ASCT Group, Inc. ( 2022 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
ASCT Group, Inc. ) ASBCA No. 61955)
Under Contract No. 000000-00-0-0000 )
APPEARANCE FOR THE APPELLANT: David J. Muchow, Esq.
Muchow Law
Arlington, VA
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
James D. Stephens, Esq.
Rebecca L. Bockmann, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Middle East
Winchester, VA
OPINION BY ADMINISTRATIVE JUDGE D’ALESSANDRIS
Appellant, Afghan Azimi Group of Supply Construction and Technical, Inc.
(ASCT), was a subcontractor to Advance Constructors International, LLC (ACI) on
ACI’s prime contract with respondent, the U.S. Army Corps of Engineers (USACE or
government), for construction of the Kandahar Regional Police Training Center, in
Kandahar Province, Afghanistan. In February 2013, the USACE terminated ACI for
default, due in part to its failure to pay ASCT and other subcontractors. When the
USACE terminated ACI for default, it planned to retain another contractor to complete
the project, and anticipated giving preference to a contactor that would employ ACI’s
subcontractors. Accordingly, the USACE held an informational meeting with ACI’s
subcontractors and subsequently sent an email “requesting” that subcontractors not
remove from the job site their material that had not been paid for by ACI. The email
stated that the government has “procedures that it can use to pay” for the material. ACI
indicated its desire to sell its materials to the government, and followed-up with the
USACE multiple times. In November 2013, the project was cancelled and the site was
returned to the Government of Afghanistan.
ACI challenged the USACE’s termination decision before the Board. In 2015,
the parties worked-out an unusual settlement where the USACE converted the
termination for default into a no-cost termination for convenience, and used the unpaid
contract balance to fund an escrow account to reimburse ACI’s subcontractors for a
portion of their unpaid invoices. In 2016, ASCT sued ACI in Delaware State Court
seeking $2.8 million. ASCT obtained a judgment against ACI but ultimately settled the
dispute for a $430,000 payment from ACI, that was reimbursed by the escrow account.
ASCT’s settlement with ACI contains a carveout purporting to exempt from the release
ASCT’s claims against the USACE.
In 2018, ASCT filed a claim with the USACE asserting entitlement of
$1,898,835.40 for its material, security and warehousing expenses, construction
equipment, and attorney fees. ASCT asserted that the contracting officer’s oral
statements in the meeting, and the email requesting that subcontractors not remove their
material, were an offer by the government to purchase ASCT’s material and equipment,
and that ASCT accepted the offer by performance, creating an implied-in-fact contract.
The contracting officer awarded ASCT $78,936 based on a finding that an implied-in-fact
contract “might be interpreted to exist,” but that the scope of the implied-in-fact contract
was only for storage of material from the February 2013 email until November 2013
when the project was cancelled. We review the appeal de novo and hold that ASCT has
not demonstrated the existence of an implied-in-fact contract, and deny the appeal.
FINDINGS OF FACT
A. The Contract and Subcontract
On March 31, 2011, the government entered into Contract No. W5J9LE-11-C-0020
with ACI, for the construction of a regional police training facility in Kandahar Province,
Afghanistan (R4, tab 30 at 2). Notably, the contract waived the bonding requirements
normally contained in government construction projects (tr. 207-08). 1 The waiver was in
response to contractors experiencing difficulty in obtaining bonding for contracts being
performed in a war zone (id. at 208). The policy permitting waiver of the bonding
requirements has since been revoked (id.). However, absent a payment bond, there was
not a surety to step-in and pay the subcontractors in the event, as was the case here, that
the prime contractor failed to pay its subcontractors.
On or about January 8, 2012, ACI entered into a subcontract agreement with
ASCT, a small family-owned business (R4, tab 4, tr. 19). Pursuant to the subcontract,
ASCT would be paid $5,322,065 for construction of the project’s dining facility
(DFAC), the DFAC’s dry storage, four classroom facilities, and a latrine facility (R4,
tab 4 at 1-2). ACI was to pay ASCT according to an approved schedule of values (id.;
tr. 91-92), with ASCT required to submit a schedule of values with its requests for
payment (R4, tab 4 at 6). ACI paid ASCT $2,607,848 prior to the project’s termination,
leaving a remaining balance of $2,714,217 on the subcontract (R4, tab 44 at 1). ASCT
1
See Assist Consultants, Inc., ASBCA Nos. 61525, 62090, 21-1 BCA ¶ 37,850 for an
example of an Afghan contractor being unable to meet the bonding
requirements.
2
purchased all the materials and equipment at issue in this litigation as a part of its
performance under the subcontract (tr. 117).
B. USACE’s Termination of ACI for Default
In late 2012, ACI’s subcontractors notified the government that ACI was not
paying them (R4, tab 30 at 2; tr. 154-55). ASCT alleges that ACI stopped paying it in
October of 2012 (tr. 38, 92, 154-55). ASCT stopped performing on the project on
December 17, 2012 (tr. 38-39, 172-73). In the weeks that followed, the USACE
investigated the allegations of ACI’s subcontractors, and took action after concluding
that ACI was not paying its subcontractors (tr. 155-58). The government began to
withhold retainage from ACI on the contract both due to ACI’s failure to make progress
on the project, and because it believed ACI had made misrepresentations on its progress
payment certifications relating to subcontractor payments (id.; R4, tab 30 at 1, 3,
6-7; and FAR 52.232-27, Prompt Payment for Construction Contracts (JAN 2017)).
