Nassar Group International N.G.I. S.A.L. (OffShore) R.C., doing business as NGI Afghanistan for Contracting ( 2022 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of - )
)
Nassar Group International N.G.I. S.A.L. ) ASBCA Nos. 58451, 59465, 59701
(OffShore) R.C., doing business as NGI )
Afghanistan for Contracting 1 )
)
Under Contract No. W917PM-07-C-0085 )
APPEARANCE FOR THE APPELLANT: Francisco Escalante Esq.
Escalante Law, P.A.
Miami, FL
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Rebecca L. Bockmann, Esq.
Traci N. Cunningham, Esq.
Engineer Trial Attorneys
U.S. Army Engineer District, Middle East
Winchester, VA
OPINION BY ADMINISTRATIVE JUDGE SWEET
These appeals involve disputes arising out of a contract between the Army
Corps of Engineers (Corps or government) and appellant Nassar Group International
N.G.I. S.A.L. (OffShore) R.C., doing business as NGI Afghanistan for Contracting
(the Appellant) to design and build a garrison in Afghanistan. For its claim, the
Appellant asserts that the government constructively suspended the contract by
delaying the issuance of documents needed to obtain tax exemptions for imports from
the Government of the Islamic Republic of Afghanistan (GIRoA), and mandating
site-access for the United States Army (Army) and the Afghan National Army (ANA).
The government also asserts a claim to reduce the contract price due to the Appellant’s
alleged failure to install insulated grounding conductors separate from the electrical
system neutral conductor in all feeder and branch circuit raceways. The parties have
elected to proceed under Board Rule 11. In its Rule 11 Brief, the government moves
to dismiss these appeals on the grounds that the original named appellant—Nassar
Group International—was not the real party in interest. 2 The Appellant opposes that
motion, and cross-moved to amend the caption.
1
As discussed in greater detail below, we grant the Appellant’s motion to amend the
caption.
2
Following briefing, we held a hearing limited to the real party in interest issue.
After having reviewed the parties’ briefs and other filings, we deny the
government’s motion to dismiss, and grant the Appellant’s cross-motion to amend the
caption. We deny the Appellant’s claim regarding the tax exemption documents
because the procedure for issuing those documents was a sovereign act, and, in any
event, the Appellant has failed to meet its burden of showing that there were
unreasonable delays in issuing the tax exemption documents that delayed the contract.
We also deny the Appellant’s claim that the government delayed the project by
mandating site-access for the Army and the ANA because that is a new claim over
which we do not possess jurisdiction and, in any event, the Appellant waived that
claim. Finally, we deny the government’s claim because it has failed to satisfy its
burden of showing that the Appellant did not install insulated grounding conductors
separate from the electrical system neutral conductor in all feeder and branch circuit
raceways. 3
FINDINGS OF FACT
I. The Appellant’s Structure
1. Nassar Group International N.G.I. S.A.L. (OffShore) R.C. registered in
Lebanon as an off-shore joint stock company (Nassar Decl. (app. reply ex. 1) (Nassar
decl. II) ¶ 1(c), ex. A). 4
2. When Nassar Group International N.G.I. S.A.L. (OffShore) R.C. began
doing business in Afghanistan in 2007, it registered with the GIRoA’s Trade, Transit
and Investment Directorate as Nassar Group International N.G.I. S.A.L. (OffShore)
(Nassar decl. II ex. B).
3. Nassar Group International N.G.I. S.A.L. (OffShore) R.C. used the name “NGI
Afghanistan for Contracting” (Nassar decl. II ¶ 1(g)). NGI Afghanistan for Contracting
was a wholly-owned subsidiary of Nassar Group International (app. br. ex. D at 2).
However, NGI Afghanistan for Contracting was not a separate legal entity (tr. 16; Nassar
decl. II ¶ 12). For example, there is no official documentation creating or recognizing
NGI Afghanistan for Contracting as a separate legal entity, such as articles of
incorporation (tr. 16).
4. During performance, the government treated Nassar Group International
N.G.I. S.A.L. (OffShore) R.C. and NGI Afghanistan for Contracting as the same entity.
While the contract was with NGI Afghanistan for Contracting (R4, tab 10 at 1-2), the
3
We grant the government’s motion in limine to admit certain documents.
4
The parties seem to use “Nassar Group International” or “NGI” as short-hand for
Nassar Group International N.G.I. S.A.L. (OffShore) R.C., including in the
original caption. See, e.g., (compl.; gov’t br. at 24; app. reply at 6-8). For
clarity, we will use the full name.
2
government made payments to Nassar Group International N.G.I. Offshore S.A.L. in
Lebanon (Nassar decl. II ex. D).
5. Nassar Group International N.G.I. S.A.L. (Offshore) R.C. and NGI
Afghanistan for Contracting have different Commercial and Government (CAGE)
codes (compare R4, tab 10 at 2 with gov’t reply ex. G) and Data Universal Numbering
System (DUNS) codes (tr. 30-31). 5 The Appellant registered Nassar Group
International N.G.I. S.A.L. (Offshore) R.C. and NGI Afghanistan for Contracting with
different DUNS numbers because it was the Appellant’s first time working with the
government, and it was not familiar with the DUNS system (tr. 31).
II. The Appellant’s Claim
A. The 0085 Contract
6. On October 23, 2007, the government awarded Contract No. W917PM-07-
C-0085 (0085 Contract) to NGI Afghanistan for Contracting. The 0085 Contract was
for the design and construction of an ANA Garrison at Khair Kot, Paktika Province,
Afghanistan. (R4, tab 10 at 1-2) The period of performance was 240 calendar days
(id. at 3).
7. The 0085 Contract required the Appellant to prepare and submit progress
schedules every month using the Critical Path Method (CPM) of network calculation
(R4, tab 10 at 190). The 0085 Contract also indicated that the project schedules shall
be used to measure the progress of the work, evaluate time extensions, and provide a
basis for progress payments (id.).
8. The 0085 Contract incorporated by reference Federal Acquisition Regulation
(FAR) 52.242-14, SUSPENSION OF WORK (APR 1984) (R4, tab 10 at 35), which
provided that:
If the performance of all or any part of the work is, for an
unreasonable period of time, suspended, delayed, or
interrupted (1) by an act of the Contracting Officer in the
administration of this contract, or (2) by the Contracting
5
According to DFARS 252.204-7004, CENTRAL CONTRACTOR REGISTRATION
(52.204-7), Alternate A (Nov. 2003), which was incorporated into the
solicitation, a CAGE code is a “code assigned by the Defense Logistics
Information Service (DLIS) to identify a commercial or Government entity”
(R4, tab 3 at 35). According to DFARS 252.204-7004 a DUNS number is a
“9-digit number assigned by Dun and Bradstreet, Inc. (D&B) to identify unique
business entities.” (id.).
