Sang Kash Company ( 2019 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Sang Kash Company ) ASBCA No. 60532
)
Under Contract No. W9 l B4N-l 5-D-8013 )
APPEARANCE FOR THE APPELLANT: Mr. Abdul Bari
President
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
MAJ Ronald M. Herrmann, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE WOODROW
ON THE PARTIES' MOTIONS FOR SUMMARY JUDGMENT
This is an appeal from the Joint Theater Support Contracting Command's
(JTSCC or Army) termination for default against Sang Kash Company (Sang Kash or
appellant). The Army terminated its contract for the supply of bulk concrete with Sang
Kash after Sang Kash lost its base access privileges to Bagram Airfield, Afghanistan.
Pending before the Board is the Army's motion for summary judgment and appellant's
cross-motion. Clause 5152.225-5916 was incorporated into the contract by bilateral .
modification, which required appellant to maintain access to the installation in order to
perform work under awarded task orders (R4, tab 14). After the Senior Commander of
Bagram Airfield Afghanistan revoked appellant's base access, the contracting officer
terminated the contract for default. Appellant appealed the termination for default
arguing that: (i) its base access privileges were revoked as a means for the government to
nullify its contract rights; and (ii) appellant was deprived due process rights.
We grantthe government's motion for summary judgment and deny the appeal.
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION
1. Contract No. W91B4N-l5-D-80l3 (the contract) was a requirements contract
awarded to Sang Kash on July 8, 2015, by CENTCOM (US Central Command)-Joint
Theater Support Contracting Command (JTSCC) to obtain bulk concrete for Bagram
Airfield, Parwan Province, Afghanistan (R4, tab 1 at 50). The contract incorporated by
reference FAR 52.233-1, DISPUTES (MAY 2014) and FAR 52.249-10, DEFAULT (FIXED-
PRICE CONSTRUCTION) (APRIL 1984) (R4, tab 1 at 32-33).
2. The contract required Sang Kash to supply and deliver quantities of bulk
concrete as requested by JTSCC. The contract did not include a guaranteed minimum
quantity and explicitly stated that the quantities set forth in the schedule were estimates.
The following clauses were incorporated into the text of the contract: 52.216-19, ORDER
LIMITATIONS (OCT 1995) and 52.216-21, REQUIREMENTS (OCT 1995) (R4, tab 1
at 33-35). Clause 52.216-19 states, in relevant part: "(a) Minimum order. When the
Government requires supplies or services covered by this contract in an amount of less
than O cm ( quantity), the Government is not obligated to purchase, nor is the Contractor
obligated to furnish, those supplies or services under the contract" (R4, tab 1 at 34)
(emphasis in original). Clause 52.216-21 states, in relevant part:
(a) This is a requirements contract for the supplies or services
specified.... The quantities of supplies or services specified in
the Schedule are estimates only and are not purchased by this
contract. Except as this contract may otherwise provide, if
the Government's requirements do not result in orders in the
quantities described as "estimated" or "maximum" in the
Schedule, that fact shall not constitute the basis for an
equitable price adjustment.
Id. The statement of work (SOW), written into the contract, states in Section 1.1.1 that
the purpose of the contract is: "to obtain bulk concrete for Bagram Airfield. All
other requirements listed in the Statement of Work (SOW) are secondary and not
guaranteed." (R4, tab 1 at 50) (emphasis in original) SOW Sections 2.23-2.34 address
access to military installations and bases in Afghanistan (R4, tab 1 at 56-57). SOW
Section 2.28 states that "Contracting officers may terminate contractors when contractors
lose the ability to access the work site" (R4, tab 1 at 57).
3. Bilateral Modification No. P00002, dated November 10, 2015, added Central
Command (CENTCOM) clause 5152.225-5916 MANDATORY ELIGIBILITY FOR
INSTALLATION ACCESS (OCT 2015) in full text, to the contract (R4, tab 14). The clause
required the prime contractor and all subcontractors to be initially eligible for installation
access to a U.S. and/or coalition installation, and to remain eligible during the entire
period of contract performance. The clause stated, in relevant part:
5152.225-5916
MANDATORY ELIGIBILITY FOR INSTALLATION
ACCESS
(OCT 2015)
(a) U.S. and Coalition Commanders possess inherent
authority to maintain law and order, provide security, and
impose discipline necessary to protect the inhabitants of U.S.
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and/or Coalition installations, U.S. and Coalition personnel
operating outside of installations, and U.S. or Coalition-
funded developmental projects in Afghanistan. This authority
allows commanders to administratively and physically control
access to installations and/or project sites, and to bar
contractors - including prime contractors, subcontractors at
any tier, and any employees, from an installation or site. A
commander's inherent force protection (FP) authority is
independent of an agency's contracting authority, and it may
not be superseded by any contractual term or provision.