In particular, the government rejected ACI Pay Request No. 22 outright “due to
concerns regarding payment to subcontractors” (R4, tab 30 at 7; tr. 155-57). In total,
the government withheld $2,506,615.09 from ACI’s progress payments over this issue
(R4, tab 31 at 1). The government decided to terminate ACI for default in part due to
its failure to pay its subcontractors on the contract (R4, tab 30 at 8-10; tr. 158-64).
On February 14, 2013, the government held an informational meeting for ACI’s
subcontractors at a government construction office (tr. 188, 191-94). The government
notified the project’s subcontractors of its intention to terminate ACI, informed the
subcontractors of the next steps in the reprocurement process, and inquired whether
the subcontractors were interested in working for the replacement contractor, or in
selling their materials (tr. 90-91, 185-89). Additionally, the government instructed
ASCT not to deliver any more materials to the project site (tr. 91).
ASCT’s Vice President, Mr. Abdul Azimi, testified that, at the February 14,
2013 meeting, Mr. Boddie, the contracting officer, “promised that [the USACE] had
procedures that they will [use to] pay for the materials directly” (tr. 48). ASCT
additionally submitted affidavits from three other individuals who attended the
February 14, 2013 meeting, each with similar wording, and each dated February 25,
2021, more than eight years after the meeting. Mr. R. Mohammad, the CEO of Bilal
Adil Construction Co., another subcontractor to ACI on the project, stated that
Mr. Boddie “clearly promised the subcontractors attending, that there was a process
from USACE for recovery of funds expended by the subcontractors to date for
materials and equipment that were purchased for the subject contract; and for
continuing to provide security, and that we would be paid for all the project related
expenses incurred” (R4, tab 50 at 1-2). Mr. Ismat Ullah Samadee, the former President
of Sadiq Noor Construction Company, another subcontractor to ACI on the project,
states that Mr. Boddie “promised, in no uncertain terms, that there was a process for
3
recovery of funds expended by the subcontractors to date for materials and equipment;
and for continuing to provide security, and that we would be paid for all of that” (R4,
tab 51 at 1-2). Mr. Mohammad Azimi, a partner in ASCT and the project manager,
stated that Mr. Boddie “clearly promised that there was a process for recovery directly
from USACE for the costs incurred by the subcontractors for materials and equipment
procured for the subject contract; and for continuing to provide security” (R4, tab 52
at 1-2).
Conversely, Mr. Boddie testified that, at the meeting, he stated “that there was a
process where the Government could buy the material . . . [a]nd use it, especially the
long lead items and such that were onsite . . . [and] hand that over to a new contractor as
Government furnished material” (tr. 188-89). Mr. Boddie further explained that his
statements at the meeting were an “explanation of potential of what we could do”
(tr. 195).
There is no transcription or recording of the meeting in the record. Mr. Azimi
testified that he and the other subcontractors were not permitted to bring any
electronics through security, but that they were informed that the meeting was being
recorded (tr. 45-47). Mr. Boddie testified that electronics would have been collected
as a security measure and that he was aware that there was supposed to be a recording
of the meeting, but that it was not done at his request (tr. 227-28).
On February 17, 2013, ASCT sent copies of its unpaid invoices to the government
by email 2 (R4, tab 19 at 1). On February 19, 2013, the government terminated ACI for
default (R4, tab 30 at 1). In its termination decision, the government instructed ACI to
“[s]top all work, make no further shipments, and place no further orders,” except for
authorized work-in-progress or materials it wanted for itself (id. at 10-11). ACI appealed
the government’s termination for default decision to the ASBCA in No. 58604 (R4,
tab 31 at 1; tr. 166). At the time of the termination, ASCT claimed ACI owed it
$1,246,570.09 for its October, November, and December 2012 invoices (R4, tab 26 at 1;
tr. 92).
C. Post-Termination Communication with ACI’s Subcontractors
On February 25, 2013, the government sent an email to ACI’s subcontractors,
including ASCT, that summarized the information provided at the February 14, 2013
meeting (R4, tab 8; tr. 194-96). The email stated in relevant part:
USACE has now begun the process of selecting a new
prime contractor to complete the RPTC
2
Although the invoices are not included with the email at R4, tab 19, the invoices are
in the record at R4, tab 45 (tr. 221)
4
project. . . . When USACE selects the new prime
contractor, it will give preference to potential prime
contractors that promise to award subcontracts to the
companies that formerly had subcontracts under ACI. . . .
In the meantime, USACE wants to be sure that activity
continues at the construction site during the time it takes to
choose the new prime contractor. USACE has decided to
work with one of ACI’s former subcontractors, Areyana
Group, to have it be the prime contractor for a limited
amount of work over the next 3 months. . . . The details of
that short-term contract will be announced to this group as
soon as it is finalized. . . .
Regarding your own company’s materials that are on site but
were never paid for by ACI, we request that you do not
remove them. As I explained in our meeting on 14 February,
USACE has procedures that it can use to pay you for those
materials so that they can be used to finish building the
project. Please contact me if you are interested in selling
those materials to USACE.
