       In the United States Court of Federal Claims
                                      No. 13-888C

                                  (Filed: April 3, 2015)

*************************************
                                    *
ZAFER TAAHHUT INSAAT VE             *
TICARET, A.S.,                      *
                                                Firm Fixed-Price Construction Contract;
                                    *
                                                Delivery of Materials and Supplies to
                    Plaintiff,      *
                                                Project Site; Effect of Pakistan Border
                                    *
                                                Closing; Contractor Claim for Equitable
v.                                  *
                                                Adjustment; Time Extension for
                                    *
                                                Unexpected Delays; Supplementation of
THE UNITED STATES,                  *
                                                Record; Motion to Consolidate.
                                    *
                    Defendant.      *
                                    *
*************************************

Sam Z. Gdanski, Teaneck, New Jersey, for Plaintiff.

A. Bondurant Eley, Trial Attorney, with whom were Agatha Koprowski, Trial Attorney,
Joyce R. Branda, Assistant Attorney General, Robert E. Kirschman, Jr., Director, and
Deborah A. Bynum, Assistant Director, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, Washington, D.C., for Defendant.

                                OPINION AND ORDER

WHEELER, Judge.

        This case arises from a firm fixed-price contract between Plaintiff, Zafer Taahhut
Insaat Ve Ticaret, A.S. (“Zafer”) and the United States Army Corps of Engineers to
construct a community support facility at the Bagram Air Field in Afghanistan. Under the
contract, Zafer was responsible for delivering construction materials and supplies to the
project site. In November 2011, a United States/North Atlantic Treaty Organization
(“NATO”) combat incident resulted in the death of 24 Pakistani citizens. In reaction to
this incident, the Government of Pakistan closed its border for 219 days. Zafer claims an
equitable adjustment to its contract of $769,748.81 because the Pakistan border closing
increased its costs of delivering materials to the site.
       Defendant has filed a motion to dismiss Zafer’s complaint for failure to state a claim
upon which relief may be granted, or in the alternative, a motion for summary judgment.
Defendant contends that Zafer was responsible for delivering materials and supplies to the
project under the firm fixed-price contract, and that the United States did not cause, and
played no role in the closing of the Pakistan border. Also before the Court are two motions
from Zafer, one to supplement the record with 67 pages of news clippings relating to the
border closing and other facts, and the second to consolidate the present case with another
pending case in this Court, Zafer Taahuut Insaat Ve Ticaret, A.S. v. United States, No. 13-
861C (filed Oct. 31, 2013). The motions are fully briefed, and the Court heard oral
argument on March 4, 2015.

        For the reasons explained below, the Court concludes that Zafer assumed the risk of
delivering materials and supplies to the project, and therefore was responsible for any
increased costs of transportation associated with the Pakistan border closing. Any delays
in performance caused by an unforeseen event, such as the border closing, presumably
entitled Zafer to a time extension, but the Corps of Engineers provided a reasonable time
extension for this event. Accordingly, the Court agrees with Defendant that Zafer is not
entitled to an equitable adjustment to its contract. Since the Court’s decision is based upon
a review of documents and other evidence outside of the pleadings, it is more appropriate
to grant Defendant’s motion for summary judgment under Rule 56. The Court denies
Plaintiff’s motions to supplement the record, and to consolidate with the other pending
Zafer case.

                                        Factual Background1

       Zafer is a construction contractor located in Ankara, Turkey. On May 23, 2011, the
Corps of Engineers awarded Zafer Contract No. W912BU-11-C-0017, a firm fixed-price
contract to construct the MILCON Consolidated Community Support Facility at the
Bagram Air Field in Afghanistan. The Government originally specified a completion date
of November 22, 2012. However, the Government could not make the site available until
June 21, 2012. The Government issued a bilateral modification, increasing the contract
price by $3,365,830.34 to $15,371,029.10 and setting a new completion date of October 9,
2013.

