               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                )
                                            )
Lean Construction and Engineering Co.       )      ASBCA No. 59016
                                            )
Under Contract No. W56SGK-l 3-C-7073        )

APPEARANCE FOR THE APPELLANT:                      Mr. Abdul Ghafar Rassin
                                                    Executive Director

APPEARANCES FOR THE GOVERNMENT:                    Raymond M. Saunders, Esq.
                                                    Army Chief Trial Attorney
                                                   L TC Brian J. Chapuran, JA
                                                   MAJ Michael G. Pond, JA
                                                    Trial Attorneys

                 OPINION BY ADMINISTRATIVE JUDGE PAUL

       This is a timely appeal of a contracting officer's (CO's) decision partially
terminating appellant, Lean Construction and Engineering Co.'s (Lean's) construction
contract for default. The Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, is
applicable. A hearing was held at the Board's offices. Only entitlement is before us~
We deny the appeal.

                               FINDINGS OF FACT

        1. On 15 April 2013, the Regional Contracting Center-Capital, Afghanistan,
awarded Contract No. W56SGK-13-C-7073 to Lean for specified construction work to
augment force protection measures at an Afghan National Army Logistics depot in the
province of Kabul and to upgrade the base's western entry control point (ECP) to
facilitate two-way traffic (R4, tab 1 at 1-2, tab 2 at 225).

       2. Pursuant to CENTCOM Clause 952.232-0004, PAYMENT IN LOCAL
CURRENCY (AFGHANISTAN) (AUG 2011), the contract was awarded on the basis of the
local Afghan currency in a fixed-price amount of AFN 6,918,859.84. Based upon the
exchange rate prevailing on the date the contract was awarded, this constituted
approximately $142,297.20. (R4, tab 1 at 3-4, 7-8)

      3. The contract incorporated by reference a host of Federal Acquisition
Regulation (FAR) clauses. Those pertinent to this appeal include FAR 52.236-5(c),
MATERIAL AND wORKMANSHIP (APR 1984 ), which provided, in pertinent part: "All
work under this contract shall be performed in a skillful and workmanlike manner"
(R4, tab 1 at 5). Also relevant is FAR 52.249-10, DEFAULT (FIXED-PRICE
CONSTRUCTION) (APR 1984 ), which stated:

                     (a) If the Contractor refuses or fails to prosecute the
             work or any separable part, with the diligence that will
             insure its completion within the time specified in this
             contract including any extensions, or fails to complete the
             work within this time, the Government may, by written
             notice to the Contractor, terminate the right to proceed
             with the work (or the separable part of the work) that has
             been delayed. In this event, the Government may take
             over the work and complete it by contract or otherwise,
             and may take possession of and use any materials,
             appliances, and plant on the work site necessary for
             completing the work. The Contractor and its sureties shall
             be liable for any damage to the Government resulting from
             the Contractor's refusal or failure to complete the work
             within the specified time, whether or not the Contractor's
             right to proceed with the work is terminated. This liability
             includes any increased costs incurred by the Government
             in completing the work.

(R4, tab 1at24) FAR 52.236-12, CLEANING UP (APR 1984), is also pertinent. It
provided:

                     The Contractor shall at all times keep the work area,
             including storage areas, free from accumulations of waste
             materials. Before completing the work, the Contractor
             shall remove from the work and premises any rubbish,
             tools, scaffolding, equipment, and materials that are not the
             property of the Government. Upon completing the work,
             the Contractor shall leave the work area in a clean, neat,
             and orderly condition satisfactory to the Contracting
             Officer.

(Id.)

       4. The contract also contained 13 attachments which described in minute detail
the various technical requirements. They were listed as follows:




                                            2
   SOLICITATION ATTACHMENTS
   ATTACHMENT TABLE OF CONTENTS
   DOCUMENT TYPE       DESCRIPTION            PAGES             DATE
   Attachment 1   TFP Standard Specifications    83             18 Jun 2009
   Attachment 2   ANSF Construction Standards 10                5 Sep 2011
   Attachment 3   Concrete Tower Design          22             NIA
   Attachment 4   Two Connex Guard Tower         15             NIA
   Attachment 5   Site Layout                    1              NIA
   Attachment 6   Solar Panel Specs              10             NIA
   Attachment 7   Proposed ECP Drawing           1              NIA
   Attachment 8   Steel Panel Gates              10             NIA
   Attachment 9   Drop Gate Standard Design      6              NIA
   Attachment 10  Guard posts                    1              NIA
   Attachment 11  Hesco Wall                     7              NIA
   Attachment 12  Chain Link Fence Design        6              NIA
   Attachment 13  Statement of Work              7              NIA
(R4, tab 1 at 32)

       5. Attachment 1 contained the Coalition Joint Task Force Phoenix Engineers
Standard Specifications (R4, tab 1 at 3 3-115). Part 1, "General Requirements," of the
specification included the following, pertinent provisions:

              4. Material: All materials shall be new and free of defects
                 unless otherwise approved by the Contracting Officer
                 Representative (COR). The Contractor shall remove
                 defective materials from the site at no additional cost to
                 the U.S. or Afghan Government.



              6. Quality of Work: All work shall be conducted in a
                 professional manner, in accordance with accepted
                 methods of construction, as detailed in the attached
                 specifications. U.S. and Afghan Government personnel
                 on site shall make regular inspection of work as it
                 progresses. When work is completed at each stage of
                 the project, Contractor shall submit work for inspection
                 and be signed off by U.S. or Afghan Government
                 personnel on site.




                                            3
              9. Clean up: The Contractor shall clean up the work site
                 at the end of every work day and upon project
                 completion, including the removal of all debris and
                 refuse from the site, to the satisfaction of the
                 Contracting Officer Representative (COR).

(R4, tab l at 34-35)

      6. Part 2 of the Standard Specifications was entitled "Site Construction."
Subsection 2.1 of section 2.0, "GENERAL EXCAVATION," provided:

              Contractor shall perform excavation of every type of
              material encountered within the limits of the project to the
              lines, grades, and elevations indicated and specified.
              Contractor shall transport satisfactory excavated materials
              and place in fill or embankment within the limits of the
              work. Contractor shall excavate unsatisfactory materials
              encountered within the limits of the work below grade and
              replace with satisfactory materials as directed. Contractor
              shall include such excavated material and the satisfactory
              material ordered as replacement in excavation. Contractor
              shall dispose surplus satisfactory excavated material not
              required for fill or embankment in areas approved for
              surplus material storage or designated waste areas.
              Contractor shall dispose unsatisfactory excavated material
              in designated waste or spoil areas. During construction,
              Contractor shall perform excavation and fill in a manner
              and sequence that will provide proper drainage at all times.