(R4, tab 8 at 1-2). Mr. Azimi testified that the email was consistent with the oral
statements at the February 14, 2013 meeting (tr. 49-50, 95-96) and Mr. Boddie
similarly confirmed that the email was consistent with his statements at the meeting
(tr. 195-96).
Based on the record before us, we find that Mr. Boddie’s statements at the
February 14, 2013 meeting are consistent with the February 25, 2013 email summary
of the meeting, and find that Mr. Boddie’s statements, did not constitute an offer to
purchase ASCT’s material or equipment, or to compensate ASCT for its storage
expenses. ASCT’s witness testimony at the hearing, and declarations, are not
consistent with the contemporaneous email summary.
On March 14, 2013, ASCT responded to the contracting officer, stating “as we
owe most of the suppliers now for the procured materials, it would be of our mutual
benefit to sell you our procured materials for your future plans. And it would be our
pleasure to know how long will it take for the process, and what you would require us
to send you” (R4, tab 9 at 3). The government responded that same day indicating that
its Local National Quality Assurance (LNQA) representatives would inventory the
property (R4, tab 9 at 3). On March 20, 2013, after an exchange of emails concerning
the nature of the materials and questions from ASCT about how long the process would
take, a government representative informed Mr. Abdul Mateen Azimi, ASCT’s
5
Vice-President, that he did not “know how long the process will take,” that it was “for
the contracting officer to take action on,” and that the government would “eventually
(I think) process the stored materials for payment but the Contracting Officer is running
the show.” (id. at 2). On March 25, 2013, ASCT sent an email to the government
contracting officer, Mr. Edward Boddie, stating:
As was requested from your side by email, and agreed in
the meeting, it was stated that the procured material for this
project that are not billed to ACI will be paid by USACE.
The lists were sent to your attention for the material we
had procured for our project, that are not billed to ACI.
But neither a positive nor negative response have been
clarified from your side for the procurements payment and
processing.
So please let us know, if these materials will be procured
by USACE and paid to us or not?
(id at 1). There is no record of the government contracting officer ever replying to this
email. ASCT’s own witness testified that ASCT understood there were additional
steps in the process toward reaching an agreement relating to the material (tr. 106-11).
On June 19, 2013, the District Engineer of the Afghanistan Engineer District- South,
COL Vincent V. Quarles, furnished a copy of a letter to ASCT, in which he explained to
another ACI subcontractor that, although he understood the passage of time relating to the
progress of reprocuring the project was financially problematic, “the needs of the end-user
of the facility have been changing as the conditions on the ground change” (R4, tab 10
at 2). On June 26, 2013, the government contracting officer provided a presentation to the
former ACI subcontractors, in which he stated:
A. The needs of the Afghan National Police have changed.
As a result, the ANP now needs fewer buildings of each
type.
B. Because of these changes, USACE will be re-starting
the selection of a new prime contractor for the RPTC
project.
***
6
2. The old RFP has been canceled, and a new RFP
will be issued.
***
A. As explained during the February meeting, there is an
opportunity for the subcontractors to have the materials
they purchased for the original contract be used in the
new contract.
B. To take advantage of the opportunity, former ACI
subcontractors must provide the contracting officer
with documentation that proves that materials were
purchased for the ACI prime contract, and not paid for
by ACI.
1. USACE needs copies of invoices.
2. If materials are still on site, USACE also needs
photographs showing the quantity of materials
and their current location.
C. If a former ACI subcontractor wants to remove the
company’s materials from the RPTC site, the company
has to provide acceptable proof of ownership, and then
USACE will make arrangements to give the company
access to the site to remove the materials.
(R4, tab 11 at 1). ASCT understood that if it wanted to remove its materials from the
project it was free to do so as long as it could prove its ownership to the materials
(tr. 111-13).
On July 15, 2013, ASCT sent an email to the contracting officer, referencing
prior contact between the parties, providing a spreadsheet detailing $907,612.51 in
procured materials 3 (R4, tab 12 at 2, 4-5). At no point did the government’s contracting
officer believe that he made an offer to purchase materials from ACI’s subcontractors
(tr. 174-75). On November 23, 2013, the contracting officer sent a letter to one of
ACI’s subcontractors informing the company that the government had cancelled the
solicitation relating to the project’s reprocurement, that the requirement was also
cancelled, and would no longer be executed by the USACE (R4, tab 13 at 3). ASCT
3
Once again, the document at Rule 4, tab 12 does not contain any attachments;
however, the attachments are located at Rule 4, tabs 20-24.
7
received this letter on November 27, 2013 (id., at 1). ASCT sent an email to Navy
Commander Keith Jensen on November 28, 2013, acknowledging the reprocurement’s
cancellation, and asserting that it had not removed its materials, and had incurred
security and warehousing expenses based on the government’s promise to procure the
materials (R4, tab 14 at 3-4). Commander Jensen responded on December 1, 2013, by
referring ASCT to the Government of Afghanistan (id. at 2). ASCT contacted
Commander Jensen on December 5, 2013, and on December 14, 2013, again asserting a
USACE promise to procure ASCT’s materials (id. at 1-2). Since taking control of the
construction site, the Government of Afghanistan has not permitted ASCT to remove its
materials from the site (tr. 62).