       On November 27, 2011, the Government of Pakistan closed its border from the
seaport city of Karachi and along land routes into Afghanistan “after a US/NATO incident
allegedly killed 24 Pakistanis.” Def.’s Mot. at 6. The border remained closed for 219 days
1
  The facts are derived largely from Zafer’s complaint, and from Defendant’s motion to dismiss and
attachments to fill in the gaps where necessary. Any factual disagreements are construed in favor of Zafer.
See Commonwealth Edison Co. v. United States, 56 Fed. Cl. 652, 657 (2003) (In a motion for summary
judgment, “all justifiable inferences must be drawn in favor of the non-movant.”).

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and reopened on July 3, 2012. In the winter months, this land route – the Karachi-Pakistan
route – is the only practical transport option into Afghanistan. Zafer informed the
Government that the border closure would increase its storage and transportation costs, and
asked the Government whether shipments should be made through an alternative route or
through the closed Karachi-Pakistan border. According to Zafer, alternative routes would
have caused time delays of approximately 30-45 days per shipment. Although the border
was closed for 219 days, the Court notes that it was closed for only 12 days (June 21, 2012
– July 3, 2012) after the Corps of Engineers made the project site available.

        By letter dated June 27, 2012, the Government informed Zafer that under the terms
of the contract, Zafer was to use “whatever means necessary to meet its contractual
obligations, without additional financial compensation,” but that it could request a time
extension of the contract completion date. Def.’s App’x A50. On July 11, 2012, Zafer
requested “entitlement to additional time.” Id. at A51. In the same letter, Zafer also
requested reimbursement for “increased costs occasioned by the border closing.” Id. On
October 24, 2012, Zafer informed the Government that Pakistan “required additional
payment to release shipments and that transportation companies were demanding higher
prices to transport supplies from Karachi to Bagram.” Id. at A55. The Government simply
repeated its earlier response. Id. at A56.

        Once the border reopened, Zafer continued to face difficulties in getting its materials
and supplies to the construction site. Zafer also paid port detention and container
demurrage costs for the supplies that were delayed at the border during the border closure.
Id. at A57-58. Before Pakistani officials released the shipments, Zafer incurred additional
costs due to rate increases because of the backlog of shipping containers at the Karachi
port. Id. at A58.

        The contract contains four standard Federal Acquisition Regulation (“FAR”)
clauses that are applicable to this case. First, the contract contained a Site Investigation
and Conditions Affecting the Work clause found at FAR 52.236-3. The relevant portion
of this clause provides:

              (a) The Contractor acknowledges that it has taken steps
                  reasonably necessary to ascertain the nature and location
                  of the work and that it has investigated and satisfied itself
                  as to the general and local conditions which can affect the
                  work or its cost, including but not limited to (1) conditions
                  bearing upon transportation, disposal, handling, and
                  storage of materials.

Id. The contract also contains a standard Changes clause, FAR 52.243-4, and a standard
Default clause, FAR 52.249-10.
                                              3
       The contract states that the materials and supplies in the various line items shall be
“FOB: Destination.” Def.’s App’x A3, A28. The term “FOB Destination” is explained in
FAR 47.303-6, and requires the contractor to deliver the materials and supplies to the
specified project site at no charge to the Government. See FAR 47.303-6(a)(1). The FOB
Destination section provides that “[t]he Government shall not be liable for any delivery,
storage, demurrage, accessorial, or other charges involved before the actual delivery . . . of
the supplies to the destination, unless such charges are caused by an act or order of the
Government acting in its contractual capacity.” FAR 47.303-6(a)(2).

       On May 20, 2013, the Contracting Officer denied Zafer’s claim for an equitable
adjustment, stating Zafer “made a business decision to continue to procure materials and
ship through Karachi,” even after Zafer knew the border was closed. Def.’s App’x A70.
The Contracting Officer granted Zafer a time extension, but denied its request for
additional compensation because “Zafer was neither ordered [n]or directed, at any time, to
continue performance by another more-costly method, nor were they refused a time
extension.” Id. at A69.