(R4, tab 1 at 42-43)

       7. Part 3 of the Standard Specifications was entitled "Concrete." Section 1,
also styled "Concrete," contained the following, relevant subsections:

              1.1.     Cement: 3000 PSI (20.0 MPa) Type I Portland
                       Cement Concrete or equivalent will be utilized in
                       the completion of this project. The Contractor will
                       be required to prepare and place all concrete to
                       include the specific requirements described below.
                       The contractor shall submit the name and brand of
                       concrete for the COR to approve.



                                             4
1.2.    Materials: Concrete will consist of the following
        ingredients only:
        1.2.1. Portland Cement (Type 1) or equivalent
        1.2.2. Clean Sand (O. l 5mm - 4.75mm)
        1.2.3. Clean Course Aggregates (10mm-25mm
        crushed stone)
        1.2.4. Clean Water
        1.2.5. TF Phoenix Engineer Approved Chemical
        Admixtures

1.3.    Concrete specifications: Basic Structural concrete
        shall at least meet these specifications:
        1.3 .1. Designed strength = 21 MPa = 3000 psi
        1.3.2. Minimum Cement content= 340kg/cubic
        meter
        1.3.3. Maximum Water/Cement ratio= 0.68 by
        volume
        1.3 .4. Maximum coarse aggregate size = 25mm
        1.3.5. Slump Range= 101.6mm - 152.4mm

1.4.    Concrete Mix: All mix aggregates will be free of
        dirt, dust and debris contamination. Any mix water
        used will be free of organic materials and dirt, and
        will not have an excessive mineral content.
        Concrete will be mixed mechanically in an
        appropriate enclosure; to ensure adequate mixing,
        proper hydration and temperature control. HAND
        MIXING OF CONCRETE IS SPECIFICALLY
        PROHIBITED. An example of this is mixing
        concrete with a shovel on the ground or in a
        wheelbarrow.



1. 7.   Concrete Protection and Curing: The Contractor
        shall protect the concrete in such a manner as to
        maintain a constant temperature between 50°F
        (10 °C) and 90°F (32.2°C) for 7 days. Acceptable
        methods of concrete protection include: insulating
        layers, moisture barriers, curing compound, or
        environmental enclosures. Continuous moist curing
        is the most desirable objective. Moist curing for
        7 days will typically ensure the 28-day strength will
                              5
                     eventually be reached. The proposed method of
                     protection shall be indicated in the bid proposal
                     package.



             2.      All concrete shall be kept moist to facilitate the
                     concrete curing phase for a minimum of 72 hours
                     after placement however 7 days is preferred.

                     2.1. Ground Preparation: All concrete slabs and
                     foundations will be placed on a properly
                     consolidated base course, at least 200mm (8 inches)
                     thickness. Base course material shall consist of
                     lOmm - 50mm (3/8 inch- 2 inches) crushed stone.
                     Compaction may be accomplished by roller,
                     tamping plate, or any suitable method approved by
                     COR. Sub-grade and base course will be drained
                     and free from any voids or organic materials to a
                     depth of 46 cm (18 inches). The excavated area
                     where the concrete will be placed should be clean,
                     damp, and free from debris, frost, ice, and standing
                     or running water.

                     2.1.1. Vapor Barrier: A minimum layer of0.4mm
                     plastic shall be placed between the concrete
                     foundation and the existing soil to act as a vapor
                     barrier. All joints shall be overlapped 30cm.

                     2.2. Steel Reinforcement: If specified, concrete
                     will be provided with sufficient steel to provide
                     tensile support and prevent cracking. All steel
                     reinforcing bar junctions and lap joints will be
                     welded or tied with steel wire ties. See Metals,
                     Section 5 for additional information.

(R4, tab 1at51-53)

       8. The Standard Specifications also included a section called "HESCO Wall"
(R4, tab 1 at 192-98). Chief Petty Officer Kevin Locher, the government's COR for
much of the contract period, defined a HES CO wall in these terms:



                                           6
              A HESCO is, it's a barrier, and what it is, it's a wire mesh
              cage, and they've got different sizes in height and in
              thickness, and inside that cage there's a fabric, and what
              you do is, you set those up and you fill them full of sand or
              dirt, and it becomes a security barrier against explosions,
              against gunfire, builds a big dirt wall for you, is what it
              basically does, and then you can line them up, you can
              stack them on top of each other to build the size walls that
              you need.

(Tr. 2/24-25) The following provisions of this section are pertinent to this appeal:

              11. Concertina Wire: The contractor shall install two
                  rows of concertina wire along the top of the wall.
                  After a sufficient curing of the concrete cap, two rows
                  of concertina wire shall be installed. The bottom row
                  shall be located along the outer step of the lower
                  HESCO container and the top row shall be located
                  along the center of the top HESCO container. Each
                  roll of concertina wire shall be stretched no more than
                  13 m (42 ft). [C]oncertina wire strands shall be
                  secured onto the steel picket top notch using steel
                  wire. Consecutive coils of concertina wire shall be
                  connected at the steel picket as follows:

                  11.1.     Place the first coil over the picket.
                  11.2.     Place both bottom and top portion of the
                            second coil over picket.
                  11.3.     Using steel wire, ensure that the top of both
                            coils are secured to the picket.
                  11.4.     The contractor shall provide the wire to
                            secure the concertina wire to the pickets.

(R4, tab 1 at 192-94)

        9. Attachment #6 to the contract was styled: "SOLAR PANEL SPECS
PACKAGED PHOTOVOLTAIC SYSTEM." Subsection 1.1, "SUMMARY," of
Part 1, "GENERAL" stated:

              A. This specification section covers Photovoltaic (PV)
                 System requirements including, but not limited to
                 equipment, hardware, software, documentation, labor,
                 materials, and supervision required for the installation

                                            7
                 and maintenance of a selfl-]contained, packaged,
                 photovoltaic system.

              B. This system includes factory, pre-assembled,
                 photovoltaic cells, charge controllers, power inverters,
                 batteries, shunts, over-current protection devices,
                 interconnecting cable, meter, and shipping-operating
                 container to form a complete and operational
                 photovoltaic system capable of providing renewable
                 power to the facility. The system will also include
                 battery storage for a 24 hour autonomy period. [The]
                 system inverters will be capable of interconnect with
                 the emergency power diesel generator to provide power
                 should the autonomy period exceed 24 hours.

              C. Section includes, but is not limited to the following:
                 1. Infrastructure, wiring, connection, and testing;
                 2. Solar panels and panel arrays;
                 3. Service disconnect switches;
                 4. DC combiners;
                 5. Inverters;
                 6. Monitoring equipment and Control software;
                 7. Identifications and signs;
                 8. Shipping-operating containers;
                 9. Provide all labor and materials, and make all
                    necessary connections.