In a May 18, 2014 email, ASCT’s then counsel, Sher Saeedi, contacted
Lieutenant Colonel Gary Davis, the District Chief of Contacting, seeking to “resolve
this issue in an amicable way” (R4, tab 16 at 4). Mr. Saeedi’s email asserted that
ASCT had been “left in a limbo by USACE with assurances of purchase of the goods
at the site” (id.). That same day, LTC Davis, informed ASCT that an agreement to pay
it for materials or material storage was “not allowed,” because the government was not
in a contract with ASCT (id. at 3). In a May 27, 2014 email, Mr. Saeedi asserted that
ASCT had decided not to remove its materials, and had incurred additional security
costs, based on USACE’s assurances (id. at 2). Mr. Saeedi again contacted LTC Davis
on June 9, 2014, stating that he had not heard back from the government and
requesting a response (id. at 1).
D. ACI’s Appeal of the USACE Termination for Default
Mr. Edward Boddie, the contracting officer involved in the decision to terminate
ACI for default and ultimately to settle ASBCA No. 58604, testified that he only settled
the appeal to ensure that the progress payments withheld by the USACE could be used
to compensate subcontractors unpaid by ACI (tr. 168-69). The government used the
full amount of the termination litigation settlement ($2,206,615.09) to fund a trust
account that was used exclusively to ensure ACI reimbursed its subcontractors,
including ASCT, less certain legal and administrative fees it had incurred during the
litigation (tr. 169-71; R4, tab 31 at 2-4). Mr. Boddie did not wish to pay ACI directly,
out of an abundance of concern regarding ACI’s prior nonpayment issues (tr. 168-69).
In exchange for this arrangement, ACI and the government agreed to a no-cost
termination for convenience (tr. 171-72). ACI received no direct compensation from
the settlement-established trust account, only reimbursement after it paid other parties
(tr. 170-71).
E. ASCT Brings Suit Against ACI in Delaware State Court
ASCT asserts that its remaining balance on the subcontract was $2,714,217
(R4, tab 44 at 1). Due to ACI’s default on the contract ASCT never completed the
8
subcontract, and at the time of the termination ASCT asserted that it was owed
$1,246,570.09 by ACI (R4, tab 26 at 1; tr. 92). In 2016, ASCT sued ACI in Delaware
Superior Court for $2,838,360.52, and obtained a judgment in the amount of
$2,838,610.52 (R4, tab 27 at 1). ASCT entered into a settlement with ACI regarding
this litigation, and obtained $430,000 from ACI, an amount financed by the trust
account created by the government’s settlement agreement with ACI relating to their
default termination litigation (R4, tab 6 at 1-2; tr. 70, 169-71; R4, tab 31 at 2-4). As a
part of its resolution of its litigation with ACI, ASCT executed a release of claims
discharging its right to pursue ACI further under the subcontract (R4, tab 6 at 1).
However, the release included a purported carve-out for ASCT’s potential claim
against the USACE, authorizing ASCT to pursue “any equitable adjustment claim(s),
as well as any claim(s) based on quantum meruit, estoppel or other legal theories . . . in
connection with, materials purchased by ASCT in connection with the RPT Project or
their diminution in value, as well as related storage, security and other costs and
expenses” (id.).
F. ASCT Offers to Sell Materials to Government and then Files a
Claim
On April 10, 2017, ASCT’s prior legal counsel, David Felice, sent an email to
the government, stating that “I am writing to gauge the Corps’ interest in purchasing
the materials ASCT maintains on the project site and to reimburse ASCT for expenses
related to maintaining and securing the materials for the past several years” (R4, tab 32
at 1). On June 8, 2017, Mr. Felice again contacted the government, writing “[m]y
client would like to know if the USACE intends to negotiate a resolution to this matter
or not” (R4, tab 17 at 1). The government did not express any interest in purchasing
the materials or reimbursing ASCT for expenses (tr. 75-76).
On June 27, 2018, ASCT filed a certified claim seeking $1,898,835.40,
comprised of $886,890.09 for materials; $463,329.45 for security and warehousing
expenses; $200,130 for accommodations and a camping facility; $277,064.24 for
construction equipment; and $71,421.62 for attorney’s fees (R4, tab 3 at 12). 4 ASCT’s
claim asserts that the USACE’s request that ASCT not remove its materials created an
implied-in-fact contract whereby the government would directly compensate ASCT for
its materials and, since the government never rescinded these instructions, ASCT was
also entitled to be compensated for its storage costs to present (id. at 11). The USACE
4
ASCT’s claim asserts that it is based on implied-in-fact contracts with the USACE
(R4, tab 3 at 7). However, ASCT asserts that there are other legal bases which
may apply, including a unilateral contract, “quantum meruit . . ., quantum
valebant . . . unjust enrichment, promissory estoppel, implied-in-law contracts,
conversion, and taking of property without just compensation under the Fifth
Amendment” (id. at 9-10).