        Zafer then filed a timely complaint in this Court on November 8, 2013. On April
24, 2014, the Government filed a motion to dismiss for failure to state a claim upon which
relief can be granted, or, in the alternative, a motion for summary judgment. After multiple
time extensions, Zafer filed its response to the Government’s motion on November 10,
2014. In this response, Zafer also moved to consolidate this case with its other pending
case in the Court, which involves a dispute on a separate contract. The Government filed
its reply to Zafer’s response on January 20, 2015. Zafer moved to supplement the record
on February 27, 2015. All of these pending motions are ready for ruling.

                                         Discussion

   I.     Jurisdiction

       The Tucker Act provides the Court with jurisdiction to “resolve contract disputes
arising under the Contract Disputes Act (“CDA”).” Parker v. United States, 77 Fed. Cl.
279, 285 (2007); see also 41 U.S.C. § 7104(b); 28 U.S.C. § 1491(a). Under the CDA, a
contractor must “submit a written claim to the contracting officer in order to resolve any
dispute that arises with respect to the contract between the government and the contractor.”
Parker, 77 Fed. Cl. at 286. A claim is a “written demand or written assertion by one of the
contracting parties seeking, as a matter of right, the payment of money in a sum certain.”
Deponte Invs., Inc. v. United States, 54 Fed. Cl. 112, 115 (2002).

        Here, Zafer submitted a timely claim to the contracting officer for $769,748.81 as
an equitable adjustment to the contract. That claim was denied, in writing, and constituted
a final decision by the contracting officer. Def.’s App’x A66-71 (contracting officer’s final
                                              4
decision dated July 25, 2013). Zafer then timely filed its claim in this Court within twelve
months after receiving the final decision. Accordingly, the Court has jurisdiction to hear
Zafer’s complaint under the CDA.

   II.    Standards for Decision

        A decision on a motion for summary judgment rather than on a motion to dismiss
for failure to state a claim is proper where the parties rely on factual material beyond the
allegations in the complaint. Engage Learning, Inc. v. Salazar, 660 F.3d 1346, 1355 (Fed.
Cir. 2011). Here, the parties have submitted and relied upon documentary evidence and
pleadings beyond Zafer’s complaint. Therefore, a decision on a motion for summary
judgment is proper in accordance with Rule 56.

        Summary judgment is appropriate where the evidence demonstrates that there is “no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” RCFC 56(a). A genuine issue of material fact is one that could “affect the
outcome” of the litigation when the evidence presented would permit a reasonable trier of
fact to find in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). The evidence is construed in the light most favorable to the non-movant, but
“unsupported assertions or conclusory allegations are insufficient to withstand summary
judgment.” Commonwealth Edison Co., 56 Fed. Cl. at 657 (citing SRI Int’l v. Matsushita
Elec. Corp., 775 F.2d 1107, 1116 (Fed. Cir. 1985)).

        The movant may discharge its burden by showing there is an absence of evidence
to support the non-moving party’s case. See Dairyland Power Coop. v. United States, 16
F.3d 1197, 1202 (Fed. Cir. 1994) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986)). Summary judgment is proper when the non-moving party fails to designate
specific facts sufficient to establish the existence of an essential element to the non-moving
party's case for which that party bears the burden of proof at trial. RQ Squared, LLC v.
United States, No. 12-527C, 2015 WL 170230, at *1, *6 (Fed. Cl. Jan. 14, 2015) (citing
Celotex, 477 U.S. at 324). The Court reviews the contracting officer’s final decision de
novo, without deference. Info. Sys. & Networks Corp. v. United States, 64 Fed. Cl. 599,
604 (2005).

   III.   Analysis

       A single principle guides the Court’s analysis when a contractor seeks an equitable
adjustment from the Government for additional costs incurred during the performance of a
firm fixed-price contract. This principle, enumerated in FAR 16.202-1, provides that,
absent some compensable government action, “[a] firm fixed-price contract provides for a
price that is not subject to any adjustment on the basis of the contractor's cost experience
in performing the contract. This contract type places upon the contractor maximum risk
                                              5
and full responsibility for all costs and resulting profit or loss.” FAR 16.202-1; see also
Agility Def. & Gov’t Servs., Inc. v. United States, 115 Fed. Cl. 247, 250 (2014).