3
Officer’s failure to act within the time specified in this
contract (or within a reasonable time if not specified), an
adjustment shall be made for any increase in the cost of
performance of this contract (excluding profit) necessarily
caused by the unreasonable suspension, delay, or
interruption . . . However, no adjustment shall be made
under this clause for any suspension, delay, or interruption
to the extent that performance would have been so
suspended, delayed, or interrupted by any other cause,
including the fault or negligence of the Contractor.
FAR 52.242-14(b).
9. The 0085 Contract also incorporated FAR 52.229-6, TAXES-FOREIGN
FIXED-PRICE CONTRACTS (JUN 2003), which stated that the contract price
generally included all applicable taxes and duties (R4, tab 10 at 34; see generally
FAR 52.229-6(c)-(d)). FAR 52.229-6(i) required that “[t]he Contractor shall take all
reasonable action to obtain exemption from or refund of any taxes or duties . . . .”
Pursuant to Defense Federal Acquisition Regulation (DFAR) 252.229-7001, the
0085 Contract expressly stated that “[t]he Contractor may obtain a refund of the
import duties from its government or request the duty-free import of an amount of
supplies or components corresponding to that used from inventory for this contract”
(R4, tab 10 at 46). The 0085 Contract also stated that “[c]ompliance with all customs
and import rules, regulations, and restrictions” is the Appellant’s sole responsibility
(R4, tab 10 at 162). Finally, the 0085 Contract indicated that:
It is the responsibility of the contractor to be
knowledgeable of and to abide by any and all applicable
customs clearance procedures and requirements that may
be necessary for the transportation of supplies and
equipment into Afghanistan . . . . The US Army Corps of
Engineers, Afghanistan Engineer District, neither controls
nor is responsible for any such customs clearance
procedures, requirements, or changes thereto.
(Id. at 165)
B. The CCR Procedure
10. Pursuant to the Status of Forces Agreement (SOFA) between the
government and the GIRoA, goods imported into Afghanistan for the exclusive use of
the government were not subject to taxation (R4, tab 43 at 25). The United States
Embassy in Kabul issued a Standard Operating Procedure (SOP) for Customs
4
Clearance Request (CCR) Operations, which outlined a procedure for obtaining tax
exemptions (id.). The express purpose of the SOP was “to ensure that the procedures
used to import/export [] goods and supplies, for use by [the United States Government
and the Department of Defense (DOD)] comply with the terms and conditions
according to those arrangements made under the SOFA” and that the tax “exemption is
not abused” (id.). There is nothing in the SOP suggesting that the government adopted
the CCR procedure specifically to nullify a right under the 0085 Contract or relieve the
government of its contractual obligations (id.). The CCR procedure applied to “all US
Federal Agencies, US Military, DOD Civilians, contract companies or supplies
contracted by the US, or any other organization that intends to import or export goods
for the ultimate consumption of DOD personnel” (id.).
11. The SOP did not indicate how an importer—such as a contractor, supplier,
shipping agent, or carrier—should commence the CCR procedure (R4, tab 43 at 21,
45) Rather, the SOP started with the contracting officer’s representative (COR)
emailing a CCR for a Diplomatic Note to the Liaison Officer (LNO) at the United
States Embassy. (R4, tab 43 at 21, 45). Then, the importer was responsible for
providing the LNO: (1) a bill of lading, Airway bill, or contract of carriage; (2) a
commercial invoice; (3) a customs declaration; and (4) a packing list (collectively,
Importer Documents) (id. at 25-26, 46). 6 Third, the United States Department of State
(DOS) would issue a Diplomatic Note requesting tax exemption (id. at 26). Next, the
importer took the CCR, Diplomatic Note, and other documents to the GIRoA Ministry
of Foreign Affairs (MoFA) and Customs at the GIRoA Ministry of Finance (Customs)
to obtain stamps and signatures (id.). Once approved by the GIRoA, the imports could
clear Customs and be released for final delivery (id. at 46).
12. The SOP did not indicate how long it should take the government to issue
CCRs or Diplomatic Notes (R4, tab 43 at 21). The SOP indicated that the process time
could vary between 2 days and 10 days for the MoFA, and should be between 5 days
and 7 days for Customs, but noted that the time would be much longer if the expediter
does not check with Customs frequently (id. at 43).
6
The Appellant claims that only a flow chart in a power point required an importer to
submit the Importer Documents, and that that flow chart was inconsistent with
the SOP requirement that only the COR could send electronic documents to the
LNO (app. br. ¶ 7). However, the SOP also required an importer to submit the
Importer Documents, and that requirement was not inconsistent with the
requirement that only the COR could send electronic documents because the
SOP clearly stated that the importer should provide the LNO “hard copy
documents” (R4, tab 43 at 25-26).
5
C. Performance
13. As modified, the contract completion date was August 8, 2012 (R4,
tabs 37, 40).
14. The Appellant claims that the following delays occurred in the government
issuing the CCRs and the Diplomatic Notes:
Table 1: Claimed CCR and Diplomatic Note Delays
(a) Shipment (b) Date (c) Date (d) Date (e)
Request CCR Issued Diplomatic Claimed
to Corps (# of days Note Issued Delay
from (# of days (days) 7
request) from CCR)
1. AC Units 01/06/11 02/10/11 02/24/11 (14) 40
(BHBAHPKHI1000064) (36)
2. Electrical Items 04/02/11 04/04/11 (3) 05/17/11 (43) 36
(MAEU861652858)
3. Load Bank 04/04/11 04/18/11 04/23/11 (5) 0
(15)
4. Panel Boards 04/02/11 04/05/11 (4) 05/12/11 (37) 0
5. Electrical Cables 04/11/11 04/18/11 (8) 04/24/11 (5) 0
(CMR#015952)
6. Cables (016478) 04/18/11 04/25/11 (8) 06/07/11 (43) 21
7. PEB, KSA (ES11030067) 05/17/11 06/04/11 06/30/11 (26) 23
(19)
8. Ceiling Diffuser 05/30/11 06/08/11 06/21/11 (13) 0
(TR1322961) (10)
9. Lighting Fixtures 06/04/11 06/20/11 07/06/11 (16) 6
(17)
10. Electrical Materials 06/04/11 06/20/11 07/06/11 (16) 0
(17)
7
The Appellant calculated the claimed delay by first subtracting 10 days—which the
Appellant asserts was the reasonable time it should have taken after receiving a
request for the government to issue a Diplomatic Note—from the number of
days it actually took after receiving a request for the government to issue a
Diplomatic Note. Then, the Appellant subtracted days that overlapped with any
purported delays in issuing a diplomatic note on a different shipment (app. br.
