               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                 )
                                             )
Lael Al Sahab & Co.                          )      ASBCA No. 58346
                                             )
Under Contract No. W91GET-06-M-0063          )

APPEARANCE FOR THE APPELLANT:                       Mr. Alie Sufan
                                                     Owner

APPEARANCES FOR THE GOVERNMENT:                     Raymond M. Saunders, Esq.
                                                     Army Chief Trial Attorney
                                                    CPT Vera A. Strebel JA
                                                     Trial Attorney

                OPINION BY ADMINISTRATIVE JUDGE MELNICK

       Appellant, Lael Al Sahab & Co., seeks complete payment for work upon a
contract to provide street cleaning and grounds maintenance in Iraq. The government
withheld a portion of the payments sought because of inadequate performance. The
Board previously dismissed most of the appeal for lack of jurisdiction. However,
appellant was permitted to proceed with a claim for $8,250 that the government
withheld from its payment of two invoices totaling $30,000. Lael Al Sahab & Co.,
ASBCA No. 58346, 13 BCA if 35,394. After the parties chose to proceed under Board
Rule 11, the government represented that it did not contest $3,750 of the amount
claimed. The government has demonstrated that the additional $4,500 was properly
withheld. Appellant is therefore entitled to recover $3,750, plus CDA interest.

                                FINDINGS OF FACT

        1. On 21 March 2007, appellant entered into the commercial items contract
identified above with the Joint Contracting Command-Iraq (government).* The
contract was for street cleaning and grounds maintenance services. Appellant was to
be paid $15,000 per month. (R4, tab 1) Section 11.1 of the contract's Statement of
Work provided that the government would "not make a full payment if the contractor
does not perform to the specification of the contract" (R4, tab 1 (Statement of Work at
4)). It continued to say:




* While the contract number is W91GET-06-M-0063, at times the parties' referred to
      it as W91GET-07-M-0063 (R4, tabs 2, 7).
              In a case where only partial work was completed, a partial
              payment will be made. Partial payments may be exercised
              if the contractor does not provide the stated workforce or
              does not clean each street outlined.

(R4, tab 1 (Statement of Work at 4)).

        2. Appellant's first $15,000 invoice was for the period 21March2007 until
20 April (R4, tab 3). The contracting officer determined that appellant was entitled to
the full payment (R4, tab 3, 5, 15 at 2). Nevertheless, the government withheld
$3,750, paying appellant $11,250 (R4, tabs 3, 9).

       3. Appellant did not provide complete trash removal and ground maintenance
services during May of 2007. That failure was documented in a memorandum to
appellant dated 9 May 2007, and by daily logs showing repeated failures to perform
grounds maintenance and remove all litter and debris, prepared by the government's
inspector between 12 and 31 May (R4, tabs 4, 5, 15 at 2). Appellant did not clean
30 percent of the required area (R4, tab 15 at 2). On 20 May 2007, appellant submitted
a second invoice for $15,000. However, because appellant did not completely perform
the contract's requirements, payment was reduced by 30 percent, or $4,500, to $10,500
(R4, tabs 3, 15 at 2).

        4. The government terminated the contract for cause on 5 June 2007 (R4, tab
7). On that date, appellant submitted a claim to the contracting officer seeking, among
other things, the $8,250 withheld from the two invoice payments (R4, tab 9). See Lael
Al Sahab, 13 BCA ~ 35,394 at 173,661-63. By email dated 4 October 2012, appellant
filed a notice of appeal seeking $1,011,000. The Board has already dismissed the
majority of the appeal, except for the $8,250 withheld from the first two invoices. Id.
at 173,662-64.

                                        DECISION

       The contracting officer approved payment of the entire $15,000 sought in the first
invoice and the government does not contest that appellant is entitled to the full payment
(finding 2). Accordingly, appellant is entitled to recover the $3,750 withheld by the
government.

        The contract entitled the government to make partial payments in the event only part
of the contract work was performed (finding 1). Appellant neglected to perform 30 percent
of its contract obligations during May of 2007, and provides no explanation for that failure
(finding 3). Nor does it give any indication that the government's 30 percent withholding
from its payment of the second invoice was unjustified. The government has proven that
the withholding "reasonably represented the reduced value of appellant's performance."


                                           2
Wright's Auto Repair, Inc., ASBCA Nos. 29138, 31372, 88-1BCA~20,449 at 103,425.
Accordingly, appellant's claim for the $4,500 withheld from the second invoice is denied.

                                   CONCLUSION

       Appellant is entitled to recover $3,750, plus interest under 41 U.S.C. § 7109 from
5 June 2007. Otherwise, the appeal is denied.

      Dated: 17 February 2016


                                               ~(!VJ(
                                                  MARK A. MELNICK
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals


 I concur                                         I concur



~~
 Administrative Judge
                                                 ~CKLEFORD
                                                  Administrative Judge
 Acting Chairman                                  Vice Chairman
 Armed Services Board                             Armed Services Board
 of Contract Appeals                              of Contract Appeals


       I certify that the foregoing is a true copy of the Opinion and Decision of the Armed
Services Board of Contract Appeals in ASBCA No. 58346, Appeal of Lael Al Sahab & Co.,
rendered in conformance with the Board's Charter.

      Dated:



                                                 JEFFREY D. GARDIN
                                                 Recorder, Armed Services
                                                 Board of Contract Appeals




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