience, the government has moved for summary judgment, contending that appellant failed to submit its termination settlement proposal within a year of the effective date of termination, and did not submit its certified claim until more than seven years after termination. Appellant counters that the government never asked for a settlement proposal, and never told it where to file a claim. We grant the motion and deny the appeal. STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 1. By date of 4 April 2009, the Kabul Regional Contracting Center (government) awarded Contract No. W91 B4M-09-C-4063 (the contract) to Abdul Khabir Construction Co. (Abdul Khabir or appellant) for the construction of living quarters, office buildings, and support facilities at Forward Operating Base (FOB) Baylough, in Zabul Province, Afghanistan (R4, tab 2 at 2, tab 5 at 5-6). 2. The contract contained two fixed-price contract line item numbers (CLINs). The first was for construction work at FOB Baylough in the amount of $638,923.68. (R4, tab 2 at 3-4) The second was for Defense Base Act (DBA) insurance in the amount of $6,594 (id. at 4, 20-21).  3. The contract incorporated by reference various standard clauses, including FAR 52.233-1, DISPUTES (JUL 2002); and FAR 52.249-2, TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE) (MAY 2004) - ALTERNA TE I (R4, tab 2 at 22). The latter clause provided, in paragraphs (e) and U): (e) After termination, the Contractor shall submit a final termination settlement proposal to the Contracting Officer in the form and with the certification prescribed by the Contracting Officer. The Contractor shall submit the proposal promptly, but no later than 1 year from the effective date of termination, unless extended in writing by the Contracting Officer upon written request of the Contractor within this I-year period. However, if the Contracting Officer determines that the facts justify it, a termination settlement proposal may be received and acted on after 1 year or any extension. If the Contractor fails to submit the proposal within the time allowed, the Contracting Officer may determine, on the basis of information available, the amount, if any, due the Contractor because of the termination and shall pay the amount determined. U) The Contractor shall have the right of appeal, under the Disputes clause, from any determination made by the Contracting Officer under paragraph (e) ... ofthis clause, except that if the Contractor failed to submit the termination settlement proposal or request for equitable adjustment within the time provided in paragraph (e ) ... , and failed to request a time extension, there is no right of appeal. 4. By date of 17 July 2009, the contracting officer issued a notice to proceed, effective the next day (R4, tab 9). Abdul Khabir appears to have received the notice to proceed on 22 July 2009 (id.). In the notice, the contracting officer directed Abdul Khabir to "complete all requirements of this project within 120 calendar days of the effective date of this Notice to Proceed, but no later than 14 November 2009" (id.) (emphasis in original). 5. The record reflects that Abdul Khabir did not perform any work on the contract (R4, tabs 10-11 ). 2  6. By email dated 14 January 2010, the contracting officer proposed a no-cost convenience termination to Abdul Khabir (R4, tab 10).