8-10, id. at ex. A (Nassar decl.) ¶¶ 6-9). It appears that the Appellant includes
both the first and last day of a purported delay period.
6
11. Electrical Materials 05/29/11 06/23/11 07/12/11 (19) 6
(26)
12. PEB, KSA (ES11070013) 07/17/11 07/18/11 (2) 09/16/11 (60) 52
13. PEB, KSA 09/02/11 10/04/11 11/15/11 (42) 65
(MISCCDMN000007411) (33)
TOTAL 249
(App. br. at 8-10; Nassar decl. (app. br. ex. A) (Nassar decl. I) ¶¶ 6-9) In support of
that claim, the Appellant provides a declaration from George Nassar—the Appellant’s
managing officer—who attaches bills of lading, CCR requests from the Appellant,
CCRs, and Diplomatic Notes (Nassar decl. I, ex. A). However, Mr. Nassar only
attaches the CCR requests for shipments 6 to 10; he does not provide or identify the
CCR requests for shipments 1 to 5, or 11 to 13 (id.). Nor do the bills of lading—or any
other document provided by Mr. Nassar—demonstrate that the Appellant requested the
CCRs on the dates indicated in column (b) for shipments 1 to 5, or 11 to 13 (id.).
Likewise, Mr. Nassar only attaches the CCRs for shipments 1, 2, 4, 6, and 8 to 12;
he does not provide or identify the CCRs for shipments 3, 5, 7, or 13 (id.). Further,
Mr. Nassar only attaches the Diplomatic Notes for shipments 1, 2, 4, and 9 to 12;
he does not provide or identify the Diplomatic Notes for shipments 3, 5 to 8, 8 or
13 (id.). Therefore, we find that the Appellant has only substantiated the dates in
Table 1, columns (b) to (d) that are not bold, and that it has not substantiated the dates
in Table 1, columns (b) to (d) that are bolded.
C. Procedural History
15. On July 22, 2011, the Appellant submitted a Request for an Equitable
Adjustment (REA), asserting that the government failed to escort Afghan National
Police (ANP) members off-base after a site-visit on June 24, 2011, and the ANP
proceeded to harass the Appellant’s owner in an attempt to extort money from him
until the Army arrived (app. supp. R4, tab 262). The contracting officer (CO) rejected
the REA (app. supp. R4, tab 263). On September 22, 2011, the Appellant filed a
purported claim regarding the incident (collectively with the June 22, 2011 REA,
September 22, 2011 Purported Claim) (app. supp. R4, tab 264). There was no CO
final decision (COFD) on the September 22, 2011 Purported Claim.
16. On March 16, 2012, the Appellant submitted a certified claim to the
government, indicating that there were delays to the 0085 Contract due to: (1) the
slow CCR procedure by the government and the GIRoA, including the GIRoA taking
from August 6, 2011 to September 26, 2011 and from July 15, 2011 to the filing of the
8
While Mr. Nassar provides a document that purports to be a Diplomatic Note for
shipment 8, that document—particularly its date—is illegible (Nassar decl. I,
ex. A).
7
claim to process tax exemption documents for shipments 12 and 13 respectively;
(2) security and political issues; and (3) natural disasters and weather, including floods
in Pakistan between mid-August and October 2011 (R4, tab 41). The March 16, 2012
Claim stated that the Appellant is seeking “178 days resulting from issues under
section 1 [the CCR procedure] & 2 [security or political issues] above” (id. at 14).
However, the March 16, 2012 Claim also included a table purporting to show the
number of days of delay due to the CCR procedure (R4, tab 50). The March 16, 2012
Claim stated that “[i]t is important to notice that the Contractor is not requesting an
extension of time for performance . . . , as this time has already been extended, but he
is in fact requesting the payment of the additional overhead costs paid during these
delays” (R4, tab 41 at 17). The March 16, 2012 Claim did not allege that the
government mandated site-access for the Army and the ANA, the Appellant had to
work around the Army and the ANA, the ANA damaged water lines, or the ANA took
possession of nine trailers (id.).
17. On September 12, 2012, the CO issued a COFD denying the March 16,
2012 Claim in its entirety (R4, tab 2).
18. On December 11, 2012, the Appellant filed a notice of appeal with the
Board, which we docketed as ASBCA No. 58451.
III. The Government’s Claim
19. The 0085 Contract, § 01015, ¶ 9.4.10 required that “‘[g]rounding and
bonding shall meet the requirements of NFPA 70 . . . . Insulated grounding conductor
(separate from the electrical system neutral conductor) shall be installed in all feeders
and branch circuit raceways.’” (R4, tab 10 at 137)
20. On November 15, 2010, the government conducted an inspection of the
Appellant’s electrical work on the project and prepared an electrical inspection report
(app. R4 supp. tab 244). The report reproduced a picture purporting to show a missing
ground conductor, but we are unable to determine whether that is accurate without
expert testimony (id. at 2). The report also stated that:
All feeders for the [Main Distribution Panel (MDP)] to the
Distribution Panels (DP) are 4-wire systems. This does not
allow for an equipment grounding conductor as required
by (NEC 250.32(B)(1)) “For a grounded system at the
separate building or structure, an equipment grounding
conductor as described in 250.118 shall be run with the
supply conductor and be connected to the building or
structure disconnecting means and to the grounding
electrode(s). The equipment grounding conductor shall be
8
used for grounding or bonding of equipment, structures, or
frames required to be grounded or bonded. The equipment
grounding conductor shall be sized in accordance with
250.122. Any installed grounded conductor shall not be
connected to the equipment grounding conductor or to the
grounding electrode(s).”
In addition there should be a grounding electrode system as
required by (NEC 250.32(A)) “Building(s) or structure(s)
supplied by feeder(s) or branch circuit(s) shall have a
grounding electrode or grounding electrode system
installed in accordance with Part III of Article 250. The
grounding electrode conductor(s) shall be connected in
accordance with 250.32(B) or (C). Where there is no
existing grounding electrode, the grounding electrode(s)
required in 250.50 shall be installed.”
