ARMED SERVlCES BOARD OF CONTRAC'I` APPEALS

Appeals of --

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_ ) ASBCA Nos.é<)zoo,eosoz

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Under Contract Nos. WSJ9JE-15-P-0017
W5]9JE-15-P-0016

APPEARANCE FOR THE APPELLANT:
CEO & President

APPEARANCES FOR THE GOVERNl\/[ENT: Thomas H. Gourlay, Jr., Esq.
Engineer Chief Trial Attomey
Matthew S. Tilghman, Esq.
Michael E. Taccino, Esq.
Engineer Trial Attomeys
U.S. Army Engineer District, Middle East
Winchester, VA

OPINION BY ADMINISTRA'I`IVE JUDGE WILSON
ON THE GOVERNMENT’S MOTION FOR SUlvfMARY JUDGMENT

These appeals involve the default termination of two contracts to perform
custodial, maintenance, and ground services on several military bases in Afghanistan.
The terminations were based on the inability of appellant to gain access to the respective
bases to perform the contracts due to a determination by the government that appellant
was a force protection threat to the United States and Coalition Forces. The government
moves for summary judgment contending that the loss of facility access and subsequent
inability to provide the required services entitled it to terminate the contract for default.
Appellant counters that the revocation of its access to the installations was not its fault
and the government wrongfully terminated its contracts. For the reasons stated below,
we grant the govemment’s motion.

STATEMENT OF FACTS §SOF) FOR PURPOSES OF THE MOTlON

ASBCA No. 603 00 - T he Bagram Contract

1. On 8 July 2015, the Corps awarded Contract No. W5J9JE-15-P-0017 (Bagram
contract) to appellant to provide custodial and grounds maintenance services at several
bases and facilities in Afghanistan (Bagram Airfield, Camp Gamberi, Camp Marmal, the

Kabul Area Offlce and Qargha). The performance period was from l August 2015
through 31 December 2017. (R4‘, tabs 6, 7 at 5)

2. The contract contained the following provisions and F ederal Acquisition
Regulation (FAR) clause:

1.7.1. Hours of Operation. The Contractor is responsible for
conducting business and may be required to work a maximum
of 48 hours per Week, which Will be eight (8) hours per day,
six (6) days per Week. All personnel will be scheduled
through shifts...from 8:00 AM through 4:30 PM....

1.9.1. Base Security Requirements. The Base security
maintains the ultimate authority for establishing, monitoring,
and enforcing security requirements for the work site.... The
Contractor shall be responsible for compliance With all base
security requirements The Government reserves the right to
deny access or to require the Contractor to remove any
personnel or equipment deemed to be a threat to the security
of facilities or facility personnel. The Contractor shall work
through the [contracting officer] to assure that all Security
Regulations are followed.

1.9.2. Security and Facility Access. The Contractor will be
responsible for obtaining all permits, licenses, rights of entry,
and approvals from all local Govemorate and National
authorities as necessary for the performance of these services.
Rights of entry include the ability to obtain the proper
documentation to ensure that personnel can enter facilities
controlled by Coalition Forces, the U.S. State Department,
and the [Govemment of Afghanistan]. Contractor Workforce
must comply With all personal identity verification
requirements as directed by DOD, HQDA and/or local policy.
In addition to the changes otherwise authorized by the
changes clause of this contract, should the Force Protection
Condition (FPCON) at any individual facility or installation
change, the Government may require changes in contractor
security matters or processes.

 

l Each of the Rule 4 references specifically relate to the un-consolidated appeal file
volume of that particular appeal. For ease of reference, we will discuss each
appeal separately, but the relevant contract language for both appeals is identical.

2 .

52.212-4 CONTRACT TERMS AND CONDITIONS -
COMMERCIAL ITEMS (DEC 2014)

(m) Termination for cause. The Govemment may terminate
this contract, or any part hereof, for cause in the event of any
default by the Contractor, or if the Contractor fails to comply
with any contract terms and conditions, or fails to provide the
Govemment, upon request, with adequate assurances of
future performance.... If it is determined that the Govemment
improperly terminated this contract for default, such
termination shall be deemed a termination for convenience.

(R4, tab 6 at 10-12, 38, 41) We find that appellant had the responsibility to maintain
access to the facilities. We further find that the contract required continuous services.

3. By letter dated 30 July 2015, appellant was given the Notice to Proceed (R4, tab 15).

4. On 19 September 2015, the Deputy Commander, RS Train, Advise, Assist
Command-South (TAAC-S), Headquarters, Combined Joint Task Force-7, Kandahar
Airfield, Afghanistan, issued a “Notice to Vacate Kandahar Airfield.” The letter read as
follows:

l. Your business and its operations have been determined to
be a force protection threat to US and Coalition Forces at
Kandahar Airfield. Therefore, your access to Kandahar
Airfield is hereby revoked. Effective immediately your
business, its operations, and employees will no longer be
permitted on KAF and will be denied base access in the
future....

2. You may submit a request for reconsideration to the
TAAC-S Force Protection Cell, if you believe this
determination is based on erroneous information or if the
circumstances have significantly changed. The request must
be in writing. Your request for reconsideration will be
forwarded to the Resolute Support and United States _
Forces-Afghanistan Force Protection Cells. Any requests for
reconsideration must be received within five days from
receipt of this notice.

(R4, tab 16) As a result of this determination, appellant was unable to access any of the
U.S. and Coalition force bases in Afghanistan (R4, tab 19; gov’t mot., ex. l).

5. On 24 September 2015, the contracting officer terminated the contract for
cause pursuant to the contract clause FAR 52.212-4(m) due to lack of base access (R4,
tab 4).