       Zafer argues that the Court should find an exception to this overarching risk-
allocation principle based upon three main contentions: (1) the Government breached the
contract through its failure to compensate Zafer for its increased transportation and storage
costs; (2) the Government constructively changed the contract by directing Zafer to
proceed with contract performance when Zafer experienced an excusable delay; and (3)
the Government breached its duty to cooperate in the performance of the contract. For the
reasons explained below, none of these arguments has merit.

       A.     Whether Defendant Breached the Contract

       Zafer first alleges that the Government breached its obligation to compensate Zafer
for “increased costs in re-procurement, shipping, D&D (detention and demurrage) and
warehousing” due to the Pakistani Government’s closure of the Karachi-Pakistan Border.
See Pl.’s Compl. ¶¶ 7, 29-30.

       Zafer’s contract specifically allocated all of the risk for increased costs of
transportation to the contractor under an FOB Destination” reference. See Def.’s App’x
A3, A28. This reference absolved the Government of any responsibility for increased
transportation costs because the corresponding FAR provision states:

              The Government shall not be liable for any delivery, storage,
              demurrage, accessorial, or other charges involved before the
              actual delivery . . . of the supplies to the destination, unless the
              charges are caused by an act or order of the Government acting
              in its contractual capacity.

FAR 47.303-6(a)(2) (emphasis added).            Furthermore, FAR 47.303-6(b) requires
contractors to “[p]ay and bear all charges to the specified point of delivery.” The contract
also required the contractor to “investigate[] and satisf[y] itself as to the general and local
conditions which can affect the work or its cost, including but not limited to (1) conditions
bearing upon transportation.” FAR 52.236-3.

        Plaintiff claims that it has 25 years of government contracting experience with the
United States, as well as experience in performing contracts in the Middle East since the
1990s. Pl.’s Compl. ¶ 1. As an experienced contractor, Zafer should know the risks it
accepts when it enters into a government contract with an FOB Destination reference.
Since the contract allocated the risk of transportation costs to the contractor, Zafer is not
entitled to an equitable adjustment for its increased transportation costs under the terms of
its firm fixed-price contract.

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       B.     Whether Defendant Ordered a Constructive Change to the Contract

       Zafer next alleges that the Government constructively changed the contract when it
ordered Zafer to perform according to its contractual obligations despite the transportation
delays Zafer experienced. Pl.’s Compl. ¶ 9. Zafer alleges a constructive change of the
contract occurred either when the Government directly caused the Karachi-Pakistan Border
closure due to its involvement in the US/NATO combat incident, or when the Government
negotiated with the Pakistan Government to reopen the border. Id.

       “A constructive change occurs where a contractor performs work beyond the
contract requirements, without a formal order under the Changes Clause, either due to an
informal order from, or through the fault of, the government.” NavCom Def. Elecs., Inc.
v. England, 53 F. App’x 897, 900 (Fed. Cir. 2002); see also FAR 52.243-4, Changes (Jun
2007). The Government’s insistence that a contractor perform according to its contractual
obligations does not constitute a constructive change. See NavCom, 53 F. App’x at 900
(“The government generally has the right to insist on performance in strict compliance with
the contract specifications and may require a contractor to correct nonconforming work.”).
In some circumstances, however, an acceleration order by the Government may constitute
a constructive change. See, e.g., Fraser Constr. Co. v. United States, 384 F.3d 1354, 1360-
61 (Fed. Cir. 2004).