(Id. at 2-3) (emphasis omitted)
21. However, there is no evidence in the record regarding whether the
Appellant installed a separate grounding for each building apart from the four-wire
cables.
22. According to the government, the Appellant ceased work sometime after
March 10, 2013, without completing the work (R4, tab 219 at 7). The government
never issued a termination for default or an acceptance of the work performed (R4,
tab 219 at 2).
23. On April 17, 2014, the CO sent the Appellant a demand for payment for
purported electrical work deficiencies (R4, tab 234 at 4-6).
24. On May 5, 2014, the Appellant submitted a response to the CO’s demand
for payment, requesting a COFD regarding the demand (R4, tab 235 at 1).
25. On August 7, 2014, the Appellant filed a notice of appeal with the Board on
the basis of a deemed denial, which we docketed as ASBCA No. 59465.
26. On November 19, 2014, the CO issued a COFD, asserting a government
claim for electrical work deficiencies (R4, tab 219 at 1).
27. On November 21, 2014, the Appellant filed a notice of appeal with the
Board, which we docketed as ASBCA No. 59701.
9
DECISION
As discussed in greater detail below, we deny the government’s motion to
dismiss on the grounds that the original named appellant was not the real party in
interest, and grant the Appellant’s cross-motion to amend the caption. Moreover, we
deny the Appellant’s claim because it is not entitled to an equitable adjustment for any
constructive suspension of the 0085 Contract due to unreasonable government delay in
issuing the CCRs and the Diplomatic Notes. Further, we do not possess jurisdiction
over the Appellant’s constructive suspension due to mandating that the Appellant
provide site-access for the Army and the ANA claim, which in any event, the
Appellant waived. Finally, we deny the government’s claim for a contract reduction
because it has failed to satisfy its burden of proof on that claim.
I. The Appellant is the Real Party in Interest
We deny the government’s motion to dismiss these appeals on the grounds that
the original named appellant was not the real party in interest, and grant the
Appellant’s cross-motion to amend the caption. Under the Contract Disputes Act
(CDA), we only possess jurisdiction to adjudicate appeals taken by a contractor.
Afghan Washington Constr. Co., ASBCA No. 60856, 18-1 BCA ¶ 37,009 at 180,242
(citing 41 U.S.C. § 7104). A contractor is a party to a government contract other than
the government. Id. (citing 41 U.S.C. § 7101(7)); see also Board Rule 15(a). When
the contractor is a separate legal entity from the named appellant, then the contractor—
and not the appellant—is the real party in interest, even if the contractor is a fictitious
business name for the appellant. Latella, Inc., ASBCA No. 55653, 07-1 BCA
¶ 33, 521. However, if the fictitious business that is named in the contract has no
legal existence apart from the real business, then the real business is the real party in
interest. Berlin d/b/a Spectro Sort and as Spectro Sort Mfg. Co., ASBCA No. 51919,
00-2 BCA ¶ 31,096. In considering whether two entities are separate legal entities, we
may consider how the government treated the entities during performance. See Green
Dream Group, ASBCA No. 57413, 12-2 BCA ¶ 35,145 at 172,519. Moreover, under
Board Rule 6(d), we may permit either party to amend its pleading upon
considerations fair to both parties.
Here, NGI Afghanistan for Contracting signed the 0085 Contract (finding 6).
However, NGI Afghanistan for Contracting is not a separate legal entity from Nassar
Group International N.G.I. S.A.L. (OffShore) R.C (finding 3). For example, there is
no official documentation creating or recognizing NGI Afghanistan for Contracting as
a separate legal entity, such as articles of incorporation (finding 3). Moreover, the
government treated Nassar Group International N.G.I. S.A.L. (OffShore) R.C. and
NGI Afghanistan for Contracting as the same entity during performance by making
payments to Nassar Group International N.G.I. Offshore S.A.L. (finding ¶ 4).
10
The government points to the facts that Nassar Group International N.G.I.
S.A.L. (OffShore) R.C. and NGI Afghanistan for Contracting have different CAGE
and DUNS Codes (gov’t reply at 9-10; gov’t post-hrg. br. at 14-17). However, it is not
unusual for a single legal entity to have multiple Codes, Tele-Consultants, Inc. v.
United States, 142 Fed. Cl. 686, 695-96 (2019), particularly for an entity such as the
Appellant, which is a foreign company that had no experience with CAGE and DUNS
Codes (finding 5). The government also points to the Appellant’s admission that NGI
Afghanistan for Contracting was a wholly-owned subsidiary of Nassar Group
International N.G.I. S.A.L. (OffShore) R.C. (gov’t reply at 11). However, whether
NGI Afghanistan for Contracting was a wholly-owned subsidiary is not dispositive—
what matters for purposes of determining who is the real party in interest is whether
that wholly-owned subsidiary had a separate legal existence. DEI Indus., Inc.,
ASBCA No. 18342, 74-1 BCA ¶ 10,539; see also Mega Enviro., Inc., ASBCA No.
51639, 99-1 BCA ¶ 30253. As discussed above, NGI Afghanistan for Contracting did
not have such a separate legal existence. Finally, the government argues that some
states require registration of fictitious names (gov’t post hrg. reply at 14-15).
However, it does not even allege—let alone establish—that Afghanistan or Lebanon
imposed such a requirement (id.).
Thus, the government’s motion to dismiss is denied. Moreover, because it most
accurately reflects the true nature of the Appellant and the government has not
identified any prejudice from an amendment to the caption, the fairest course of action
is to amend the caption to reflect that the Appellant is Nassar Group International
N.G.I. S.A.L. (OffShore) R.C., doing business as NGI Afghanistan for Contracting.
See Advanced Communications Sys., ASBCA No. 52592, 07-2 BCA ¶ 33,629at 166,563.