(b) The prime Contractor/Vendor acknowledges that:
submission of a bid, offer, or a proposal; acceptance of
contract award of any type; or continuing effort under any
contract that includes this clause; requires that the prime
Contractor/Vendor, and all subcontractors under any affected
contracts be initially eligible -- and remain eligible during the
entire period of contract performance to include any warranty
period -- for installation access to a U.S. and/or Coalition
installation, regardless of whether the performance will take
place on or off a U.S. or Coalition installation.
(2) Failure to be approved in JCCS -- and thereby be eligible
for installation access at the prime and subcontractor levels --
or failure to inform the contracting officer of the names of all
prospective subcontractors (or provide a negative reply), may
render the offeror/contractor ineligible for award or continued
performance. Additionally, any firm that is declared
ineligible for installation access will be deemed non-
responsible until such time as that firm is again deemed
eligible by the appropriate access approval authority.
( d) Installation access determinations arise from the
Combatant Commander's inherent authority and are separate
and distinct from any law, regulation, or policy regarding
suspension and debarment authority. Contractor queries or
requests for reconsideration related to U.S. or Coalition
installation base access eligibility must be directed to the
authority responsible for base access decisions.
(R4, tab 14 at 2)
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4. By letter dated March 25, 2016, the Bagram Support Group (BSG) Commander
of Bagram Airfield revoked Sang Kash' s access to Bagram Airfield, stating, in relevant
part:
Base Access Denial from Bagram Airfield, Afghanistan ...
2. Pursuant to the above references and my authority
delegated to me by the Senior Commander ofBagram
Airfield, you are hereby base access denied from Bagram
Airfield, Afghanistan effective immediately. You are granted
provisional access in order to remove personnel and
equipment from the base for a time period not to exceed ten
(10) days from the date of this memorandum.
3. Violation of this order may result in criminal prosecution
for trespassing under reference a. You may request, within
(60) days of receipt of this notice, that this order be
reconsidered by writing me through the United States Forces-
Afghanistan (USFOR-A) Force Protection Cell.
5. Pursuant to USFOR-A/RS policy, your base access denial
from this installation will apply to all USFOR-NRS
installations in the Combined Joint Operations Area-
Afghanistan. (CJOA-A), [sic] and will be uniformly enforced
by each installation.
(R4, tab 19) (emphasis in original)
5. Pursuant to contract Modification No. P00003, dated March 29, 2016, the
contracting officer (CO) terminated the contract for default for"[ v]iolation of Contract
Clause 5152.225-5916 Mandatory Eligibility for Base Access" and cited to FAR clause
52.249-10 (Default) (R4, tab 21 at 2). The final decision included the standard appeal
rights set forth at FAR 33.21 l(a)(4)(v), CONTRACTING OFFICERS DECISION (R4, tab 21
at 2-3). The modification is countersigned as being received by Sang Kash's
representative (R4, tab 21 at 1, 3).
6. By letter dated March 30, 2016, the CO explained Modification No. P00003 to
appellant, stating that Sang Kash' s status in the Joint Contracting and Contingency
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System (JCCS) had not been approved and its "Vendor Vetting Status" was an
"Unacceptable Risk" (R4, tab 20).
7. By email to the contracting officer dated April 10, 2016, Sang Kash's
representative requested that the BSG Commander of Bagram Airfield reconsider its base
access denial. Attached to its email were supporting documents. (R4, tab 25) There is
no evidence in the record that Sang Kash asserted that it was an approved contractor in
JCCS.
8. On April 13, 2016, Sang Kash appealed the termination to the Board. The
Board docketed Sang Kash's appeal as ASBCA No. 60532.
9. By letter dated May 10, 2016, the BSG Commander of Bagram Airfield denied
Sang Kash' s request for base access reconsideration, stating, in relevant part:
After reviewing your request and the underlying basis for
denial, I have determined that the original denial was based
on substantiated information. Additionally, I have not been
provided any supplementary information which would alter
my original decision. As the BSG Commander, I have the
inherent authority to protect my forces and you have been
assessed as a risk to the welfare of the installation's
personnel. Your request for reconsideration is denied and your
base access denial status is affirmed.