(R4, tab 1 at 164)

       10. Pertinent, detailed specifications relating to the solar panels included:

              3.4 MODULARPV ARRAY INSTALLATION

                     A. The Contractor shall design, construct and install
                        the modular PV arrays on reinforced concrete
                        footers. Footers shall extend deeper than the soil
                        frost depth for the location installed, but not less
                        than 800mm to bearing. Extend footers a
                        minimum of 200 mm above finished grade.

                     B. Provide and install galvanized steel j-bolts and
                        clamps to fasten containers to footers. J-bolts and


                                              8
                        clamps shall be designed to withstand seismic
                        events for the location.

                  C. Provide a minimum of 1200 mm between array
                     rows.

                  D. Route all wiring from PV array to building in
                     conduit underground and stub up to inside of
                     storage-operating container as appropriate.

                  E. Provide and install copper clad steel ground rods,
                     minimum of 3000mm x 19 mm at each comer of
                     the array and bond with copper ground conductor
                     per NFPA 70, Article 250.

(R4, tab 1 at 169-73)

       11. Attachment 12 to the contract was entitled "Chain Link Fence." The
specifications provided:

              1. Chain Link Fence

                 1.1. Site Preparation: The Contractor shall prepare the
                      site in accordance with Task Force Specification
                      PART 2 Site Preparation.

                 1.2. Posts and Braces:

                         1.2.1. The post spacing and configuration shall be
                                arranged per Chain Link Fence Site Plan
                                and Details. When barbed wire and
                                concertina wire are required on the fence,
                                each post shall have equally spaced
                                outriggers.

                         1.2.2. Braces shall be used in each bay adjacent to
                                the comer posts. Braces shall be used on
                                each swing gate door. Braces and posts
                                shall be of 7.5 cm (3 in) diameter pipes.
                                The base metal shall be weldable steel of
                                commercial quality, or better. The steel
                                shall be galvanized or have an equivalent
                                protective coating.

                                             9
     1.2.3. The post shall be set in concrete foundation
            with diameter of 30.5 cm (12 in) and 61 cm
            (24 in) deep. The minimum embedment
            length for the posts shall be 50 cm (18 in).
            The concrete shall be placed according to
            the Task Force Specification PART 3
            Concrete.

1.3. Fence Fabric:

     1.3 .1. The fence fabric shall be 4 mm
             (9-gage/0.148 in) diameter that is woven
             into approximately 5 cm (2 in) mesh such
             that there shall be at least 7 meshes in a
             vertical dimension of 58.5 cm (23 in) along
             the diagonal of the openings. The fence
             fabric shall have knuckled finish on the top
             and bottom edges.

     1.3.2. The fence fabric shall be stretched and
            securely fastened to comer posts with
            stretcher bars having dimensions of not less
            than 0.6 cm x 1.9 cm (1/4 in x 3/4 in) and
            stretcher bar bands having dimensions of not
            less than 0.3 cm x 1.9 cm ( 1/8 in x 3/4 in)
            spaced at 30.5 cm (12 in) intervals. The
            fence fabric shall also be fastened to
            intermediate posts with tie wires or post clips
            and to tension wires with tie wires or hog
            rings. The fasteners shall be spaced at
            approximately 35.5 cm (14 in) on
            intermediate posts and at approximately
            50 cm (18 in) on tension wires.

     1.3.3. Tie wires and hog rings shall be at least 4 mm
            (9-gage/0.148 in) diameter steel and post clips
            shall be at least 5 mm (6-gage/0.192 in)
            diameter steel. Wire ties shall be given at least
            one complete tum. Hog rings shall be closed
            with ends overlapping. The tension wires shall
            be wrapped around end posts. The distance
            from the top of the fabric to the top tension wire

                         10
                               and from the bottom of the fabric to the bottom
                               of the tension wire shall be 75 mm (3 in)
                               maximum. The tension wires shall be at least
                               0.5 cm (6-gage/0.192 in) diameter coil spring
                               steel. Tension wires shall be stretched tight.
                               The bottom tension wire shall be installed on a
                               straight grade between posts by excavating the
                               high points of ground and in no case will filling
                               of depressions be permitted.

                         1.3 .4. All tension wire, tie wires, hog rings and
                                 post clips shall be of good commercial
                                 quality and shall be galvanized or be coated
                                 with an equivalent protective coating
                                 according to Task Force Specification
                                 PART 5 Metals.

                 1.4. Swing Gate:

                         1.4.1. If a swing gate is required, it shall be
                                fabricated from 5 cm (2 in) diameter
                                weldable steel and be galvanized or have an
                                equivalent protective coating. Each gate
                                section shall be hung by at least 2 steel
                                hinges not less than 13 cm (5 in) in width.
                                The hinges shall securely clamp to the gate
                                post and permit the gate to be swung back
                                against the fence. The bottom hinge shall
                                have a socket to take the ball end of the
                                gate frame. Fence fabric shall be welded to
                                the frame. The swing gate shall have a
                                commercial grade steel lock clasp.

                 1.5. Shade Fabric/Screen[:]

                         1.5.1. If shade fabric is required, it shall be
                                fabricated from a sun-resistant PVC
                                material. The screen material shall have
                                the same dimensions as the fence. It shall
                                be hung with metal ties and shall be pulled
                                taut prior to tying.

(R4, tab 1 at 199-201)

                                             11
       12. Attachment 13 was the contractual "Statement of Work" (SOW). Section 1
was entitled "GENERAL CONTRACT REQUIREMENTS," several of which are
pertinent to this appeal. Included among them are:

             1.1. Purpose: The purpose of this project is to increase the
                  force protection measures of the Depot perimeter and
                  upgrade the western ECP to facilitate two-way traffic.

             1.2. Contract Completion Date: The contract shall be
                  completed no later than 90 days after the determined
                  Notice to proceed from the Contracting Officer (CO).



             1.3. Material: All materials shall be new and free of
                  defects unless otherwise approved by the COR/CO.
                  The Contractor shall remove defective material from
                  the site at no additional cost to the Government.



             1.8. Clean up: The Contractor shall clean up the work site
                  at the end of every work day and upon completion of
                  the project, including removal of all debris and refuse
                  from the site, to the satisfaction of the COR.

             1.9. Supervision and Quality Control: The Contractor
                  shall provide project supervision throughout the
                  course of construction. The Contractor shall establish
                  and maintain a quality control system throughout the
                  project. The Contractor shall demonstrate skilled
                  workmanship in constructing a quality product.