       Constructive acceleration is a type of change that typically arises when the
Government requires the contractor to adhere to the original performance schedule even
though the contractor is entitled to an excusable delay that would otherwise have permitted
a longer period of performance. Id. at 1361. To establish a constructive acceleration claim,
five elements must be met: (1) an excusable delay; (2) timely request for additional time;
(3) improper rejection of additional time; (4) an order to accelerate; and (5) extra or
additional work beyond that provided for in the contract. Id. An excusable delay arises
from “‘unforeseeable causes beyond the control and without the fault or negligence of the
Contractor’ within the meaning of the default clause of the contract.” Id.

       Zafer does not have a valid claim for constructive acceleration. First, all of Zafer’s
claimed costs come from shipping and storage. These are not costs Plaintiff had to incur
to meet contract deadlines. Furthermore, the two cases Zafer relies upon, Dougherty
Overseas, Inc., ENG BCA No. 2625, 68-2 BCA ¶ 7165 and Alley-Cassetty Coal Co.,
ASBCA No. 33315, 89-3 BCA ¶ 21,964, do not support its claims. In Dougherty,
coincidentally involving the same border closing, the Government directed the contractor
to use a route other than the Karachi port when the Afghanistan Government closed the
border. The Court granted an equitable adjustment of the contract price because the
contract explicitly contemplated that transportation would only occur through the Karachi
Port and shipments were marked “VIA KARACHI.” 68-2 BCA at 33,245-46. Similarly,
in Alley-Cassetty Coal, the Court found the contractor was entitled to compensation
                                             7
because the contracting officer insisted upon a different method of shipping than originally
contemplated in the contract. 89-3 BCA at 110,490.

        Unlike the contracts in Dougherty and Alley-Cassetty Coal, Zafer’s contract did not
direct the use of a specific shipping route. See FAR 47.303-6 (FOB destination); FAR
52.236-3 (Site Investigation and Conditions Affecting the Work); Def.’s App’x A17-A19
(listing the contract clauses in the contract). Additionally, Zafer received a reasonable time
extension due to the border closure. See Def.’s App’x A69. To have a valid constructive
acceleration claim, the Government must have improperly denied the contractor’s claim
for additional time or ordered a method of shipping different than that originally
contemplated by the contract. See Fraser Constr., 384 F.3d at 1361; Dougherty, 68-2 at
33,245-46. Such was not the case here.

        Alternatively, Zafer asserts that the Government was responsible for Zafer’s
transportation delays. First, Zafer alleges that the Government caused the Karachi-Pakistan
border to close because of the Government’s involvement in the US/NATO combat
incident, which prompted Pakistan to close its borders. A contractor, however, is “not
entitled to compensation for excusable delays not caused by the Government.” Edge
Constr. Co. v. United States, 95 Fed. Cl. 407, 420 (2010). Plaintiff and Defendant both
acknowledge that it was the Government of Pakistan who closed the border. See Pl.’s
Compl. ¶ 10; Def.’s Mot. at 11. Because it was the Pakistan Government who caused the
excusable delay, Zafer is not entitled to an equitable adjustment.

       Second, Zafer alleges that the Government is liable for its increased transportation
costs because the Government’s negotiations with Pakistan to reopen the border were of a
contractual nature and delayed the border’s reopening. See Pl.’s Opp. at 2-4 (alleging the
Government “contractually interfered, hindered, delayed, [sic] resolution of the border
clos[ure] [issue]”). Here, the Government did not extend the delay through its negotiations
with the Pakistan Government to reopen to border. The only evidence Plaintiff cites are
news articles generally describing the actions of an unnamed “Pentagon team.” See Pl.’s
Compl. ¶¶ 13-14. These articles are hearsay and are insufficient to show that the
Government acted in its contractual capacity with respect to Zafer’s contract in negotiating
the reopening of the border. See Tekkon Eng’g Co., Ltd., ASBCA No. 5831, 11-2 BCA ¶
34,872 (finding the Government not liable for increased transportation costs because it did
not cause the demurrage charges or the expenses of the drivers in prison). Accordingly,
the Government is entitled to summary judgment on Zafer’s claim for a constructive
change.