6. By letter dated 5 October 2015, the Corps requested that appellant submit a
final invoice for work performed during the 1-24 September 2015 contract period (R4,
tab 22). In response, appellant submitted an invoice that was approved and paid in full by
the Corps (R4, tabs 20, 21).

7. On 27 October 2015, appellant filed a timely notice of appeal with the Board
from the termination for cause of the Bagram Contract, which was docketed as ASBCA
No. 60300.

ASBCA No. 603 02 - T he Kandahar Contract

8. On 6 July 2015, the Corps awarded Contract No. W5]9JE-15-P-0016
(Kandahar Contract) to appellant for janitorial services, maintenance and repair Services
(including parts and supplies), and generator preventative maintenance services at
Kandahar Airfield in Afghanistan (R4, tab 5).

9. The contract specified that the work was to be done on a daily basis (6 days a
week for custodial services) while other work was to be accomplished on a monthly basis
or emergency repairs; and general facilities support, which had to be accomplished within
24-48 hours of a request (R4, tab 5 at 13, 36).

' 10. The contract contained the identical access provisions and clause as the
Bagram Contract (see SOF 11 2).

ll. As a result of the same letter from TAAC-S (SOF 11 4) appellant’s access to
Kandahar Airfield was revoked. Subsequently, on 24 September 2015, the contracting
officer terminated the contract for cause pursuant to the contract clause FAR 52.212-4(m)
(R4, tabs 3,’ 19).

12. The Corps requested invoices for work completed up to the date of termination
(R4, tab 22). Appellant submitted an invoice (R4, tab 20), which was paid (R4, tab 21).

13. On 27 October 2015, appellant filed a timely notice of appeal from the
termination for cause of the Kandahar Contract, which was docketed as ASBCA No. 60302.

14. In support of its motion, the government offered a declaration from
Ms. Cherita Williams, the contracting officer (CO) who terminated the contracts at issue.
CO Williams states:

3. On 19 September 2015, the Deputy Commander of the ,
U.S. Military organization responsible for security on
Kandahar Airfield issued a memorandum that begins as
follows: “Your business and its operations have been
determined to be a force protection threat to US and Coalition
Forces at Kandahar Airfield. Therefore, your access to
Kandahar Airfield is hereby revoked.”

4. At the time when [the Corps] terminated the Contracts, a
system of vendor vetting was in place for U.S. Govemment
contractors in Afghanistan. The system is intended to prevent
the U.S. Govemment from contracting with entities that
support insurgent groups in Afghanistan. The U.S.
Government personnel who are responsible for vendor vetting
make determinations that have dispositive effect on vendors’
access to U.S. Military installations based on classified
intelligence information.

5. At the time when I terminated the Contracts, I had
personal knowledge that the revocation of [appellant’s] access
to Kandahar Airfield was the direct result of a vendor vetting
determination of the kind described in paragraph 4.

6'. Further, at the time when I terminated the Contracts, based
on my understanding of the vendor vetting process, I knew
that the revocation of [appellant’s] installation access applied
to all U.S. Military installations

7. After the issuance of the memorandum to [appellant],
informing it of the revocation of its base access on

19 September 2015 and before I terminated the Contracts for
cause, [appellant] ceased performing the services required by
the Contracts because its personnel did not have access to the
installations where the services under the Contracts were
required to be performed.

(Gov’t mot., ex. 1)

DECISION

Summary judgment is appropriate when there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law. Proverz`s Scz'entijic Corp. v.
Innovasystems, Inc., 739 F.3d 1367, 1371 (Fed. Cir. 2014); Mz`ngus Constructors, Inc. v.
United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987). A material fact is one that may
affect the outcome of the decision. Anderson v. Lz'berly Lobby, Inc., 477 U.S. 242,
248-49 (1986). The moving party bears the burden of establishing the absence of any
genuine issue of material fact, and all significant doubt over factual issues must be
resolved in favor of the party opposing summary judgment However, more than mere
assertions are necessary to counter a motion for summary judgment The government
bears the burden of proof on the issue of correctness of its actions in terminating a
contractor for cause, See Lz`sbon Contractors, Inc. v. United States, 828 F.2d 759, 764
(Fed. Cir. 1987).

The government contends that it is entitled to summary judgment because the
terminations for cause were justified as appellant failed to maintain facility access and to
provide continuous services and did not offer valid excuses for its breaches of contract
(gov’t mot. at 7).

Appellant counters, inter alia, that it had no control over vendor vetting and the
removal of base access was not its fault (app. reply at 1). In support of its opposition,
appellant offered exhibits that do not add anything to the discussion nor do they show any
facts that may be in dispute regarding the termination.

Here, the undisputed record shows that appellant lost its access to the bases that it was
contractually obligated to maintain (SOF 1[1[ 2, 4, 11). The fact that the government entity that
controlled base access was beyond appellant’s control is not a valid excuse for non-performance.
As such, appellant breached the contracts and the government has met its burden of proof that it
properly terminated the contracts for cause, Therefore, finding that there are no disputed
material facts and that the government is entitled to judgment as a matter of law, the motion for
summary judgment is granted.

CONCLUSION

The appeals are denied.

Dated: 29 March 2017

I concur

/’ / W "
’ MARK N. sTEMPLER /
Administrative Judge
Acting Chairman
Armed Services Board
of Contract Appeals

 

 

OWEN C. WILSON
Administrative Judge
Armed Services Board
of Contract Appeals

l concur

RICHARD SHACKLEFORD
Administrative Judge

Vice Chairman

Armed Services Board

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 Nos. 60300, 60302, Appeals of -

_, rendered in conformance with the Board’s Charter.

Dated:

 

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

