                    ARMED SERVICES BOARD OF CONTRACT APPEALS

     Appeal of --                                 )
                                                  )
     Khenj Logistics Group                        )      ASBCA No. 61178
                                                  )
     Under Contract No. W91B4M-09-C-7173          )

     APPEARANCE FOR THE APPELLANT:                       Mr. Ismail
                                                          Corporate Officer

     APPEARANCES FOR THE GOVERNMENT:                     Raymond M. Saunders, Esq.


II                                                        Army Chief Trial Attorney
                                                         LTC Joseph J. Jankunis, JA
                                                          Trial Attorney
I               OPINION BY ADMINISTRATIVE JUDGE KINNER ON THE
I               GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT


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             The government has moved to dismiss this appeal as time-barred pursuant to
     the Contract Disputes Act (CDA) statute of limitations. 41 U.S.C. § 7103(a)(4)(A).
     Appellant, acting prose, filed an opposition to the motion arguing that it is entitled to

I    the relief sought. Summary judgment will be granted on this issue if there are no
     genuine issues as to a material fact and the government is entitled to judgment as a
     matter oflaw. The Adamant Grp. for Contracting & Gen. Trading, ASBCA No. 60316,
     16-1 BCA ,r 36,577 at 178,136 (citing Celotex Corp. v. Catrett, 477 U.S. 317,322
     (1986)).

               STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

            The following facts are undisputed. On 14 May 2009, Khenj Logistics Group
     (KLG) was awarded a contract to construct a facility known as "ANA Kandak Beddown
     West," in Farah Province, Afghanistan (R4, tabs 14-15). The facility would consist of
     barracks, support buildings and bunkers (R4, tab 4 at 5). The contract was to be
     performed within 100 days after KLG received the notice to proceed (R4, tab 3 at 1).
     Work was to begin within 7 days of that notice (id. at 6). Contract line item number 0003
     required KLG to obtain worker compensation insurance pursuant to the Defense Base Act
     (DBA) (id. at 4). FAR 52.249-2, TERMINATION FOR CONVENIENCE OF THE
     GOVERNMENT (FIXED-PRICE) (MAY 2004)-ALT. I, was included by reference (id. at 15).

            KLG received the notice to proceed 27 May 2009 (R4, tab 16). It commenced
     performance 1 June 2009, by purchasing DBA insurance for the period of performance
     for $750 (R4, tab 17). KLG also procured materials to prepare for the construction
     work (R4, tab 29 at 39).
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        The Army issued a stop-work order on 5 June 2009 because the location for the
facility had changed (R4, tabs 21, 29 at 37). The Army terminated the contract for
convenience on 10 June 2009 (R4, tab 22). The contracting officer, United States Air
Force Technical Sergeant (TSgt), Alex Gross, assured KLG that it was not responsible
for the termination and that he expected KLG to successfully perform other projects
(R4, tab 29 at 40).

       TSgt Gross also inquired on 5 June 2009 with KLG whether it could confirm its
payment for the DBA insurance and whether it would retain the materials it had
purchased (R4, tab 29 at 39). TSgt Gross assured KLG that the government would
reimburse the cost of the insurance. He also stated the government would reimburse
the cost of the materials if KLG decided not to keep them for future work. (Id.)

      On 14 June 2009, the parties executed a bilateral contract modification which
terminated the contract for convenience (R4, tab 22). The government agreed to pay
KLG the cost of the DBA insurance, and KLG released further claims against the
government (id.).

       KLG describes its attempts to contact the contracting officer after the meeting
on 14 June 2009, first by telephone and second by visiting the base in Afghanistan.
KLG was turned away at the gate. There is no evidence of further attempts by KLG to
contact the contracting officer. The latest record related to the government's payment
of KLG's DBA insurance cost is 21 October 2009, over four months following the
promise to pay for materials on 5 June 2009 (R4, tab 28).

        KLG submitted a claim to the Army Contracting Command at Rock Island on
6 March 2017 (R4, tab 29 at 43-45). In its claim, KLG asserts that it procured
materials for the project and transported them to the work site before the stop-work
order. KLG requested $2,192,884 as reimbursement for the costs it had incurred.
(Id. at 44-45) The contracting officer denied the claim on 18 May 2017 (R4, tab 36
at 7-8). The contracting officer concluded that KLG had retained the materials
purchased and released claims against the government. This appeal followed.