            1.11. Quality Assurance: The Contractor shall perform
                  Quality Control (QC) on all Contractor-installed
                  materials and equipment. The Contractor QC shall
                  report any discrepancies between what was ordered
                  and what is delivered, implemented, and performed to
                  the Government or Government QA Contractor
                  within I day of discovery for resolution. No material

                                          12
                   proposed may be substituted with an alternate product
                   unless approved by the government prior to delivery.
                   The Contractor shall correct all deficiencies reported
                   by the Government QA or Government QA
                   Contractor who will inspect the Contractor's work.
                   The Contractor shall issue a QA certification
                   statement to the Government validating that the
                   installed system is free from installation deficiencies
                   and defects for the support service period selected.
                   This statement shall also certify that the Government
                   documented contractor defects have been corrected
                   and shall be submitted prior to submission of the final
                   Systems Acceptance.

(R4, tab 1 at 205-07)

       13. Section 2 of the SOW, entitled "SUMMARY OF WORK," broke the
project down into three basic tasks. They are defined as follows:

             2.2.1. Task 1. The Contractor shall build l(one) ECP that
                    includes 1 concrete guard tower and 2 guard posts.

             2.2.2. Task 2. The Contractor shall build and install (2)
                    two, double storey Connex Guard towers[.]

             2.2.3. Task 3. The Contractor shall clean up any existing
                    or construction-related debris from the construction
                    site at the end of each day and at the completion of
                    this project in accordance to Attachment
                    #I-Standard Specifications, and Afghan National
                    Law.

(R4, tab 1 at 207-08)

       14. The SOW also included a detailed description of the three tasks:

             4.1. Task 1. The Contractor shall level, compact and slope
                  to drain the entire ECP area. The contractor will lay,
                  level and compact 150mm depth of 20/40mm sized
                  crushed gravel over the entire Depot 0 ECP footprint
                  except for the area with the required concrete slab for
                  the steel panel gates following the attachment #7
                  Proposed ECP-Depot 0. In addition the contractor

                                           13
     shall lay, level and compact 150 mm of 20/40mm
     sized crushed gravel in the transitional road
     connecting the ECP to the existing main access road
     as shown on the drawings.

4.1.1 Concrete Guard Tower; shall be built following the
      design in Attachment #3 Concrete guard tower and
      Attachment #6 Solar panel specs. The tower shall
      include l(one) HVAC and l(one) solar electricity
      self power system.

4.1.2 3 x Besco Walls; shall be built in order to create a
      2 (two) way traffic entrance and exit following the
      design of Attachment #7 Proposed ECP-Depot 0 and
      shall [be] constructed in accordance with Attachment
      #11 Hesco walls "para 8". The Concertina shall be
      installed on the exterior side of the HESCO walls for
      the two outside Hesco walls. The contractor shall
      deviate from the standard design on the middle
      Hesco barrier and not install the concertina wire on
      the lOB Hesco; it shall only be installed on the 8B.
      Contractor will stop 2m short of the panel gates to
      create a gap for personnel access.

4.1.3 2 x Drop Gates; shall be built at the entrance and
      exit as specified in accordance with Attachment #9
      Drop gate standard design and Attachment #7
      Proposed ECP Depot 0. The drop arm gates will be
      installed at the end of the HESCO barriers.

4.1.4 2 x Guard Posts; shall be installed beside drop gates
      and constructed in accordance with Attachment #7
      Proposed ECP-Depot 0 and Attachment #10 Guard
      Post. The contractor will deviate from Attachment
      # 10 Guard Post by not including any electrical
      components in these two guard posts. The contractor
      will provide and install one small wooden stove with
      metal exhaust tubing in each guard post.

4.1.5 2 x Steel Panel Gates; shall be installed at the end
      of the ECP in accordance with Attachment #7
      Proposed ECP-Depot 0 and the Attachment #8 Steel
      Panel Gates. The Contractor will be responsible for

                            14
                     the adjustment of the steel panel gate's dimensions to
                     ensure complete coverage of the road opening and
                     complete. The contractor will submit design to COR
                     for approval prior to installation.

              4.1.6 Chain Link Fence; shall connect the existing fence
                    to each side of the ECP with a 45 degree angle as
                    shown in Attachment #7 Proposed ECP Depot 0.
                    The fence construction shall follow the Attachment
                    #12 Chain Link Fence Design. No sniper screen is
                    required.

              4.2 Task 2. The contractor shall build 2, double storey
                  Connex guard towers along the fence perimeter of
                  Depot 0 holding area. The guard towers will include
                  HVAC and solar electricity self power system
                  following design #6 Solar panel specs. The guard
                  tower will follow all the specs of the design in
                  attachment #4 Two CONNEX Guard Tower. The
                  location of the guard towers are shown in attachment
                  #5 Site Layout.

              4.3 Task 3. The Contractor shall clean up any existing or
                  construction related debris from the construction site at
                  the end of each day and at the completion of this
                  project in accordance to Attachment # 1 -Standard
                  Specifications, and Afghan National Law. All
                  damages of main access road shall be repaired at
                  the completion of the project.

(R4, tab 1 at 208-09)

       15. With respect to the contract's period of performance, the SOW stated:

              Tasks contained in this contract shall be completed no later
              than 90 days after date of contract award. Extensions will
              be requested no less than seven (7) days from expiration of
              the contract period. The Government reserves the right to
              terminate the contract within ten (10) days['] notice if
              Contractor fails to fulfill any of its obligations contained
              herein.

(R4, tab 1 at 208)

                                           15
         16. Regarding "Professional Conduct," the SOW provided:

                2. 5 .1. In addition to performing the duties and
                         responsibilities described above, the contractor will
                         ensure that the contractor's staff performs their
                         duties honestly in a competent and lawful manner
                         and within the time required by the Employer. The
                         tasks are to be accomplished in a way which will
                         not cause the Employer to violate any laws or to
                         breach the Employer's Contract or cause the
                         Employer any embarrassment.

                2.5.2. Implement, follow and obey any and all rules,
                       regulations and systems of work devised by the
                       Contractor which are hereby considered an integral
                       part of this contract.

                2.5.3. Act in a non-sectarian manner at all times with
                       demonstrated respect for all ethnic, religious, and
                       other groups that constitute the Afghan people and
                       the members of the Coalition.

                2.5.4. The Contractor shall comply with any mentioned
                       Department of Defense and component specific
                       publications and instructions, or the most current
                       version of referenced material and its specified
                       replacement, in performance of this SOW, unless
                       otherwise noted.

(R4, tab 1 at 208)

       17. The CO, Mr. Mark A. Penwell, issued Lean a notice to proceed, effective
on 21 April 2013. He stated, in part: "You must complete all requirements of this
project within 90 calendar days of the effective date of this Notice to Proceed or
30 July 2013." (R4, tab 6) 1



1
    Since 90 days after the effective date of the notice to proceed is 20 July 2013 and not
        30 July 2013, Modification No. POOOOl was issued on 25 July 2013 to
        incorporate the actual completion date reflected in the notice to proceed (R4,
        tab 11).
                                              16
        18. Because Lean's workers were unable temporarily to gain access to the
Afghan National Army compound where the project was to be performed, the
completion date was initially extended to 13 August 2013 by Modification No. P00002,
and then to 5 September 2013 through Modification No. P00003 (R4, tabs 12, 17;
tr. 21152-53).