II. The Appellant is not Entitled to an Equitable Adjustment for a
Constructive Suspension Due to any CCR Procedure Delays
The Appellant’s claim that the government constructively suspended the 0085
Contract by unreasonably delaying the CCR procedure is barred by the sovereign acts
doctrine. In any event, the Appellant has failed to meet its burden of showing that the
government took an unreasonable amount of time to perform the CCR procedure, or
that any such delays delayed the 0085 Contract. 9
9
In its reply brief, the government argues for the first time that we do not possess
jurisdiction over the CCR procedure claim because that claim was separate from
the security or political issue claim, but did not state a separate sum certain
(gov’t reply at 19-20). The government is correct that, when a case involves
separate claims, the claims to the CO must state separate sums certain for each
claim. ECC Int’l Constr., LLC, ASBCA No. 59586, 2021 WL 231891(May 17, 2021) (citing K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 1000,
11
A. The CCR Procedure was a Sovereign Act
The CCR procedure—including the length of time that it took the government
to issue the CCRs and the Diplomatic Notes—was a sovereign act, and thus cannot
serve as the basis for a constructive acceleration claim. A sovereign act by the
government cannot serve as the basis for a constructive acceleration claim. Amino
Bros. Co. v. United States, 372 F.2d 485, 491 (Ct. Cl. 1967). 10 A sovereign act is one
that is “public and general” and not directed solely toward an appellant. Id.; Conner
Bros. Constr. Co., v. Geren, 550 F.3d 1368, 1371 (Fed. Cir. 2008). In determining
whether an act is public and general, we consider if the act: (1) served a general
purpose; (2) was specifically directed at nullifying contract rights or relieving the
government of its contractual obligations; (3) applied exclusively to the contractor, or
more broadly to other parties not in a contractual relationship with the government;
and (4) provided an economic advantage to the government. Conner Bros., 550 F.3d
at 1372-75 (recognizing that raising taxes on a contractor’s inputs, denying a
contractor access to a city during wartime, and embargoing a shipment of goods are
sovereign acts); M.E.S., Inc., ASBCA No. 56149 et al, 12-1 BCA ¶ 34,958 at 171,856,
aff’d 502 F. Appx. 934 (Fed. Cir. 2013) (holding that a change to base access
requirements that delays a contractor constructing a facility on that base is a sovereign
act); Garco Const. Inc., ASBCA No. 57796, 15-1 BCA ¶ 36,135 at 176,378-79, aff’d
856 F.3d 938 (2017) (same).
Here, the CCR procedure—including the length of time that it took the
government to issue the CCRs and the Diplomatic Notes—was a public and general
act, and not directed specifically at the Appellant. First, the CCR procedure served a
general purpose—namely to assure the GIRoA that the government was not abusing a
tax exemption that the GIRoA had granted to the government for goods imported for
the government’s use (finding 10). The procedure for obtaining a tax exemption is
part of the determination of taxation levels, which is a public and general act. Conner
1005-06 (Fed. Cir. 2015)). Moreover, the government is correct that the March 16,
2012 Claim stated that the Appellant is seeking “178 days resulting from issues
under section 1 [CCR procedure] & 2 [security or political issues] above”
(finding 16). However, the March 16, 2012 claim also included a table
purporting to show the number of days of delay due to the CCR procedure
(finding 16). From that table, the number of days and damages just for the
purported CCR procedure delays are readily calculable. ECC, 2021 WL 231891.
Thus, the government’s argument is meritless.
10
In denying the government’s summary judgment motion, we held that there was a
genuine issue of material fact as to whether the issuing of the Diplomatic Notes
was a sovereign act. Nassar Group Int’l, ASBCA No. 58451, 19-1 BCA
¶ 37, 405 at 181, 832 - 33. As discussed above, we now find that the issuing of
the Diplomatic Notes was a sovereign act.
12
Bros., 550 F.3d at 1372-73. Moreover, just as establishing a procedure to allow people
to enter a city during wartime or a military base is a public and general act, so too is
establishing a procedure to allow goods to enter Afghanistan tax-free. Id.; M.E.S.,
12- 1 BCA ¶ 34,958 at 171,856; Garco, 15-1 BCA ¶ 36,135 at 176,378-79.
Second, the Appellant has pointed to no evidence—and there is none in the
SOP adopting the CCR procedure—suggesting that the government adopted the CCR
procedure specifically to nullify a right under the 0085 Contract or relieve the
government of its contractual obligations (app. reply 30-32; finding 10). Nor has the
Appellant pointed to any evidence that the length of time that it took the government
to issue the CCRs and the Diplomatic Notes was unique to the Appellant, let alone that
any such uniqueness was specifically directed at nullifying the Appellant’s rights or
the government’s obligations under the 0085 Contract (app. reply 30-32). Indeed, the
Appellant does not even identify a contract right or obligation that the CCR procedure
allegedly nullified (id.). The 0085 Contract did not give the Appellant any right to—or
impose any obligations upon the government regarding—tax-free importation of
goods. On the contrary, the 0085 Contract expressly stated that the government
“neither controls nor is responsible for any such customs clearance procedures,
requirements, or changes thereto,” and the 0085 Contract stated that “[i]t is the
responsibility of the contractor to be knowledgeable of and to abide by any and all
applicable customs clearance procedures and requirements that may be necessary for
the transportation of supplies and equipment into Afghanistan” (finding 9).
Third, the CCR procedure applied to anyone importing goods into Afghanistan
tax-free for government use, and not merely to the Appellant (finding 10). The
Appellant argues that the CCR procedure was not public and general because it only
applied to contractors (app. reply at 31). That argument fails legally and factually.
Legally, we have recognized that the fact that an act only applies to contractors—as
opposed to a particular contractor—does not negate it being a sovereign act, so long as
the act’s purpose is public and general. M.E.S., 12-1 BCA ¶ 34,958 at 171,856;
Garco, 15-1 BCA ¶ 36,135 at 176,378-79. Factually, the CCR procedure did not only
apply to contractors; it applied to anyone seeking to import goods into Afghanistan
tax-free for government use—including the military, other agencies, and DOD
civilians (finding 10).
Finally, the Appellant has identified no economic advantage that the
government gained by purportedly delaying the issuance of the CCRs and the
Diplomatic Notes (app. reply 30-32). On the contrary, it was in the government’s
interest to complete the CCR procedure as quickly as possible so that the project could
be completed as quickly as possible. Thus, the issuance of the CCRs and the
Diplomatic Notes was a public and general act, so it was a sovereign act that cannot
support a constructive suspension claim.