9
contracting officer issued her final decision on October 31, 2018, finding partial merit
in ASCT’s claim (R4, tab 2 at 1-2). The contracting officer found no evidence that the
government had expressed an interest in purchasing ASCT’s equipment, labor camp, or
materials warehoused in Kabul and in Pakistan (id. at 7-8). In addition, the contracting
officer found that the parties had not reached a meeting of the minds regarding a
transaction with government paying ASCT for its materials (id.). However, the
contracting officer found that “an agreement might be interpreted to exist” whereby the
government, in essence told ASCT to “keep your property already at the Project, since
the Government might need it, and in exchange the Government will pay you for the
costs incurred in keeping the material safe” (id. at 8). The contracting officer found that
this was an implied-in-fact contract that ended on November 28, 2013, when ASCT
learned that the government had cancelled the reprocurement, and awarded ASCT
$78,936, conditioned on ASCT submitting a proper invoice for the verified costs (id.
at 11). ASCT timely appealed to the Board (notice of docketing Feb. 1, 2018).
ASCT’s complaint, dated March 4, 2019, asserts five counts, but an implied-in-fact
contract is the only legal theory properly developed. 5 Count IV of ASCT’s complaint,
“Discussion of ASCT’s Claim” asserts that there was a Fifth Amendment taking of
ASCT’s property, and that the government was negligent in failing to properly
investigate and supervise ACI, causing ASCT’s losses (compl. at 35).
In this appeal, ASCT asserts that it is entitled to the same amounts as contained in
its claim, plus an additional $54,612.39 in warehouse and security fees (compl. at 36).
ASCT estimates that $366,088.23 in material and all of its equipment was on the project
site, with the remainder of material ($520,801.86) located either in Kabul, Afghanistan
or in Pakistan (R4, tab 21 at 3). ASCT assumed that the government wanted its off-site
materials (which it warehoused), its equipment, and its camp facilities (tr. 48, 100-04,
123-24, 126).
After ASCT filed its complaint, the government filed a motion to dismiss. The
Board denied the motion to dismiss on February 27, 2020. ASCT Group, Inc., ASBCA
No. 61955, 20-1 BCA ¶ 37,540. In our earlier decision, the Board noted that both
5
Rather than presenting legal theories, the “counts” in ASCT’s complaint mostly
present argument regarding the proper calculation of its claimed damages.
Count I of the complaint is “The Amount Already Offered in the Final Decision
for Costs of Security and Staffing Should be Increased to Reflect the Actual
Costs” (compl. at 15). Count II of the complaint is “All of the Amounts
Claimed Should be Paid. The Following are Point-by-Point Answers to the
Final Decision’s Denial of Appellant’s Claims” (id. at 17). Count III of the
complaint is “Appellant is Clearly Entitled to Recovery Under the Implied-in-
Fact Contract Doctrine” (id. at 25). Count IV of the complaint is “Discussion
of ASCT’s Claim” (id. at 32). Count V of the complaint is “Details of the
Claimed Compensation” (id. at 35).
10
parties “agree that the Board does not have jurisdiction over claims sounding in tort
independent of a contract, and does not have jurisdiction of Fifth Amendment taking
claims” and that ASCT had confirmed that it was only asserting a contractual cause of
action. Id. at 182,289.
DECISION
ASCT asserts that it is entitled to recover based on the existence of an implied-
in-fact contract between the USACE and ASCT created by the contracting officer’s
statements at the February 14, 2013 meeting. The government disputes the existence
of an implied-in-fact contract and additionally asserts that an implied-in-fact contract
is precluded by the existence of an express contract between ACI and ASCT for the
same materials, and, even if there were an implied-in-fact contract, the off-site
materials, and camp facilities were not part of the contract.
I. Implied-In-Fact Contracts
The Board possesses jurisdiction to entertain implied-in-fact contracts. In order
to establish the existence of an implied-in-fact contract with the United States, ASCT
must establish the same elements as for a written contract: (1) mutuality of intent to
contract; (2) consideration; (3) unambiguous offer and acceptance; and (4) actual
authority on the part of the government representative whose conduct is relied upon.
See, e.g., City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990). Like an
express contract, an implied-in-fact contract must be based upon a meeting of the minds;
however, the meeting of the minds is “inferred, as a fact, from conduct of the parties
showing, in the light of the surrounding circumstances, their tacit understanding.”
Trauma Service Group v. United States, 104 F.3d 1321, 1326 (Fed. Cir. 1997) (quoting
Hercules Inc. v. United States, 516 U.S. 417, 424 (1996)); United Pacific Insurance
Company, ASBCA No. 53051, 03-2 BCA ¶ 32,267 at 159,624, aff’d, 380 F.3d 1352(Fed. Cir. 2004).
II. ASCT Has Not Demonstrated the Existence of an Implied-In-Fact Contract
ASCT asserts that the implied-in-fact contract was created by its acceptance of
an offer by the contracting officer, Mr. Boddie (app. br. at 15-21). Thus, we determine
that the ASCT has satisfied the authority requirement. Similarly, ASCT’s allegation
that it maintained the materials on-site for use by the reprocurement contractor
provides consideration (app. br. at 17-18). The government appears to concede that
there was consideration for an implied-in-fact contract for the storage of ASCT’s
11
materials, but not for a contract to purchase the materials (gov’t resp. br. at 31). 6 This
leaves mutuality of intent to contract, and unambiguous offer and acceptance as the
contract formation elements in dispute.