           19. On 3 June 2013, the CO issued a "Letter of Concern" to Lean. He stated,
in part:

                 1. This letter of concern is being written to express serious
                 concerns over the ECP and Guard Tower project. The US
                 Government visited the site on two different occasions
                 (26 May 2013 and 2 June 2013). The workmanship and
                 materials that you have provided are inferior to what is
                 described in the Statement of Work (SOW), Task Force
                 Phoenix Standards, ANSF Standards and the contract. The
                 COR, Mr. Steve Glass did not accept the work you [sic]
                 that you had completed to date and sent an email on
                 28 May 2013 to correct the problems. When the US
                 Government visited the site again on 2 June 2013, your
                 company had torn down the previous CMU work and
                 began to reinstall new CMU work. There were several
                 problems noted on the new work that were not to standard.
                 The concrete mortar mix that was used to adhere the
                 CMU' s together was lacking to standards mentioned
                 earlier or missing all together. You also did not have an
                 English speaking supervisor on s~te as outlined in your
                 contract. It is the Contractor's responsibly to complete the
                 work as outlined in the SOW, Task Force Phoenix
                 Standards, ANSF Standards and the contract.

                 2. It is up to the Contractor to complete this project on
                 schedule and obtain quality materials for the project. As
                 the contracting officer, I have considered your duty to seek
                 assistance and guidance regarding obtaining the materials
                 and the overall workmanship; however, your failure to
                 proceed or make progress and perform under the contract
                 is placing the construction of this project in jeopardy.
                 Performance of this contract must be completed in
                 accordance with the SOW.

                 3. Failure to correct this matter in a timely manner will
                 result in more serious actions. This will have a significant

                                              17
              impact on your overall performance rating on this contract
              and will jeopardize your ability to receive future contracts
              with the U.S. Government based on your past performance
              rating.

             4. You are required to submit a response within three (3)
             calendar days of receipt of this letter by official letterhead
             memorandum format only. An email written response will
             not be accepted. Your response shall include a corrective
             action plan and a detailed schedule of completion for the
             construction of the ECP and Guard Tower Project. If you
             find the information in this letter to be incorrect or if you
             have evidence to support the delinquency, you are required
             to address that in your response.

(R4, tab 9 at 2) Lean's response, if any, is not contained in the evidentiary record;
however, the CO testified that Lean "ultimately corrected" the concerns set forth in the
letter (tr. 21154; finding 7).

       20. On 18 August 2013, Chief Kevin Locher, the COR, conducted ajob site
inspection and observed several deficiencies on Lean's part. Most significantly,
Chief Locher noted that Lean had not installed the solar panels for the "two double conex
guard towers." He also stated that the fence Lean has installed was of "poor quality." At
the hearing, Chief Locher testified that these deficiencies were communicated to Lean's
on-site representative. (R4, tab 13; tr. 2113; findings 4, 9-11, 14)

       21. On 19 August 2013, Chief Locher forwarded an email to Lean in which he
noted other deficiencies which had surfaced during his inspection:

             The other issues

             1) The Chigo [HVAC unit][is] not working in the concrete
             tower at the ECP.
             2) The hand rail on the exterior ladder has faulty welds
             and needs re-weld[ing].
             3) In one of the conex towers (and possibly the other
             tower also) conduit from the panel had a water tight elbow
             going to the exterior light over the door. To get wire to the
             outlet for the Chigo, a hole was drilled in the elbow and
             ran loose to the outlet. This needs [sic] fixed.
             4) Both electrical panels needs [sic] the breakers labeled
             in both Dari and English. Once these and the issues


                                           18
              LT Gorlsine outlined are completed we can hopefully get
              out and do a final inspection.

(R4, tab 14 at 1) The issues outlined by Lt Gorsline, the project engineer, related to
various contractual specifications with which Lean had not compiled. Lt Gorsline
described these deficiencies to Lean in the following terms:

              1) 2 x CONNEX GUARD TOWERS:

                      SOW: The contractor shall build 2, double storey
              [sic] Connex guard towers along the fence perimeter of
              Depot 0 holding area. The guard towers will include
              HVAC and solar electricity self power system following
              design #6 Solar panel specs. The contractor will be
              responsible for determining how and where the panels will
              be mounted. The system shall be sized to provide 6 kW
              system output (7.5 kVA) indicated at full load rated power
              1% mean ambient summer operating temperature. The
              guard tower will follow all the specs of the design in
              attachment #4 Two CONNEX Guard Tower. The location
              of the guard towers are shown in attachment #5 Site
              Layout.

                      Attachment 4 Para 12: Mirrors: The Contractor
              shall furnish and install tow [sic] Convex Security Mirrors
              as described in the drawings. Ref page 7 of attachment.

                      Attachment 4 Para 13: Sandbags: The Contractor
              shall also furnish and install 2 rows of filled sandbags
              stacked the entire height of the walls on all four sides of
              the bottom CONNEX unit.

              2) ECP Fence:
                     - Fence tension wires are to be tightened as per
              description in attachment #12 Chain Link Fence
              Specifications Sub Para 1.3 .3.

                      - Fence post footing dimensions are not consistent with
              the attachment #12 Chain Link Fence Specifications Sub Para
              1.2.3: The post shall be set in concrete foundation with
              diameter of30.5 cm (12 in) and 61 cm (24 in) deep. The
              minimum embedment length for the posts shall be 50 cm
              (18in).

                                           19
                     - Barbwire on the top of the fence must be tightened
              and the Concertina wire lashed in.

              3) Ref Sub Para 4.1.4 of So W, Guard Shacks are to have
              small wood stoves in them.

              4) Gravel must be leveled and compacted for the ECP in
              and out routes IAW SoW Task 1: The Contractor shall
              level, compact, and slope to drain the entire ECP area. The
              contractor will lay, level and compact 150mm depth of
              20/40mm sized crushed gravel over the entire Depot 0 ECP
              footprint except for the area with the required concrete slab
              for the steel panel gates following the attachment #7
              Proposed ECP- Depot 0. In addition the contractor shall
              lay, level and compact 150 mm of 20/40mm sized crushed
              gravel in the transitional road connecting the ECP to the
              existing main access road as shown on the drawings.