13
B. The Appellant has not Shown That the Government Unreasonably Delayed
the CCR Procedure, or That That Delayed the 0085 Contract
In any event, the Appellant has failed to meet its burden, see IDA Contracting
Corp., ASBCA No. 36053, 88-3 BCA ¶ 21,167, of showing that the government
unreasonably delayed the CCR procedure, or that any such delay delayed the
0085 Contract.
1. The Appellant has not Shown the Government Unreasonably Delayed the
CCR Procedure
The Appellant has not shown that the government constructively suspended the
0085 Contract by unreasonably delaying the CCR procedure. Under FAR 52.242-14,
a contractor is entitled to an equitable adjustment when the government constructively
suspends work by delaying work for an unreasonable amount of time. CATH-dr/Balti
Joint Venture, ASBCA No. 54239, 05-2 BCA ¶ 33,046 at 163,793 (citing P.R. Burke
Corp. v. United States, 277 F.3d 1346, 1359 (Fed. Cir. 2002)); see also E.V. Lane
Corp., ASBCA No. 9920, 65-2 BCA ¶ 5,076, at 23,884-88. However, a contractor is
not entitled to an equitable adjustment for delays with other causes besides the
government’s conduct or inaction. Sauer Inc. v. Danzig, 224 F.3d 1340, 1348 (Fed.
Cir. 2000); E.V. Lane, 65-2 BCA ¶ 5,076, at 23,892-95.
Here, for most shipments, the Appellant has not even demonstrated the amount
of time it actually took the government to issue the CCR and the Diplomatic Note
because it did not present evidence of the dates of: (1) the CCR requests for shipments
1-5, and 11-13; (2) the CCRs for shipments 3, 5, 7, and 13; or (3) the Diplomatic
Notes for shipments 3, 5 - 8, and 13 (finding 14).
Even if the Appellant had shown how long it actually took the government to
issue the CCRs and the Diplomatic Notes, the Appellant would not have shown that
that amount of time was unreasonable because it has failed to establish what was a
reasonable time for the government to issue the CCRs and the Diplomatic Notes. The
Appellant asserts that 10 calendar days was a reasonable time for both the DOD to
issue a CCR and the DOS to issue a Diplomatic Note because 10 calendar days
purportedly exceeds the amount of time that the SOP said it could take for the MoFA
or Customs to process the tax exemption documents (app. br. at 8). However, that
analysis compares apples to oranges by deriving a conclusion about how long it
reasonably should take two United States agencies—i.e., the DOD and the DOS—to
process tax exemption documents based upon how long the SOP said it could take for
one GIRoA agency—i.e., the MoFA or Customs (id.)—to process tax exemption
14
documents. 11 Moreover, the Appellant has not established that the procedure for
MoFA and Customs approval is analogous to—or reasonably should take the same
amount of time as—the procedure for issuing CCRs and Diplomatic Notes (app. br.
at 8). 12 Further, the SOP merely indicates that it could take between 2 days and
10 days for the MoFA and should take between 5 days and 7 days for Customs to
process tax exemption documents, but cautions that that time could be much longer,
at least for Customs (finding 12). And indeed, the Appellant recognizes that it often
took the MoFA and Customs more than 10 days and 7 days respectively to process the
tax exemption documents (R4, tab 50). Therefore, the Appellant has failed to establish
the reasonable amount of time that it should have taken for the government to issue the
CCRs and the Diplomatic Notes, let alone that the length of time it actually took
exceeded that reasonable time.
2. The Appellant has not Shown That any Unreasonable Delay to the CCR
Procedure Delayed the 0085 Contract
Moreover, the Appellant has not shown that any delay to the CCR procedure
delayed the 0085 Contract. In order to recover for a claimed delay, the burden is on an
appellant to establish that the government delay delayed the ultimate project
completion, and that there was no concurrent delay. Law v. United States, 195 Ct.
Cl. 370, 384-86 (1971); Safety Training Sys., Inc., ASBCA No. 57095, 14-1
BCA 35,509 at 174,055. In construction cases, that usually is done through a critical
path method (CPM) of schedule analysis. Nassar Group Int’l, 19-1 BCA ¶ 37,405at 181,833; In re Galaxy Builders, Inc., ASBCA Nos. 50136, 50018, 00-2 BCA
¶ 31,040 at 153,282. And indeed, the 0085 Contract required the use of CPM to
prepare project schedules for use in evaluating time extensions (finding 7). 13 Moreover,
a contractor cannot recover for any concurrent delays, unless it proves that there is a
clear apportionment between the delays. William F. Klingensmith, Inc. v. United
States, 731 F.2d 805, 809 (Fed. Cir. 1984). Further, a contractor cannot rely upon
11
Further, the SOP does not specify whether it used calendar days or business days
(finding 12), but the Appellant uses calendar days.
12
On the contrary, the fact that an importer had to provide hard-copies of the Importer
Documents after the COR issued the CCR but before the DOS issued the
Diplomatic Note—while the importer submitted all the documentation to the
MoFA before the clock starts running on the MoFA and Customs—suggests
that it should have taken longer to obtain a Diplomatic Note than MoFA and
Customs approval (finding 11).
13
CPM sequences subprojects within an entire construction project based upon those
subprojects’ precedence and duration to determine the most efficient schedule
for the completion of a project within a prescribed time. See Wilner v. United
States, 23 Cl. Ct. 241, 244-45 (1991); Galaxy Builders, 00-2 BCA ¶ 31,040at 153,282.
15
generalized testimony. Peter Bauwens Bauunternehmung GmbH & Co. KS, ASBCA
No. 44679, 98-1 BCA ¶ 29,551 at 146,499.
Here, the Appellant concedes that it “is very difficult to determine” what
activities are on the critical path (app. br. at 18). Nevertheless, the Appellant relies upon
a declaration from Gaby Bou Gharios—an Appellant technical manager—asserting that
he performed an “Impacted As Planned” Time Impact Analysis (TIA) that made
unspecified adjustments to an unidentified schedule (Gharios decl. (app. br. ex. B) ¶ 19).
That declaration is too general to establish delay for several reasons. First, the Gharios
Declaration does not identify the schedule Mr. Gharios used (id.). While the 0085
Contract required CPM project schedules (finding 7), and the Appellant concedes that
“any sort of reliable Time Impact Analysis (TIA) is nearly impossible” absent an
approved schedule (app. reply 16), there is no evidence that Mr. Gharios used an
approved CPM project schedule (Gharios Decl. (app. br. ex. B) ¶ 19).