(R4, tab 27)
DECISION
I. Standard Of Review For Motion For Summary Judgment
We will grant summary judgment only if there is no genuine issue as to any
material fact, and the moving party is entitled to judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317,322 (1986); Colonna 's Shipyard, Inc., ASBCA
No. 59987 et al., 16-1BCA136,518 at 177,902. A material fact is one that may affect
the outcome of the decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248-49 (1986); Colonna's Shipyard, Inc., 16-1BCA136,518 at 177,902. The moving
party bears the burden of establishing the absence of any genuine issue of material fact,
and all significant doubt over factual issues must be resolved in favor of the party
opposing summary judgment. Mingus Constructors, Inc. v. United States,
812 F.2d 1387, 1390-91 (Fed. Cir. 1987); Colonna 's Shipyard, Inc., 16-1BCA136,518
at 177,902. Once the moving party has met its burden of establishing the absence of
disputed material facts, then the non-moving party must set forth specific facts, not
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conclusory statements or bare assertions, to defeat the motion. Pure Gold, Inc. v. Syntex
(US.A.), Inc., 739 F.2d 624, 626-27 (Fed. Cir. 1984); Colonna 's Shipyard, Inc., 16-1
BCA ,i 36,518 at 177,902.
II. The Parties' Contentions
The government moves for summary judgment arguing "there is no dispute that
the appellant failed to maintain access to the base where it was obligated to perform"
(gov't mot. at 1). The government contends that the contract was bilaterally amended to
include CENTCOM clause 5152.225-5916 (Mandatory Eligibility for Installation
Access) requiring "that Sang Kash must maintain access to the installation in order to
perform work under awarded task orders" (gov't mot. at 7). "The Government
terminated Sang Kash because the base commander took independent action for a valid,
sovereign reason to ensure force protection .... [and] the contracting officer properly
terminated Sang Kash for defaulf' (gov't mot. at 7-8).
Although not clearly articulated by appellant, the Board interprets its reply to the
government's motion and understands its argument to be that the BSG Commander, who
revoked appellant's base access, was not separate from the contracting officer and the
contract was terminated to get around the guaranteed concrete orders "for convenience"
of the government (app. resp. at 1-5, 10). Appellant states that the awarded contract was
a "[g]uaranty for bulk concrete" estimated to be 15,000 cubic yards while JTSCC had
purchased only 128 cubic meters through the base year (app. resp. at 1). In addition, the
Board further interprets appellant's argument to include a due process concern.
Appellant argues that "we have the right to know why our installation access was
denied,'' as the BSG Commander's base access denial did not articulate specific facts in
his revocation and he summarily determined that appellant was a security "risk"
(app. resp. at 9). Appellant argues that although its base access was revoked, "most of
our on[-]site key personnel are hired immediately by another company inside Bagram Air
base." Appellant listed the names and badge numbers of six employees who were
allegedly hired by another company and gained access to Bagram Air Base (app. resp.
at 10). Appellant requests that "the Board should enter judgment in favor of ... [it] given
that there is no reason that Sang Kash Company posses[s a] risk to [the] welfare of
installation personnel but a falsified information, misuse of authority, and favoritism lead
to termination of [the] contract" which we interpret as a cross-motion for summary
judgment (app. resp. at 10).
III. There Are No Material Facts In Dispute
Appellant alleges that the BSG Commander revoked its base access as a method to
terminate the contract for default, because JTSCC was failing to order the requisite
guaranteed amount of concrete. It is undisputed that the contract is a requirements
contract and did not include a minimum quantity. Nowhere in the contract does it state a
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minimum amount of concrete will be delivered and installed during the base year. The
contract expressly states that the bulk concrete contract line item numbers are estimates
and are not guaranteed. (SOF ,i 2) The record does not support appellant's versions of
the facts sufficient to show material facts are in dispute, nor does the record support
appellant's allegations of alternative reasons for the contract termination. Appellant has
not provided any evidence that JTSCC intended to nullify its contract rights or that the
termination provided JTSCC an economic advantage. The government has met its
burden of establishing the absence of disputed material facts. New Era Contract Sales,
Inc., ASBCA No. 56204, 09-2 BCA ,i 34,147 at 168,795; Emerald Town Group Logistic
Services, ASBCA Nos. 60300. 60302, 17-1 BCA i! 36,709 at 178,753-55.
IV Discussion
It is undisputed that the parties bilaterally agreed to incorporate CENTCOM
clause 5152 .225-5916, which required the contractor to maintain its base access
eligibility during the entire period of contract performance, into the contract (SOF ,i 3).