(R4, tab 14 at 2; findings 8, 11, 13, 14)

      22. On 19 August 2013, the CO issued his second "Letter of Concern" to Lean.
He wrote, in part:

              1. This letter of concern is being written to express serious
              concerns over the ECP and Guard Towers contract. On
              17 August 2013 you reported that you believed the contract
              was complete. When the COR went to the site, several
              discrepancies were found to include:

                       a. No sand bags in the bottom connex towers
                       b. No solar panels were installed by the connex guard
              towers
                     c. The period of performance is expired
                     d. The Chigo did not work in the concrete tower at
              the ECP
                     e. The hand rail on the exterior ladder has faulty
              welds and needs to be re-welded
                     f. In one of the connex towers (and possibly the
              other tower also) conduit from the panel had a water tight
              elbow going to the exterior light over the door. To get
              wire to the outlet for the Chigo, a hole was drilled in the
              elbow and ran loose to the outlet. This needs fixed [sic].

                                            20
        g. Both electrical panels needs [sic] the breakers
labeled in both Dari and English.
        h. Contractor shall furnish and install two Convex
Security Mirrors as described in the drawings. Ref page 7
of attachment.
        i. Fence tension wires are to be tightened as per
description in attachment #12 Chain Link Fence
Specifications Sub Para 1.3 .3.
        j. Fence post footing dimensions are not consistent
with the attachment #12 Chain Link Fence Specifications
Sub Para 1.2.3: The post shall be set in concrete
foundation with diameter of 30.5 cm (12 in) and 61 cm
(24 in) deep. The minimum embedment length for the
posts shall be 50 cm (18 in).
        k. Barbwire on the top of the fence must be
tightened and the Concertina wire lashed in.
        1. 4) Gravel must be leveled and compacted for the
ECP in and out routes IAW SOW Task 1: The Contractor
shall level, compact and slope to drain the entire ECP area.
The contractor will lay, level and compact 150 mm depth of
20/40 mm sized crushed gravel over the entire Depot 0 ECP
footprint except for the area with the required concrete slab
for the steel panel gates following the attachment #7
Proposed ECP-Depot 0. In addition the contractor shall lay,
level and compact 150 mm of20/40 mm sized crushed
gravel in the transitional road connecting the ECP to the
existing main access road as shown on the drawings.
        m. Ref Sub Para 4.1.4 of SOW, Guard Shacks are to
have small wood stoves in them.

The U.S. Government does not take ownership of the ECP
and guard towers until it has been constructed in
accordance with the SOW. The period of performance for
this contract ended 13 August 2013. One no cost extension
has already been granted. The Contractor is required to
submit a new schedule and excusable delay log.

2. It is up to the Contractor to complete this project on
schedule and obtain the materials for the project. As the
contracting officer, I have considered your duty to seek
assistance and guidance regarding obtaining the materials;
however, your failure to proceed or make progress and
perform under the contract is placing the construction of

                            21
              this project in jeopardy. Performance of this contract must
              be completed in accordance with SOW.

              3. Failure to correct this matter in a timely manner will
              result in more serious actions. This will have a significant
              impact on your overall performance rating on this contract
              and will jeopardize your ability to receive future contracts
              with the Government based on your past performance
              rating.

              4. You are required to submit a response within three (3)
              calendar days of receipt of this letter. Your response shall
              include a corrective action plan and a detailed schedule of
              completion for the construction of the ECP and Guard
              Towers. If you find the information in this letter to be
              incorrect or if you have evidence to support the
              delinquency, you are required to address that in your
              response.

(R4, tab 15; findings 4, 8, 11, 13, 14) Lean's response to this letter of concern, if it
exists, is not part of the evidentiary record.

       23. On 27 August 2013, Lt Gorsline and Chief Locher conducted another site
inspection. Through an email of that date, they informed Lean of the results. They
wrote, in part:

              We conducted a site inspection of the Northern CONNEX
              tower foundation and found that the concrete was not to
              standard. The concrete did not have the appropriate
              aggregate and was mixed on the ground adjacent to the
              footing frame. Please acknowledge that you have received
              this email.

(R4, tab 18 at 1; findings 4, 7)

       24. On 31 August 2013, the government conducted another site inspection.
The results triggered a third "Letter of Concern" from the CO. He wrote, in part:

              1. This letter of concern is being written to express serious
              concerns over the ECP and Guard Tower project. The US
              Government visited the site on two different occasions
              (27 August 2013 and 31August2013). The workmanship
              and materials that you have provided are inferior to what is

                                             22
described in the Statement of Work (SOW), Task Force
Phoenix Standards, ANSF Standards and the contract. The
Engineer, Lt Deane Gorsline and the COR SWC Keven
Locher has [sic] not accepted the work completed to date
and has [sic] sent an email on 27 August 2013 to correct
the deficiencies. When the US Government visited the site
again on 31 August 2013, your company went ahead and
placed the connex towers on the concrete pads that were
not built to specifications outlined in the SOW and the TF
Phoenix and ANSF Standards. It is the Contractor's
responsibly [sic] to complete the work as outlined in the
SOW, Task Force Phoenix Standards, ANSF Standards
and the contract.

2. It is up to the Contractor to complete this project on
schedule and obtain quality materials for the project. As
the contracting officer, I have considered your duty to seek
assistance and guidance regarding obtaining the materials
and the overall workmanship; however, your failure to
proceed or make progress and perform under the contract
is placing the construction of this project in jeopardy.
Performance of this contract must be completed in
accordance with the SOW.

3. Your contract expires 5 September 2013. Your contract
will NOT be extended without consideration from your
company. Once the period of performance expires, your
company will be in Default and subject to termination.
Please provide your consideration for review/acceptance
by the Contracting Officer. Failure to correct this matter in
a timely manner will result in more serious actions. This
will have a significant impact on your overall performance
rating on this contract and will jeopardize your ability to
receive future contracts with the U.S. Government based
on your past performance.

4. You are required to submit a response within three (3)
calendar days of receipt of this letter by official letterhead
memorandum format only. An email written response will
not be accepted. Your response shall include a corrective
action plan and a detailed schedule of completion for the
construction of the ECP and Guard Tower Project. You
must also submit any additional information that you feel

                              23
              is necessary as to why the US Government should not find
              you in default of this contract. If you find the information
              in this letter to be incorrect or if you have evidence to
              support the delinquency, you are required to address that in
              your response.

(R4, tab 19; findings 4, 14)

      25. Through an undated letter, Lean responded to the CO's third letter of
concern. Initially, Mr. Rassin acknowledged the deficiencies cited by government
personnel. He wrote:

              I went to the site today and saw some issues such as
              concrete pad under the guard towers look not good, and
              very embarrassing issue was the aggregate in front of
              guard towers - the workers took it from car park - I do
              apologize for that. Despite that we had more than enough
              aggregate in our area which is more suitable for concrete,
              but workers did not bother to bring it from our area but
              instead took it from nearby car park - It is all about them
              being lazy. Likewise the supervisor in the site told me that
              he put good concrete under guard towers but when I visit
              the site it does not look good to me. Regarding the work
              progress I am more concern than you, because every day
              we are losing money or the slower they work the more we
              lose. The solar company gave us very bad time, they are
              working very slowly and unproductive. This Shirking
              problem is the biggest pressure, we feel very week [sic] in
              solving the issue, despite trying many incentivized
              compensations models but no good result so far, may be
              because here [in] Afghanistan, workers are shortsighted
              with no long-run business thinking. The last couple of
              days of thinking and discussion within our firm found that
              shirking problem among workers (the tendency to do less
              work when the return is similar) being dishonest, careless,
              and not having similar vision as the company, are the main
              factors that cause all these problems.