Second, the Gharios Declaration does not even specify what adjustments
Mr. Gharios made to the schedule, let alone provide any evidence of the purported
TIA. 14 The Appellant concedes that “to properly assess the impacts . . . a time impact
analysis TIA would inject the delays as fragnets against a baseline schedule” in order
to “introduce the logical links between the fragnet” and “assess the impacts to the
chain of activities from those delays” (app. reply at 15, 21); see also Hedgecock Elec.,
Inc., ASBCA No. 56307, 12-2 BCA ¶ 35,086 at 172,305. 15 Here, the Gharios
Declaration does not inject fragnets against the baseline project schedule to introduce
the logical links between the fragnet and assess the impacts to the chain of activities
from those delays (Gharios Decl. (app. br. ex. B) ¶ 19).
Third, the Gharios Declaration is insufficient to establish delay to the overall
project because it fails to consider the impact of other delays. The Appellant
concedes—as it must—that “a proper TIA would have assessed the project schedule
from the [notice to proceed] to completion, and considered all delays and their impacts
to the project activities” (app. reply at 17); States Roofing Corp., ASBCA No. 54,860,
10-1 BCA ¶ 34,356 at 169,662. Moreover, the Appellant admits in its brief and claim
14
To the extent the Gharios Declaration is referring to the GANT chart attached to
Mr. Nassar’s declaration as his TIA, that is not a TIA because it does not
provide a baseline schedule, add fragnets, show the impact of purported
government delay on the project’s logic, or take account of other delays.
Rather, it merely shows the length of each purported government delay.
(App. br. ex. A at 40)
15
A fragnet is a sequence of new activities and/or activity revisions, logical
relationships, and resource changes added to an existing schedule to
demonstrate the influence of a new activity on the schedule. Hedgecock,
712-2 BCA ¶ 35,086 at 172,305.
16
that there were numerous other delays impacting the project during the purported CCR
procedure delays, such as the delays due to: (1) security and political issues, including
the Death of Osama bin Laden in April 2011, the assassination of a former GIRoA
president in September 2011, and an attack on the United States Embassy in
September 2011; (2) natural disasters and weather, including flooding in Pakistan
between August 2011 and October 2011; and (3) the GIRoA’s delay in processing tax
exemption documents (finding 16; app. reply at 25). However, the Gharios
Declaration admits that “none of NGI’s analyses take into account other actual delays
that are due to no fault of NGI” (Gharios decl. (app. br. ex. B) ¶ 16). That failure to
consider other delays renders the Gharios Declaration insufficient to establish delay.
States Roofing, 10-1 BCA ¶ 34,356 at 169,662.
The Appellant argues that it is entitled to an extension of time, even if the
purported government delay was concurrent with excusable delay (i.e., delay for which
the Appellant is not responsible) (app. reply at 28-30). However, the Appellant is not
seeking an extension of time; but compensable delay (finding 16). A contractor “has
the burden of proving that the claimed compensable delay was solely due to
government-responsible causes [and] was not concurrent with contractor-responsible
or excusable delay. . . .” Carothers Const., Inc., ASBCA No. 48042, 00-1 BCA
¶ 30,637 at 151,268. That is because, if government delay was concurrent with
excusable delay, the contractor would have been delayed anyway, so the government
delay did not cause compensable delay to the overall project. Merritt-Chapman &
Scott Corp. v. United States, 528 F.2d 1392, 1397 (Ct. Cl. 1976). Therefore, the fact
that the purported government delay was concurrent with excusable delay means that
the Appellant is not entitled to compensation for the purported government delay
absent apportionment, which the Appellant does not even attempt to establish.
The Appellant also argues that issuance of the CCRs and the Diplomatic Notes
must have been on the critical path because the project was 99% complete as of July 11,
2012, but the pre-engineered buildings (PEBs) and other materials in shipments 12 and
13 still had not been delivered as of that date (app. br. at 18-19, 22-23). As an initial
matter, the Appellant’s argument focuses upon shipments 12 and 13, without addressing
delays to shipments 1 through 11 (Gharios decl. (app. br. ex. B) ¶ 11). Even as to
shipments 12 and 13, the purported delay in issuing the CCRs and the Diplomatic Notes
was complete by November 15, 2011 (finding 14). Without any TIA analysis, the
Appellant fails to establish how those purported delays still were impacting the
schedule eight months later on July 11, 2012 (app. br. at 18-19, 22-23; Gharios decl.
(app. br. ex. B) ¶¶ 4, 11-29). Moreover, as discussed above, that argument ignores
concurrent delay.
In sum, the Appellant has failed to meet its burden of showing that any CCR
procedure delay caused a delay to the 0085 Contract.
17
III. The Appellant is not Entitled to an Equitable Adjustment for any Delay
Due to the Government Mandating Site-Access for the Army and the
ANA
We do not possess jurisdiction over the Appellant’s claim that the government
delayed the project by mandating site-access for the Army and the ANA, and, in any
event, the Appellant waived that claim.
A. We do not Possess Jurisdiction Over the Site-Access Claim
We do not possess jurisdiction over the Appellant’s claim that the government
delayed the project by mandating site-access for the Army and the ANA. We do not
possess jurisdiction to entertain a claim unless a contractor presented that claim to the
CO. Nassar, 19-1 BCA ¶ 37,405 at 181,831. “While an appellant may introduce on
appeal additional facts that do not alter the nature of the original claim, its appeal must
be based upon a common or related set of operative facts to those presented to the CO.”
Id. (citing Scott Timber Co. v. United States, 333 F.3d 1358, 1365 (Fed. Cir. 2003);
Trepte Constr. Co.,, ASBCA No. 38555, 90-1 BCA ¶ 22,595 at 113,385-86). A claim
is new if it “presents materially different factual or legal theories of relief.” Nassar,
19- 1 ¶ BCA 37,405 at 181,831 (citing Lee’s Ford Dock, Inc. v. Secretary of the Army,
865 F.3d 1361, 1369 (Fed. Cir. 2017)). “Materially different claims will necessitate a
focus on a different or unrelated set of operative facts.” Id. (quoting Lee’s Ford, 865
F.3d at 1369).
Here, the site-access claim that the Appellant raises in these appeals is a new
claim because it is materially different than the claim it presented to the CO. The
Appellant’s Rule 11 brief argues in the introduction that:
The Government also mandated site-access for US Army
personnel and the Afghan National Army (ANA). By
doing so, NGI had to work around the activities of those
third parties, repeatedly restructuring its planned work
activities and labor/personnel necessary for project
execution. Additionally, the access by those third parties
increased NGI’s costs on the site as the ANA damaged
water lines and other items NGI already installed on the
project, requiring NGI to redo activities. The ANA also
wrongfully took possession of 9 trailers of NGI’s supplies
and materials and refused to return them to NGI. NGI
regularly and routinely appraised the Government of the
delays to the project, including for those issues raised
above. Additionally, NGI regularly and routinely provided
18
the Government notice of other delays, outside the control
of NGI and without the fault or negligence of NGI.
