ASBCA 63325

ARMED SERVICES BOARD OF CONTRACT APPEALS Petition of - ) ) ANHAM FZCO ) ASBCA No. 63325-PET ) Under Contract No. SPM300-20-D-4059 ) APPEARANCES FOR THE PETITIONER: Richard P. Rector, Esq. Dawn E. Stern, Esq. Christie M. Alvarez, Esq. DLA Piper LLP Washington, DC APPEARANCES FOR THE GOVERNMENT: Daniel K. Poling, Esq. DLA Chief Trial Attorney Kelly L. Diaz-Albertini, Esq. Lindsay A. Salamon, Esq. Ryan P. Hallisey, Esq. Robert L. Kieffer, Esq. Trial Attorneys DLA Troop Support Philadelphia, PA ORDER PURSUANT TO RULE 1(a)(5) DIRECTING CONTRACTING OFFICER TO ISSUE DECISION ANHAM FZCO (ANHAM or contractor) filed, under Rule 1(a)(5), a request for an order directing the contracting officer (CO) to render a final decision (COFD) on a March 21, 2022 claim, which was later revised and resubmitted to the DLA (DLA or government) on April 6, 2022, for $34,025,193. ANHAM requested that the CO issue a decision no later than August 8, 2022. The government has advised that a final decision will be issued by April 20, 2023, nearly 13 months after the original claim was submitted for a final decision. We find the government’s proposed date unreasonable and direct the CO to issue a decision by December 16, 2022. STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE PETITION 1. ANHAM entered into Contract No. SPM300-12-D-3571 in 2012 as a subsistence prime vendor in Afghanistan. In 2020, a subsequent contract was awarded, which extended the term of the fixed-price, commercial-item, Indefinite Delivery, Indefinite Quantity (“IDIQ”) contract through April 2025. (Petition for COFD at 1; gov’t resp. to petition at 1-2)  2. In April 2021, President Joseph Biden announced the withdrawal of U.S. troops from Afghanistan (petition for COFD at 2; gov’t resp. to petition at 2). 3. In the months following the announcement regarding troop withdrawal, ANHAM contacted the government to discuss what it believed was the “anticipated termination of the Contract and the related costs of the termination” (petition for COFD at 2). Although the parties held weekly calls, they could not agree on the continued performance of the contract (gov’t resp. to petition at 2-3). 4. ANHAM ultimately requested the government terminate the contract for convenience. The government declined and, letters dated June 8, 2021 and July 16, 2021, informed ANHAM that it did not expect to terminate the contract. Instead, the government expected to be able to place future orders, as necessary. (Gov’t resp. to petition at 3; petition for COFD at 2) 5. On March 21, 2022, ANHAM submitted a certified claim, seeking $34,025,193 for damages it alleges it suffered because DLA breached the contract by failing to acknowledge “the Contract’s constructive termination.” ANHAM requested the CO contact ANHAM’s counsel to coordinate the delivery of the exhibits. ANHAM alleges the government did not respond to obtain the exhibits. (Petition for COFD at 2) 6. ANHAM submitted a revised claim on April 6, 2022, which appellant states was substantively the same, but better tied the claim to the submitted exhibits. The exhibits were submitted on a compact disc with the revised claim. (Petition for COFD at 2) The government does not dispute that the exhibits were attached to the revised claim. 7. On May 20, 2022, 60 days after the initial claim was submitted by ANHAM, the government sent a letter indicating that it intended to issue a final decision by April 20, 2023. The government’s letter stated, “[g]iven the volume and complexity of the subject claim, coupled with the Contracting Officer’s other workload and the additional ANHAM matters currently in litigation,” the government would not issue a final decision until April 2023. The government expanded on the workload issue, explaining that the CO “and her teams’ duties now include administration of the Subsistence Prime Vendor contracts with performance in Europe” and that the CO “is currently on extended leave through September 2022.” (Petition for COFD at ex. C) 8.