      But then Mr. Rassin attempted to blame the deficiencies on the government
personnel who were administering and inspecting the project. He stated:

              I think it will not be good for us to blame others, so we
              don't want to blame, but it will be good to at least share

                                           24
                our thoughts regarding issues at your end. One of the main
                problems at your end is personal issue, as we discussed this
                before we strongly believe that the new team has personal
                issue with us. Therefore they are biased and over critical.
                If you track their first few emails, you see they only asked
                a couple of deficiencies to be rectified but the more we
                worked the more they found excuses e.g. first they said,
                change the fence angle, then put more concrete under the
                post, then put tension wire, then make straight the
                concertina wire, then fix the gap at the top ... .I am sure they
                will go on and on.

(R4, tab 20 at 1)2 As a part of Lean's efforts to rectify the deficiencies which he had
acknowledged, Mr. Rassin wrote:

                We are done with ECP, as we provided more gravel, fixed
                the faulty welding, the lights, the fence, the wooden stoves.
                We also brought the solar panels and barriers and other
                equipment, we only need to install it. Now the main issue
                is concrete pad under guard towers, please tell us your
                decision regarding this. Also it is important to mention
                that Afghan official desperately want[ s] us to push back
                the location of guard towers, this is due to complain[t]
                from neighboring residents, they believe the guard tower
                breach[ es] their privacy.

(R4, tab 20 at 3)

       26. On 31 August 2013, Lt Gorsline and Chief Locher conducted another
inspection during which they discovered several deficiencies in the concrete work.
Lt Gorsline wrote, in part, as follows:

                Myself and the COR for the ANA ENG Cell, Chief Locher,
                conducted a site inspection of the CSD ECP and CONNEX
                towers today 31/08/2013. We found that the concrete
                quality was as unsatisfactory as it had been on our site
                inspection on the 27/08/2013 as detailed below.
                Additionally, the appropriate cure times are not being
                followed. The concrete would have been poured between
                the 24/08/2013 and the 28th and the CONNEX towers were

2
    By "new team," Mr. Rassin was likely referring to the replacement of the first COR,
         Mr. Glass, with Chief Locher (tr. 2/9).
                                              25
             placed on the foundations as soon as the 31/08/2013. This
             work quality is unsatisfactory and reflects poorly on the
             competence of our departments if we allow this to continue.

             My recommendation is encourage the contractor to
             complete the ECP and then to carry out a partial ha[ n]d
             over of the ECP portion to the ANA. IOT complete the
             ECP the contractor must make the following reparations:
             fix to the Guard Tower lighting, place adequate amount of
             gravel on in and out routes, and install stoves in the Guard
             Shacks. At this point the contractor can be paid for the
             work that he has completed.

             We conducted a site inspection of the CONNEX tower
             foundations on Aug 27 2013 and found that the concrete
             was not to standard. The concrete did not have the
             appropriate aggregate, was mixed on the ground adjacent to
             the footing frame, and rebar was exposed in certain areas.

(R4, tab 21at1; findings 4, 7, 13-14)

        27. On 3 September 2013, the government conducted another site inspection.
Its representatives noted some improvement but also many deficiencies which had not
been rectified. The government's situation report (SITREP), which included several
photographs of the site conditions, stated:

             Was on site today and there was some unexpected
             progress. Mainly in the way of solar panels being installed
             by the two double conex [sic] towers.

             Although the stands for the panels at the moment are
             nothing more than rebar welded on the stands and drove
             into the ground. This won't be acceptable of course. The
             workers on site said they thought it was going to be put on
             blocks. Stairs support has been installed and sandbags are
             being put in the lower conexs [sic] per the SOW. Welds
             on the concrete guard tower hand rail has been repaired.
             The light fixture in concrete tower fixed but there isn't any
             power to the whole tower so not sure if it works.

             No work on the ECP area as far as gravel and fixing the
             fence problems. They stacked CMU blocks under the
             guard shacks. Fences and tension wire still not stretch[ ed]

                                          26
              tight. Gravel still not brought up to thickness indicated in
              SOW. Concrete at ECP area is not up to quality as well.
              Gates needs adjust[ing]. Wheels aren't touching ground.

              Drainage through the wall will need to be re-dug to allow
              run off to run to the ditches. The pad Concrete not to
              standard. Thickness is good but easily chips away and
              very little agragate [sic] in the mix.

(R4, tab 22 at 1-4; findings 4, 7, 9, 11, 14)

        28. On 10 September 2013, Lean forwarded an email to the CO in which it
stated that it had completed the ECP portion of the contract (R4, tab 24 at 1). On
24 September 2013, Lean forwarded an email to the government, stating as follows:

              The subject project was complete and ready for handover
              on Saturday (21109/2013 ), I emailed to Mr. Mark Penwell
              to come for handover, but I never received any reply from
              Mr. Penwell.

              Regarding your point (problems in the project) I should say
              there is no problem in the project (project is absolutely fine),
              the problem is the COR, I knew that because of personal
              issue the COR is not going to accept the project-5 weeks
              ago, he sent us a list of tasks that we have to correct which
              we did.

              Also I should point out that in the last couple of weeks I
              never received any feedback from COR to tell us about the
              problems in the project. I mentioned this issue in our
              official Memorandum (COR is not willing to contact us)
              informing Mr. Mark Penwell that once our project is
              complete we will not accept any changes, but Mr. Penwell
              did not do anything about this and we received no email
              from USG telling us about any problem. So, we ended our
              contract with our workers and sub-contractors, hence we
              cannot do anything now and we are sure that the project is
              absolutely fine, please kindly process our payment as the
              USD exchange rate is badly changing and we are losing.




                                                27
              Moreover, I want to inform you that ANA started using the
              Guard tower (see photos), now using our facility and not
              paying for that is not FAIR.

(R4, tab 26 at 1)

        29. On 29 September 2013, the CO accompanied by Chief Locher and Lt Gorsline,
conducted another site visit, relying upon Lean's assurances that the project had been
completed. By this point in time, the revised contractual completion date of 5 September
2013 had elapsed. In his memorandum of 29 September terminating the contract for
default, the contracting officer noted deficiencies with the concrete slabs under the feet of
the CONNEX towers, unacceptable installation of the solar panels, failure to provide a
certified electrician, defective welds, unfilled sandbags, failure to install gravel in the ECP
area, and improper installation of the wood stoves in the guard towers. The CO concluded
that the contract was not complete and that it would take Lean "considerable weeks to
correct" the various deficiencies. (R4, tab 28 at 1-3) A cure notice requirement was not
contained in the Default clause (finding 3). However, the government reserved "the right"
in the SOW to issue such a notice. That the government chose not to exercise this right
does not affect the efficacy of the termination under the facts presented here (finding 15).