(App. br. at 1-2) That argument necessitates a focus on a different and unrelated set of
operative facts than that raised in the March 16, 2012 Claim because the March 16,
2012 Claim did not assert that the government mandated site-access for the Army and
the ANA, the Appellant had to work around the activities of the Army and the ANA,
the ANA damaged water lines, or the ANA took possession of nine trailers (finding 16).
Indeed, the Appellant does not even dispute that these appeals’ site-access claim
necessitates a focus on a different and unrelated set of operative facts than those
asserted in the March 16, 2012 claim (app. reply at 10-12).
Instead, the Appellant argues that these appeals’ site-access claim is based upon
a common or related set of operative facts to those asserted in the September 22, 2011
Purported Claim (id.). Assuming without deciding that the September 22, 2011
Purported Claim constituted a valid claim, that argument would lack merit. The
September 22, 2011 Purported Claim made allegations about an entirely different third
party—the ANP—than the third-parties address in these appeals—namely the Army
and the ANA. (Compare finding 15 with app. br. at 1). Moreover, the September 22,
2011 Purported Claim make allegations about entirely different incidents—namely the
purported ANP attempt to extort money from Mr. Nassar—than the incident alleged in
these appeals—namely the Appellant’s purported working around the Army and the
ANA, the ANA’s purported damaging of water lines, and the ANA’s purported taking
possession of nine trailers (app. br. at 1-2). Because the Appellant’s arguments in
these appeals necessitate a focus on a different and unrelated set of operative facts than
those presented in a claim to the CO, they are a new claim over which we do not
possess jurisdiction. Nassar, 19-1 BCA ¶ 37,405 at 181,831.
B. The Appellant Waived the Site-Access Claim
In any event, the Appellant waived its claim that the government delayed the
project by mandating site-access for the Army and the ANA. The Board will not make
a party’s case for it. Lebolo-Watts Contractors 01 JV, LLC, ASBCA No. 59740, 2020
WL 9396047 (Nov. 17, 2020); McCotter Motors, Inc., ASBCA Nos. 30498, 30997,
86-2 BCA ¶ 18,784 at 94,647; see also Dunkel v. United States, 927 F.2d 955, 956 (7th
Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in briefs”). Nor is the
Board required to scour the record for an appellant. Parsons Evergreene, LLC v. Sec’y
of Air Force, 968 F.3d 1359, 1368 (Fed. Cir. 2020); ESCgov, Inc., ASBCA No. 58852,
17-1 BCA ¶ 36,772 at 179,189; Highland al Hujaz Co., ASBCA No. 58243, 16-1 BCA
¶ 36,336 at 177,169-70; Gary Aircraft Corp., ASBCA No. 21731, 91-3 BCA ¶ 24,122at 120,718 (“[w]e are not charged with sorting through a haystack of documents to
locate relevant facts.”). Therefore, “[i]t is well established that arguments that are not
19
appropriately developed in a party’s briefing may be deemed waived.” United States
v. Great Am. Ins. Co. of N.Y., 738 F.3d 1320, 1328 (Fed. Cir. 2013).
Here, the Appellant cites no evidence in support of its claim that the
government delayed the project by mandating site-access for the Army and the ANA
(app. br. at 1-2). Indeed, apart from the conclusory paragraph in its introduction
quoted above, the Appellant’s brief does not even present argument regarding that
claim (id.). Therefore, the Appellant waived its argument that the government delayed
the project by mandating site-access for the Army and the ANA.
Instead of correcting those deficiencies in its reply brief, the Appellant instead
shifts back to its claim regarding the ANP extorting money from Mr. Nassar, stating
that “[a]ppellant has shown all of the requisite factors within [the September 22, 2011
Purported Claim] to entitle it to an extension of time . . . .” (App. reply at 12). As an
initial matter, the Appellant waived any arguments about the ANP extorting money
from Mr. Nassar by failing to raise them in its opening brief. SmithKline Beecham
Corp. v. Apotex Corp., 439 F.3d 1312, 1319 (Fed. Cir. 2006); (app. br. at 1-2). In any
event, those arguments suffer from the same defects as the Appellant’s argument
regarding mandating site-access for the Army and the ANA—namely that the
Appellant fails to provide any citations to the record, and leaves it to the Board to
make the argument for it (app. reply at 12). Therefore, the Appellant also waived its
argument that mandating site-access for the ANP delayed the project.
IV. The Government has Failed to Establish its Claim
The government has failed to establish its claim that the Appellant purportedly
failed to install insulated grounding conductors separate from the electrical system
neutral conductor in all feeder and branch circuit raceways (gov’t br. at 35-37). While
there is a contemporaneous report complaining about the Appellant using a four wire
system (finding 20), the Appellant argues that, in addition to that four wire system, it
installed a separate ground for each building, which complied with the requirement for
grounding conductors separate from the electrical system neutral conductor (app. reply
at 32-35). 16 The government responds that the Appellant does not cite any documents
in the record to support that argument (gov’t reply at 33). That is true, but ignores the
fact that the government also fails to present any evidence regarding whether there was
a separate ground for each building—apart from the four-wire cables—that complied
with the contract requirements (id.; finding 21). Since it is the government’s burden to
16
While the Appellant did not raise the above argument in its opening brief, the
Appellant did not waive that argument because it made that argument in
response to a government claim. Moreover, the government suffered no
prejudice because it had the opportunity to respond to the argument in its reply
brief.
20
prove its claim, Santa Barbara Research Ctr., ASBCA No. 27831, 88-3 BCA ¶ 21,098at 106,516, the complete lack of evidence as to whether there was a separate ground
(finding 21) compels us to deny the government’s claim.
CONCLUSION
For the foregoing reasons, we deny the government’s motion to dismiss, and
grant the Appellant’s cross-motion to amend the caption. We deny both the
government’s claim and the Appellant’s claim.
Dated: September 29, 2022
JAMES R. SWEET
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD 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 Nos. 58451, 59465, 59701,
Appeal of Nassar Group International, rendered in conformance with the Board’s
Charter.
Dated: September 30, 2022
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
21