       C.     Whether Defendant Breached its Duty to Cooperate

        Finally, Zafer alleges that the Government breached the duty to cooperate when it
failed to properly administer the contract and “independently consider Zafer’s [request for
                                              8
an equitable adjustment] in a thoughtful and independent manner.” See Pl.’s Compl. ¶¶
22-27. The duty to cooperate consists of the implied obligation of good faith and fair
dealing that exists in all contracts the Government enters. See, e.g., Centex Corp. v. United
States, 395 F.3d 1283, 1306 (Fed. Cir. 2005); Renda Marine, Inc. v. United States, 66 Fed.
Cl. 639, 648 (2005) (noting “[u]nder each contract it enters, the government has implied
duties of good faith and fair dealing”). The Government is presumed to act in good faith
and the contractor bears the burden to overcome the presumption by clear and convincing
evidence. See Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1239 (Fed.
Cir. 2002). However, “interference by the government with a contractor’s access to the
worksite may constitute a breach of the government’s duty to cooperate.” Olympus Corp.
v. United States, 98 F.3d 1314, 1318 (Fed. Cir. 1996).

        Here, the Government did not breach its duty to cooperate. First, the contract did
not contain a Government warranty against the actions of the Pakistani Government or
guarantee access to the project through the Karachi port. Second, the Government provided
a reasonable time extension for the border closure. Def.’s App’x A69. Zafer points to no
other evidence that would show the Government failed to cooperate in the administration
of its contract. Accordingly, the Government is entitled to summary judgment on this
claim.

   IV.    Motion to Consolidate and Motion to Supplement the Record

       The Court will next address Zafer’s two motions. First, Zafer requested that this
case be consolidated with its other pending case in the Court for ease of discovery and
judicial economy because it claims that both cases involve similar issues. Pl.’s Opp. at 9.
Rule 42 affords the Court broad discretion to consolidate cases involving common
questions of law or fact upon consideration of whether “the interest of judicial economy
outweigh[s] the potential for delay, confusion, and prejudice that may result from
consolidation.” Lucent Techs. Inc. v. United States, 69 Fed. Cl. 512, 513 (2006).
Consolidation here would not promote judicial economy. Zafer’s other pending case in
this Court involves an entirely different contract on an unrelated project. The other case
also covers different issues not present here such as critical path delays, a specific
transportation problem with a chiller, and questions regarding whether Zafer performed
work not covered by that contract’s warranty clause. See Pl.’s Compl. ¶¶ 9-16, 34-38, 39-
47. Further, discovery in Zafer’s other case has been open for several months. It is within
the Court’s discretion to deny a motion to consolidate if “one of the cases is further into
discovery than the other case.” See Borough of Olyphant v. PPL Corp., 153 F. App’x 80,
82 (3d Cir. 2005). Accordingly, Zafer’s motion to consolidate is denied.

      Second, Zafer filed a motion to supplement the record with 67 pages of news articles
attempting to show that the contract between Zafer and the Government contemplated the
shipment of supplies to the project through the Karachi-Pakistan Border. Pl.’s Mot. at 2-
                                            9
3. These news articles are inadmissible hearsay and are also barred by the parol evidence
rule, which prohibits extrinsic evidence to alter the terms of a fully integrated unambiguous
contract. Gemini Elecs., Inc. v. United States, 65 Fed. Cl. 55, 63 (2005). Zafer’s motion
to supplement the record is denied.

                                        Conclusion

       For the foregoing reasons, the Government’s motion for summary judgment is
GRANTED. Plaintiff’s Motion to Consolidate this case with Zafer Taahuut Insaat Ve
Ticaret, A.S. v. United States, No. 13-861C (filed Oct. 31, 2013), and Plaintiff’s Motion to
Supplement the Record are DENIED. The Clerk shall enter judgment for Defendant
dismissing the Complaint.

       IT IS SO ORDERED.
                                                         s/ Thomas C. Wheeler
                                                         THOMAS C. WHEELER
                                                         Judge




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