        30. During the site visit of 29 September 2013, the CO stressed to Mr. Rassin
that Lean could only be paid for the work which it had completed in accordance with
the SOW. Mr. Rassin became very agitated and replied: "Your attitude[] and poor
representation of the American Government is [sic] going to result in increased
insurgent activities." (R4, tabs 27, 32) The government representatives who were
present viewed this as a threat and immediately left the project site (R4, tabs 33, 34).
Despite his defiant attitude at the parties' meeting of 29 September 2013, Mr. Rassin,
in his hearing testimony, conceded several of the deficiencies noted by the
government. For example, he admitted through one of his photographs that his forces
had constructed only half of the concrete slab under the steel panel gates, as required
by the contract (tr. 2/93-96; findings 4, 7, 13). In addition, Mr. Rassin admitted that
Lean did not comply with the contractual requirement to provide 150 mm of 20/40 mm
crushed gravel over the entire ECP footprint (tr. 3/21-22, 102; finding 14 ). Also
Mr. Rassin admitted that the guard posts were placed on concrete blocks, rather than
on a concrete foundation. Indeed, he opined that a foundation was not even required.
(Tr. 3/30; findings 4, 13-14, 24, 26) Also, Mr. Rassin admitted that Lean did not
install concrete footers for the solar panel array frame (tr. 3/86-89; findings 4, 9, 14).
Finally, Mr. Rassin admitted using parking lot gravel for the concrete used for the
CONNEX guard tower foundation. He also conceded that Lean never corrected this
deficiency (tr. 3/136-37; findings 4, 7, 12-13).




                                            28
       31. On 1 October 2013, the CO forwarded another notice of termination for
default to Lean, in which he stated, in pertinent part: "The period of performance
ended on 5 September 2013 [and] you have only completed 73.96 percent of the
project" (R4, tab 30 at 1). This completion percentage was based upon detailed
calculations performed by Lt Gorsline and Chief Locher. Using the "Bill of
Quantities/Materials that was provided by Lean" as part of its proposal, the project
engineer performed the following tasks:

              I have systematically gone through each task and assigned
              a[ n] overall percentage of completion for each task.

              I based it equally on the percentage of work complete as
              well as the percent of materials provided.

              I took the value being charge[ d] by Lean Corps for each
              task and applied the percentage completion.

              I took the final value of work completed and divided it by
              the work Leans Corps was billing us for to find the
              TOTAL PERCENT COMPLETION: 74%.

(R4, tab 29) This percentage figure gave Lean credit for various sub-tasks which it
had not fully completed. Attached to Lt Gorsline's memorandum were various
photographs depicting the state of work on the contractual sub-tasks after Lean had
completed its efforts (R4, tab 29, passim). At the hearing, Chief Locher gave credible
testimony describing the analysis which he and Lt Gorsline had performed regarding
the completion percentages of the various sub-tasks in minute detail (tr. 2/69-77).

       32. On 15 November 2013, Lean timely appealed the CO's final decision to
this Board. In its complaint, Lean alleged that it had completed 100% of the work on
the project (comp I. -,r 15).

                                      DECISION

       It is axiomatic that the government bears the burden of proving that a default
termination was proper. Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 763
(Fed. Cir. 1987). Moreover, it is settled law that a default termination is a drastic
sanction which should be sustained only for good grounds and on solid evidence.
JD. Hedin Construction Co. v. United States, 408 F .2d 424, 431 (Ct. Cl. 1969). If the
government establishes a prima facie case that the termination was proper, the burden
of production, or going forward with the evidence, shifts to the contractor. Benju
Corp., ASBCA No. 43648 et al., 97-2 BCA -,r 29,274 at 145,654.


                                           29
       Here, the government has met its burden. Although the contractual completion
date was extended from 30 July 2013 to 5 September 2013 through two modifications
(finding 18), Lean did not complete the work. Throughout the performance period, the
CO kept Lean informed of its deficiencies through three letters of concern (findings
19, 22, 24). Despite continual efforts on the parts ofthe CO, COR, and the project
engineer, Lean was unable to rectify its deficiencies and to complete the project
(findings 19-31 ).

         In its pleadings and at the hearing, Lean argued that it had, in fact, performed
100% of the contractual requirements. This contention is not persuasive. The analysis
conducted by Chief Locher and Lt Gorsline demonstrates that, at best, Lean completed
74% of the work by the revised contractual completion date (finding 31). Hence, we
must reject Lean's argument in this regard. Referring to an earlier alleged conclusion
by Mr. Glass, the first COR on the project, that it had completed 80% of the project,
Lean contends that he signed a DD250 form to this effect and that the completion
percentage could not have declined from 80% to 73.96% (app. br. at 3): However, a
review of Mr. Glass's testimony reveals that the 80% figure was only an approximate
number. Moreover, there is no record evidence that Mr. Glass executed a DD250 form
to this effect (tr. 2/216). Finally, as part of his inspection, Mr. Glass never inspected
either the solar panels for the CONNEX guard towers or the towers themselves
(tr. 2/217-21). Based on Mr. Glass's testimony, the Board declines to give credence to
the 80% figure.

        Lean also attacks the probative value of the site photographs used by the
government to demonstrate the various deficiencies which had not been resolved at the
time when the contract was partially terminated for default (app. br. at 18). The Board
also rejects this argument. Chief Locher vouched in his testimony for each of the
photographs, explaining when and under what circumstances they were taken. In
addition, the CO, Mr. Penwell, testified that he accompanied Chief Locher and
Lt Gorsline to the job site on 29 September 2013 and reviewed each part of the project
to determine what were discrepancies and which part of the work was properly
performed. (Tr. 2170-77, 161)

       Lean also contended that the default termination was the result of a personal
animus against it by government personnel (finding 25). There is no credible record
evidence of any bias against Lean by any government representatives. Accordingly,
we also reject this contention.




                                           30
                                  CONCLUSION

      The appeal is denied.

      Dated: 18 May 2016



                                                MICHAEL T. PAUL
                                                Administrative Judge
                                                Armed Services Board
                                                of Contract Appeals

 I concur



  ~M~
MARK N. STE~LER                                 RICHARD SHACKLEFORD
Administrative Judge                            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. 59016, Appeal of Lean
Construction and Engineering Co., rendered in conformance with the Board's Charter.

      Dated:



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




                                         31