As noted in the findings of fact above, we hold that Mr. Boddie did not make a
contractual offer at the February 14, 2013 meeting. Faced with conflicting statements
regarding the February 14, 2013 meeting, we conclude the contemporaneous statements
and actions of the parties to be of greater weight than the declarations submitted eight
years after the fact. See, e.g., Intermark Managed Servs., Inc., ASBCA Nos. 57654,
57655, 12-2 BCA ¶ 35,091 at 172,344 (quoting Fincke v. United States, 675 F.2d 289,
295 (Ct. Cl. 1982)). First, we look to the February 25, 2013 meeting summary email.
Both Mr. Boddie and Mr. Azimi testified that the summary was consistent with the
statements at the meeting (tr. 49-50, 95-96, 195-96). 7 The email provides that “USACE
has procedures that it can use to pay you for those materials so that they can be used to
finish building the project. Please contact me if you are interested in selling those
materials to USACE” (R4, tab 8 at 2) (emphasis added). The language of the email
provides that the government can use its procedures and that the subcontractors should
contact Mr. Boddie if they were interested in selling the materials. We do not interpret
the email as making a binding offer to the subcontractors, rather Mr. Boddie invited
expressions of interest in selling materials. This interpretation is consistent with the
other contemporaneous statements in the record, and is consistent with Mr. Azimi’s
testimony that he understood that there were other steps that would need to be taken to
reach an agreement with the government for the sale of the material (tr. 106-11). Thus,
we hold that ASCT has not established the existence of an implied-in-fact contract for
the sale or storage of its materials or equipment.
The subsequent communications between the parties are also insufficient to
demonstrate the existence of an implied-in-fact contract. ASCT’s March 14, 2013
response to the contracting officer stated that “as we owe most of the suppliers now for
the procured materials, it would be of our mutual benefit to sell you our procured
materials for your future plans. And [it] would be our pleasure to know how long will
it take for the process, and what you would require us to send you” (R4, tab 9 at 3-4).
Even allowing for a non-native English speaker, who might use more formal and less
forceful language than a native English speaker, the email is clearly an inquiry as to
whether the government would be interested in purchasing ASCT’s supplies, rather
than an email seeking to confirm the details of an existing agreement.
6
The government’s brief does not challenge the existence of an implied-in-fact
contract for ASCT’s storage costs for February through November 2013 as
found in the final decision.
7
As both witnesses testified to the accuracy of the February 25, 2013 email as a
summary of the February 14, 2013 meeting, we do not find the issue of the
possibly missing audio recording to be relevant.
12
Similarly, ASCT’s March 25, 2013 email was an inquiry as to whether the
USACE would purchase the material, rather than an email seeking to confirm an
existing deal. Admittedly, the email starts with the statement that: “[a]s was requested
from your side by email, and agreed in the meeting, it was stated that the procured
material for this project that are not billed to ACI will be paid by USACE” (id. at 1).
However, the email continues with the statement that: “neither a positive nor negative
response have been clarified from your side for the procurements payment and
processing” followed by a request that the USACE “please let us know, if these
materials will be procured by USACE and paid to us or not?” (id.). At best, the email
can be read as saying, “I thought we had a deal, but you haven’t responded, please let
me know.” Unfortunately for ASCT, a statement that “I thought we had a deal” does
not demonstrate a tacit understanding between the parties. Trauma Service Group,
104 F.3d at 1326.
ASCT additionally cites to the government’s June 26, 2013 presentation to
ACI’s former subcontractors as an offer by the government to purchase its materials
(app. br. at 23). However, the statements at the June 26, 2013 are, if anything, more
clearly conditional than the earlier statements. After informing the subcontractors of a
reduction in the scope of the project the government informed the subcontractors that
“there is an opportunity for the subcontractors to have the materials they purchased for
the original contract be used in the new contract” and requesting information from the
subcontractors (R4, tab 11 at 1). The presentation additionally informed the
subcontractors that they could remove their material from the site after demonstrating
ownership (id.). The government’s statement that there was an “opportunity” cannot
be read as a binding offer.
In November and December 2013, ASCT emailed Navy Commander Jensen
alleging that it had not removed its materials, and had incurred security and warehousing
expenses based on the government’s promise to procure the materials (R4, tab 14 at 1-4).
But here, the e-mails read as if ASCT is alleging that the government failed to take a
contemplated future action, not that that the government had agreed back in February to
enter into a contract. The same is true with regard to the communications between
ASCT’s then counsel, Sher Saeedi, and Lieutenant Colonel Gary Davis, the District Chief
of Contacting, in May 2014, where Mr. Saeedi indicated that ASCT wanted to “resolve
this issue in an amicable way” (R4, tab 16 at 4) and that ASCT had been “left in a limbo
by USACE with assurances of purchase of the goods at the site” (id.).
In April 2017, after ASCT sued ACI in Delaware state court, and settled that
action, ASCT’s then attorney contacted the government stating that “I am writing to
gauge the Corps’ interest in purchasing the materials ASCT maintains on the project
site and to reimburse ASCT for expenses related to maintaining and securing the
materials for the past several years” (R4, tab 32 at 1). In June of that year, ASCT’s
counsel again contacted the government, writing “[m]y client would like to know if the
13
USACE intends to negotiate a resolution to this matter or not” (R4, tab 17 at 1). Once
again, these communications, predating ASCT’s claim, can only be read as seeking a
contract for the sale of the materials, and not as support for the existence of a meeting
of the minds.
