Zafer Taahhut Insaat Ve Ticaret A.S. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
ZAFER TAAHHUT INSAAT VE TICARET A.S.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2015-5083
______________________
Appeal from the United States Court of Federal
Claims in No. 1:13-cv-00888-TCW, Judge Thomas C.
Wheeler.
______________________
Decided: August 17, 2016
______________________
SAM GDANSKI, Gdanski & Gdanski LLP, Teaneck, NJ,
argued for plaintiff-appellant.
AGATHA KOPROWSKI, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., DEBORAH A. BYNUM; JAMES D. STEPHENS,
MICHAEL A. REAS, Middle East District, United States
Army Corps of Engineers, Winchester, VA.
______________________
2 ZAFER TAAHHUT INSAAT v. US
Before LOURIE, DYK, and STOLL, Circuit Judges.
LOURIE, Circuit Judge.
Zafer Taahhut Insaat ve Ticaret A.S. (“Zafer”) appeals
from the U.S. Court of Federal Claims’s (“Claims Court”)
(1) grant of summary judgment that the U.S. Army Corps
of Engineers (“USACE”) did not constructively change the
terms of its contract with Zafer; and (2) denial of Zafer’s
motion to supplement the record with several newspaper
articles. Zafer Taahhut Insaat ve Ticaret A.S. v. United
States, 120 Fed. Cl. 604, 612 (2015). For the reasons that
follow, we affirm.
BACKGROUND
Zafer is an experienced construction contractor locat-
ed in Ankara, Turkey. In May 2011, USACE entered into
a firm-fixed-price contract with Zafer, No. W912BU-11-C-
0017, to construct the MILCON Consolidated Community
Support Facility at the Bagram Air Force Field in Afghan-
istan. Under the terms of the contract, Zafer was respon-
sible for delivering construction materials to the project’s
site, and assumed the risk “for all costs and resulting loss
or profit.” See 48 C.F.R. § 16.202-1. Further, the contract
incorporated several standard Federal Acquisition Regu-
lation (“FAR”) provisions, such as a Changes clause, FAR
52.243-4, a Default clause, FAR 52.249-10, and an F.O.B.
Destination clause, FAR 47.303-6.
The Default clause is of particular relevance here. It
provides, in pertinent part:
(b) The Contractor’s right to proceed shall not be
terminated nor the Contractor charged with dam-
ages under this clause, if—
(1) The delay in completing the work arises from
unforeseeable causes beyond the control and
without the fault or negligence of the Contractor. .
. . ; and
ZAFER TAAHHUT INSAAT v. US 3
(2) The Contractor, within 10 days from the be-
ginning of any delay . . . , notifies the Contracting
Officer in writing of the causes of delay. The Con-
tracting Officer shall ascertain the facts and the
extent of the delay. If, in the judgment of the
Contracting Officer, the findings of fact warrant
such action, the time for completing the work
shall be extended. . . .
48 C.F.R. § 52.249-10(b) (2007).
In June 2011, Zafer received a notice to proceed with
the contract, with a contract completion date in November
2012. USACE later recognized that it could not make the
project site available until June 2012, and it accordingly
issued a bilateral modification that increased the contract
price and set a new completion date in October 2013.
In November 2011, the government of Pakistan closed
its border from the seaport city of Karachi along the land
routes into Afghanistan (“the Karachi/Afghan route”) in
response to a combat incident with the U.S. and the North
Atlantic Treaty Organization (“U.S./NATO incident”) that
allegedly killed twenty-four Pakistani citizens. The route
remained closed for 219 days, until July 2012.
By letter dated March 20, 2012, Zafer notified USACE
that the closure of the Karachi/Afghan route would great-
ly impact its delivery of materials, as required under the
contract. See Joint App. (“J.A.”) 29–30. Specifically, Zafer
noted that the “unexpected closure” of the Karachi/Afghan
route grossly affected its logistics because a “considerable
amount of project materials/equipment are stuck at the
Pakistan border.” J.A. 29. As Zafer indicated, “[n]ineteen
(19) of [the twenty-four] shipments are already at Karachi
and have not been allowed to move for a long time.” J.A.