CENTCOM clause 5152.225-5916 provides that contractors who were found ineligible
for base access "may render the []contractor ineligible for. .. continued performance ... "
(id.). It is undisputed that the contract required appellant to maintain access to the site or
the contract could be terminated for default (SOF ,i,i 2, 3). Acting upon the commander's
authority, appellant's base access privileges were revoked (SOF ,i 4). Appellant does not
dispute that its base access was revoked and that it failed to maintain access to Bagram
Airfield. per the contract.
Appellant's allegations that JTSCC terminated the contract as a means to get
around the ·'guaranteed" or minimum requirements of bulk concrete orders (app. resp.
at 1, 9) are not supported by the contract or the record (SOF ,i,i 3, 4). Clause 52.216-19
stated that JTSCC is not obligated to order supplies/services if it has no need (SOF ,i 2).
In support of its opposition, appellant offered exhibits that do not add anything to the
discussion nor do they show any facts that may be in dispute regarding the termination
(app. resp. at 3-8).
Appellant has raised a due process concern, arguing ··we have the right to know
why our installation access was denied" (app. resp. at 9). Due process normally requires
that a contractor receive notice of the charges impugning its integrity and an opportunity
to be heard. Old Dominion Dairy Products, Inc. v. Secretary of Defense, 631 F.2d 953,
968 (D.C. Cir. 1980); Leslie & Elliott Company, Inc. v. Garrett, 732 F. Supp. 191,
198 (D.D.C. 1990). However, the requirements of due process vary given the
circumstances. Morrissey v. Brewer, 408 U.S. 471,481 (1972) ("[D]ue process is
flexible and calls for such procedural protections as the particular situation demands.").
Installation access decisions are military command decisions. It is well
established that the commanding officer of a military base has wide discretion as to
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whom he or she can exclude from the base. Cafeteria & Restaurant Workers Union,
Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 893-94 (1961) (recognizing power of
post commander recognized when revocation of employee's security access to
installation upon the security officer's determination that she failed to meet the security
requirements of the activity; "It is well settled that a Post Commander can, under the
authority conferred on him by statutes and regulations, in his discretion, exclude private
persons and property therefrom, or admit them under such restrictions as he may
prescribe in the interest of good order and military discipline."); Garco Construction Inc.,
ASBCA No. 57796, 14-1 BCA ii 35,512 at 174,073 (several contractor's personnel
installation access were revoked after implementing a policy to deny base access to
individuals ;'having outstanding wants or warrants, sex offenders, violent offenders, those
who are on probation, and those who are in a pre-release program'' where ;'the purpose of
[the] policy was to ensure the safety of personnel on the installation and preserve the
good order and discipline on the installation."); Conner Brothers Construction Company,
Inc., ASBCA No. 54109, 07-2 BCA ii 33,703 at 166,876; 166,878 (affirmed by Conner
Brothers Construction Company, Inc. v. Geren, 550 F.3d 1368 (Fed. Cir. 2008) (allowing
base commander to deny access to construction company to installation site for 41 days
following the terrorist attacks of September 11, 2001, which "the purpose of the order
was to serve national policy objectives, not to relieve the Corps of its contractual
obligations."); Emerald Town Group Logistic Services, 17-1 BCA ii 36,709 at 178, 753-54
(termination after contractor's base access was revoked after a determination that "its
operations have been determined to be a force protection threat to US and Coalition
Forces at Kandahar Airfield."); Gargoyles, Inc., ASBCA No. 57515, 13 BCA ii 35,330 at
173,415-16 (Contract was properly terminated when the contractor was unable to obtain
access to U.S. military installation in Iraq to deliver 56 light armored vehicles).
A determination of installation access is a matter of inherent command authority
and is not at the discretion of the contracting officer or this Board. The Board will not
question a military commander's revocation of base access unless appellant can provide
substantiated facts to support the contract was terminated to nullify contract rights or to
provide the government with economic gain. Conner Brothers Construction Company,
550 F.3d at 1374-75. In this appeal, because there was no required minimum quantity the
BSG Commander's decision to revoke appellant's base access would not have nullified
appellant's contract rights or provided JTSCC an economic advantage. The fact that the
actions of the government entity that controlled base access were beyond appellant's
control is not a valid excuse for non-performance. Emerald Town Group Logistic
Services, 17-1 BCA ii 36,709 at 178,753-54.
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CONCLUSION
The government's motion for summary judgment is granted. The appeal is denied.
Dated: June 1 L 2019
1/"'· :Z) .1-- ·---
Kt{WNi?rti f1.~ow
Administrative Judge
Armed Services Board
of Contract Appeals
I concur
~---·······--
OWEN C. WILSON
Administrative Judge Administrative Judge
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. 60532, Appeal of Sang Kash
Company. rendered in conformance with the Board's Charter.
Dated:
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PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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