                                     DECISION

       The government filed a motion asserting entitlement to summary judgment based
upon KLG's release and asserting the claim was not filed within the statute oflimitations
of the CDA. In response, KLG argues that it delivered the materials purchased for the
contract to the government. With its reply KLG provided copies of email correspondence
in which TS gt Gross acknowledged receipt of the materials and promised to process the
invoice submitted by KLG. Based upon that response, the government withdrew its
motion for summary judgment regarding the release (gov't reply at 2).


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              The government maintains, however, that KLG's claim is barred by the CDA
      statute of limitations. The CDA requires that:

                    Each claim by a contractor against the Federal Government
                    relating to a contract and each claim by the Federal
                    Government against a contractor relating to a contract shall
                    be submitted within 6 years after the accrual of the claim.

      41 U.S.C. § 7103(a)(4)(A). The government argues that KLG's claim accrued no later
      than 27 June 2009, the date of the email from TSgt Gross promising to promptly process
      the invoice (gov't reply at 2). A claim accrues when the events giving rise to liability
      were known or should have been known. The Boeing Co., ASBCA No. 57490, 12-1 BCA


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      , 34,916 at 171,669. The government asserts KLG knew or should have known, the facts
      to support its claim for reimbursement of its material costs on that date. According to the
      government, to be timely, KLG had to submit its claim by 27 June 2015. That calculation
      is wrong. A promise by an Army official to pay for the materials purchased by KLG did
      not establish "all the events that fixed the alleged liability of the government" to permit
I     assertion of a claim. (Gov't reply at 2) KLG claims the Army failed to pay following its
I

I     promise to do so, not that the promise was made. No claim could accrue until KLG
      learned that the Army failed to honor the promise made by TSgt Gross.


I            On these facts, we can conclude that KLG would have possessed sufficient
      information following the government's last payment to conclude that payment of its


II    materials invoice would not be made in accordance with TSgt Gross's promise. KLG
      certainly would have understood the Army would not make further payment within a
      year. However, extending the date of accrual to the following October does not help
      KLG. Even beginning the CDA six-year limitations period a year after the last date of
I     government payment activity in October 2009, KLG's 6 May 2017 claim failed to

II    meet that period, which ended 21 October 2016.

               In its reply brief, the Army correctly recognizes that KLG's late submission of
      its claim does not end the statute of limitation inquiry (gov't reply at 3). KLG argues
      that it should not be deprived of its claim for material costs merely by the passage of
      the six-year limitation period when it believes the contracting officer committed to
      paying those costs (app. reply br. at 2). Equitable tolling applies to the CDA six-year
      time limitation. Arctic Slope Native Ass 'n, Ltd. v. Sebelius, 583 F.3d 785, 798
      (Fed. Cir. 2009). The Army correctly identifies the standard for application of
      equitable tolling utilized by the Supreme Court when considering an untimely claim
      pursuant to the CDA. The CD A's six-year limitation upon the submittal of a claim
      may be equitably tolled when a litigant has (1) been pursuing his rights diligently, and
      (2) some extraordinary external circumstance "stood in his way and prevented timely
      filing." Menominee Indian Tribe of Wisconsin v. United States, 136 S. Ct. 750, 755
      (2016) (quoting Holland v. Florida, 560 U.S. 631 (2010)).
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             KLG does not identify any action it took to pursue its claim between October 2009
     and March 2017. Nor does it identify a circumstance that impaired its ability to submit a
     claim. Notwithstanding KLG's unsuccessful attempts in June 2009, there was nothing
     preventing further contact with Army contracting officials to submit its claim, as
     confirmed by its successful submission in March 2017. Thus, it is unable to demonstrate
     either element of equitable tolling. KLG's delay in submitting its claim is "a garden
     variety claim of excusable neglect" for which equitable tolling provides no relief.
     Menominee, 136 S. Ct. at 757 (quoting Holland, 560 U.S. at 651).

                                         CONCLUSION

            The government's motion for summary judgment is granted. The appeal is dismissed.

            Dated: 15 February 2018



                                                       Administrative Judge
                                                       Armed Services Board
                                                       of Contract Appeals

      I concur                                         I concur




      RIC*ARDSHACKLEFORD                               J. REID PROUTY
      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. 61178, Appeal of Khenj
     Logistics Group, rendered in conformance with the Board's Charter.

           Dated:



                                                       JEFFREY D. GARDIN
                                                       Recorder, Armed Services

II                                                     Board of Contract Appeals


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