29. Zafer then requested direction on how to proceed, e.g.,
if it should ship via another route with increased shipping
time and associated costs. J.A. 30.
4 ZAFER TAAHHUT INSAAT v. US
USACE replied on June 27, 2012, acknowledging the
difficulties arising from the closure of the Karachi/Afghan
route. J.A. 31. It informed Zafer, however, that because
the closure was “purely the act of Pakistan governmental
authorities,” and the U.S. government was “not responsi-
ble for these sovereign acts of a foreign nature,” Zafer was
nevertheless obliged to deliver the materials and supplies
by “any means necessary,” without further compensation.
J.A. 31. USACE then stated that its contract with Zafer
allows for a non-compensable time extension in the event
of an unforeseeable delay. See J.A. 31 (referencing the
Default clause, FAR 52.249-10). And, if Zafer “believe[s]
that [it is] entitled to a non-compensable extension of time
to perform . . . [, it] may submit a request to the [contract-
ing officer].” J.A. 31. USACE specified that any request
“must fully explain why the delay was unforeseeable” and
“include documentation of the date when the materials or
equipment were shipped and when the delay began at the
Pakistan border.” J.A. 31.
Soon thereafter, on July 11, 2012, Zafer responded to
USACE’s letter. Zafer acknowledged that, by July 11, the
Karachi/Afghan route had reopened, but stated: “We want
to put [USACE] on notice of Zafer’s entitlement to addi-
tional time, but also several additional entitlements for
increased costs occasioned by the border closing.” J.A. 32.
Zafer then outlined several categories of costs, including
constructive acceleration costs, port detention and demur-
rage, and extended overhead. J.A. 32. It finally conclud-
ed its letter by challenging USACE’s position that USACE
was not responsible for any additional costs incurred. See
J.A. 33–34.
USACE did not immediately respond to Zafer’s July
11, 2012 letter. So, on October 24, 2012, Zafer sent an-
other letter to USACE with an update, indicating that the
materials and equipment held at the Karachi port “have
now begun the process of being released back into normal
distribution,” and that the Pakistan government demands
ZAFER TAAHHUT INSAAT v. US 5
“extra payment before [it] will release these shipments.”
J.A. 36. Zafer asked for payment to cover the additional
costs, and for direction on how to proceed. J.A. 36.
That same day, October 24, USACE replied, repeating
its earlier, June 27, 2012 letter. USACE stated that Zafer
remains responsible for delivering all materials “by what-
ever means necessary,” and that USACE “will not assume
responsibility for any increased costs of delivering con-
struction material and equipment.” J.A. 37. USACE last
noted that, under the terms of the contract, Zafer could
request a non-compensable time extension, and that any
request should “explain why the delay was unforeseeable”
and “include documentation of the date when the materi-
als or equipment were shipped and when the delay be-
gan.” J.A. 37.
Zafer replied on October 31, 2012, challenging wheth-
er USACE should bear responsibility for increased costs.
In particular, Zafer argued that the border closure was
not solely the result of “acts of a sovereign not under the
control of the US,” but rather a result “of US/NATO firing
accident.” J.A. 38. It reiterated that it “wishe[d] to put
USACE on notice of Zafer’s entitlement to additional time
and also additional entitlement for increased costs.” See
J.A. 39 (“Zafer will, under protest, ship its material from
Karachi to Bagram expeditiously but reiterates its posi-
tion more fully outlined in its July 11, 2012, Serial Letter
23 that it is entitled to additional time and will look to the
Government to recoup the increased costs occasioned by
the border closing.”).