Moreover, the government’s contemporaneous statements can only be read as
conditional statements that something “could” happen. Statements of future intent do
not constitute an offer. See, e.g., Linear Tech. Corp. v. Micrel, Inc., 275 F.3d 1040,
1050 (Fed. Cir. 2001); Frazier v. American Airlines, Inc., 434 F. Supp. 2d 279,
286-87 (D. Del. 2006), aff’d, 229 F. App’x 171 (3d Cir. 2007) (nonprecedential). The
March 20, 2013, email from a government representative to Mr. Abdul Mateen Azimi,
ASCT’s Vice-President, provided that he did not “know how long the process will
take,” that it was “for the contracting officer to take action on,” and that the government
would “eventually (I think) process the stored materials for payment but the
Contracting Officer is running the show.” (R4, tab 9 at 2) Additionally, the June 26,
2013, presentation to the former ACI subcontractors informed them that “there is an
opportunity for the subcontractors to have the materials they purchased for the original
contract be used in the new contract . . . To take advantage of the opportunity, former
ACI subcontractors must provide the contracting officer with documentation that
proves that materials were purchased for the ACI prime contract, and not paid for by
ACI … USACE needs copies of invoices . . . . If materials are still on site, USACE
also needs photographs showing the quantity of materials and their current location”
(R4, tab 11 at 1). Once again, the presentation uses conditional language about this
being an opportunity and not does not state that the government had already agreed to
purchase the material. The presentation also provided that “[i]f a former ACI
subcontractor wants to remove the company’s materials from the RPTC site, the
company has to provide acceptable proof of ownership, and then USACE will make
arrangements to give the company access to the site to remove the materials” (id.). This
statement is contrary to ASCT’s assertion that it was directed to maintain its material on
site and that the direction was never revoked. ASCT understood that if it wanted to
remove its materials from the project it was free to do so as long as it could prove its
ownership to the materials (tr. 113).
Additionally, we note that ASCT’s April 10, 2017 communication “writing to
gauge the Corps’ interest in purchasing the materials ASCT maintains on the project
site and to reimburse ASCT for expenses related to maintaining and securing the
materials for the past several years” (R4, tab 32 at 1) is inconsistent with ASCT’s
current position that an implied-in-fact contract was created in 2013. ASCT attempts
to downplay the communication as an attempt by its prior attorney to “nudge” the
government into honoring its prior commitment (app. reply at 11). However, the
communication makes no reference to an existing contract as would be expected if
ASCT believed that such a contract already existed. As we have already determined
that the 2013 communications did not create an offer by the government, we interpret
14
this 2017 communication as being consistent with our holding that there was not an
implied-in-fact contract created in 2013.
ASCT argues that offer, acceptance, and mutuality of intent to contract is
demonstrated through its performance. According to ASCT, the fact that it secured its
material and kept the material on site is evidence of acceptance by performance.
(App. br. at 16-17). ASCT asserts that its actions evidence the existence of the
contract because, without an agreement, it would have removed its materials and sold
the materials to others (id. at 18). However, ASCT also makes the conflicting
argument that the materials were made to specification for the police station and
“would have been very difficult to sell” (id. at 18-19). If the material would be “very
difficult to sell” ASCT’s decision to leave the materials on site is more likely evidence
of ASCT’s hope of a possible sale to the government, than evidence of performance of
an implied-in-fact contact.
ASCT additionally speculates that the government was “under great pressure to
make a binding offer” to get the subcontractors back to work (app. br. at 19). ASCT
cites no evidence for this “great pressure” and we do not deem it sufficient to support a
finding of mutual intent to contract. Similarly, ASCT’s speculation that “it is
reasonable to assume the Army had to offer to pay outstanding expenses” (app. reply
at 15) is not evidence that scope of the purported implied-in-fact contract included
off-site materials and equipment.
The government relies upon our holding in Intellicheck, Inc., ASBCA No. 61709,
21-1 BCA ¶ 37,892 for the proposition that simply maintaining the status quo with
respect to the property is not conduct consistent with the existence of an implied-in-fact
contract (gov’t resp. br. at 30-31). In Intellicheck the appellant was a subcontractor on a
multiple award contract with the Navy. As part of its performance, Intellicheck had
possession of certain government property that was to be returned to the Navy
at completion of the task order. In September 2013, the prime contractor filed a claim
related to additional labor costs. The matter was appealed to this Board in March 2014,
and was settled in August 2014. However, Intellicheck had not received instructions for
the return of the property, and did not release the last of the property to the Navy until
the end of December 2015. Intellicheck, 21-1 BCA ¶ 37,892 at 184,029. Intellicheck
subsequently submitted a claim asserting an implied-in-fact contract for its costs of
storing and maintaining the Navy property. Id. at 184,029-30. The Board held that no
implied-in-fact contract had been formed because Intellicheck had not demonstrated the
existence of mutuality of intent, and an unambiguous offer and acceptance. “In order to
establish mutuality of intent, appellant must show, by objective evidence, the existence
of an offer and acceptance.” Id. at 184,131 (citing Guardian Safety & Supply LLC d/b/a
Enviro Safety Products, ASBCA No. 61932, 19-1 BCA ¶ 37,333 at 181,561 (in turn
citing Anderson v. United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003))). “Once an
15
offer is made, ‘acceptance of the offer [must] be manifested by conduct that indicates
assent to the proposed bargain.’” Id. (citing Guardian Safety & Supply, 19-1 BCA
¶ 37,333 at 181,561 (in turn quoting Northrop Grumman Sys. Corp. Space Sys. Div.,
ASBCA No. 54774, 10-2 BCA ¶ 34,517 at 170,237)).
Intellicheck differs from the appeal before us in several aspects; however, the
holding is instructive. As explained above, we do not find the statements at the
February 14, 2013 meeting, or in the February 25, 2013 email, to have constituted an
offer. Thus, we reject ASCT’s argument that it accepted the offer by performance.
Rather, we hold that ASCT’s communications with the government formed the offer.
There is no evidence of conduct by the government that can objectively be seen as
assenting to the implied-in-fact agreement. Intellicheck, 21-1 BCA ¶ 37,892at 184,031; Guardian Safety & Supply, 19-1 BCA ¶37,333 at 181,561. Simply put, the
government’s inaction is not evidence of the formation of an implied-in-fact contract.
ASCT additionally cites as “evidence” of an implied-in-fact contract statements by
the contracting officer in the final decision (app. reply at 8 (“The Government has already
found that this communication was sufficient to create an implied-in-fact contract to pay
ASCT to secure its materials on site when ASCT accepted the offer by continuing to pay
the costs needed to store and secure the materials after February 25, 2013”)). However,
the contracting officer’s final decision is reviewed by this Board de novo. See 41 U.S.C.
§ 7104(b)(4) (action brought before the Board proceeds de novo); Wilner v. United States,
24 F.3d 1397, 1401-02 (Fed. Cir. 1994) (appeal to board or court from contracting
officer’s final decision is de novo). Thus, the statements of the contracting officer, in this
appeal, an individual different from the contracting officer that made the February 2013
statements at issue, are not entitled to any deference. That said, the government has not
requested that we overturn the contracting officer’s final decision. Rather the government
requests that the “contracting officer’s final decision on this matter stand” (gov’t resp. br.
at 41). Thus, although we do not find the existence of an implied-in-fact contract for
ASCT’s storage costs from February through November 2013, we do not disturb the
contracting officer’s final decision.
ASCT also dismisses the lack of price discussions as irrelevant to the question
of contract formation. While ASCT is correct that a failure to agree on a price does
not undermine other evidence of mutual assent (app. reply at 9 (quoting Gardiner,
Kamya & Assocs., P.C. v. Jackson, 369 F.3d 1318, 1322 (Fed. Cir. 2004))) here we
determined that evidence of mutual assent is lacking. Once there is evidence of intent
to contract, the price term can be supplied, but here there was no mutual intent to
contract, and the lack of pricing discussions is further evidence that an implied-in-fact
contract was not created.
Having determined that ASCT has not established the existence of an implied-in-
fact contract, we need not reach ASCT’s arguments regarding the inclusion of
16
equipment and off-site materials in the alleged contract (app. reply at 15-19), or ASCT’s
arguments interpreting its settlement agreement with ACI (app. reply at 13-15).
Having found that ASCT has not demonstrated the existence of an implied-in-fact
contract, we hold that ASCT’s other asserted bases for recovery are not properly before
us, are beyond our jurisdiction, or both. ASCT asserts that the government breached its
duty of good faith and fair dealing (app. br. at 35-40). However, ASCT did not present a
breach of the duty of good faith and fair dealing in its claim to the contracting officer
(R4, tab 3). Accordingly, we lack jurisdiction to entertain this allegation. See, e.g. M.
Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010) (citing
James M. Ellett Constr. Co. v. United States, 93 F.3d 1537, 1543 (Fed. Cir. 1996)).
Even if we possessed jurisdiction to entertain the argument, it would fail because we
held above that there was not an implied-in-fact contract between the USACE and
ASCT. Without a contract, there can be no breach of the duty of good faith and fair
dealing. See, e.g., Scott Timber Co. v. United States, 692 F.3d 1365, 1372 (Fed. Cir.
2012) (holding that the government “could not have breached the covenant of good faith
and fair dealing by its pre-award conduct because the covenant did not exist until the
contract was signed”); Tug Hill Constr., Inc., ASBCA No. 57825, 14-1 BCA ¶ 35,777at 175,024, aff’d, 622 F. App’x 914 (Fed. Cir. 2015) (nonprecedential).
To the extent that ASCT’s complaint can be interpreted as asserting a Fifth
Amendment taking of its property, or a claim for negligence in selecting the prime
contractor, ASCT disclaimed these theories in our prior decision, and they need not be
addressed here. ASCT Group, 20-1 BCA ¶ 37,540 at 182,289.
CONCLUSION
For the reasons stated above, the appeal is denied. The contracting officer’s
final decision, dated October 31, 2018, and awarding appellant $78,936, subject to
ASCT submitting a proper invoice, remains in effect.
Dated: April 26, 2022
DAVID D’ALESSANDRIS
Administrative Judge
Armed Services Board
(Signatures continued) of Contract Appeals
17
I concur I concur
RICHARD SHACKLEFORD OWEN C. WILSON
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 Appeal in ASBCA No. 61955, Appeal of ASCT
Group, Inc., rendered in conformance with the Board’s Charter.
Dated: April 27, 2022
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
18