On February 22, 2013, Zafer submitted a request for
an equitable adjustment to the contracting officer. In its
request, Zafer “asserted that the Government is liable for
[the] increased costs of re-procurement, shipping, D&D
(detention and demurrage) and warehousing” occasioned
by the Karachi/Afghan route closure. J.A. 41. Zafer again
reiterated its belief that the U.S. government was respon-
6 ZAFER TAAHHUT INSAAT v. US
sible for the route closure, and thus for any increased
costs that Zafer consequently incurred. J.A. 41. On May
20, 2013, after three months with no response from
USACE, Zafer resubmitted its request for an equitable
adjustment, expressly “request[ing] a Contracting Of-
ficer’s decision.” See J.A. 46. Zafer included a certifica-
tion with its request and thus “consider[ed] the proposal a
Claim.” J.A. 46. On July 25, 2013, the contracting officer
denied the claim, finding that no evidence supported a
constructive change claim, and stating that “Zafer made a
business decision to continue to procure materials and
ship through Karachi,” despite its knowledge of the clo-
sure. J.A. 17–21; see also Zafer, 120 Fed. Cl. at 608.
Zafer consequently filed a complaint in the Claims
Court on November 8, 2013, alleging, inter alia, that
USACE constructively changed the terms of the contract.
Specifically, Zafer set forth two grounds for constructive
change: (1) USACE constructively accelerated the con-
tract when it ordered Zafer to perform despite the delays
occasioned by the Karachi/Afghan route closure; and (2)
the delay is the fault of the U.S. government because it
caused the route closure (the U.S./NATO incident) and it
ineffectively negotiated with Pakistan to reopen the route
quickly. See Zafer, 120 Fed. Cl. at 610. USACE moved to
dismiss for failure to state a claim, or alternatively, for
summary judgment. See id. at 608. Zafer filed a response
and moved to supplement the record. Id.
The Claims Court granted USACE’s motion for sum-
mary judgment, concluding that Zafer could not establish
that USACE constructively changed the terms of the
contract. 1 Id. at 610. First, the court held that Zafer did
1 The Claims Court noted that USACE’s motion for
summary judgment more properly disposed of the issue,
for both parties “submitted and relied upon documentary
ZAFER TAAHHUT INSAAT v. US 7
not have a valid constructive acceleration claim because:
(1) Zafer’s claimed costs only arose from shipping and
storage, not performance; (2) the contract did not specify
the use of the Karachi/Afghan route, and thus USACE’s
demand to complete the delivery by “whatever means
necessary” did not require a method of shipping beyond
that required in the contract; and (3) USACE did not deny
any request for additional time. Id. The court then held
that Zafer did not establish that the U.S. government was
responsible for the delays because: (1) another sovereign,
not the U.S. government, closed the Karachi/Afghan
route; and (2) the U.S. government was not acting in its
“contractual capacity” when it negotiated with Pakistan
to reopen the route. See id. at 610–11. The court lastly
denied Zafer’s motion to supplement the record because
the proffered newspaper articles and social media sources
constituted inadmissible hearsay and were barred by the
parol evidence rule. See id. at 611–12.
Zafer timely appealed; we have jurisdiction under 28
U.S.C. § 1295(a)(3).
DISCUSSION
I
Zafer first challenges the grant of summary judgment
to USACE of no constructive change. See Oral Argument
at 2:25–2:34 (constructive acceleration claim); Appellant’s
Br. 7–24 (constructive change, generally). For the reasons
that follow, we affirm the grant of summary judgment.
We review de novo the Claims Court’s grant of sum-
mary judgment, drawing all factual inferences in favor of
the nonmovant. See Anderson v. United States, 344 F.3d
1343, 1349 (Fed. Cir. 2003). Summary judgment is proper
evidence and pleadings beyond Zafer’s complaint.” Zafer,
120 Fed. Cl. at 608.
8 ZAFER TAAHHUT INSAAT v. US
when “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” RCFC 56(a).
“A firm-fixed price contract provides for a price that is
not subject to any adjustment on the basis of the contrac-
tor’s cost experience in performing,” 48 C.F.R. § 16.202-1,
and generally sets forth a fixed scope of work. Neverthe-
less, a contracting officer may adjust “the work within the
general scope of the contract” under a Changes clause, id.§ 52.243-4(a), and the contractor may receive an equitable
adjustment for changes contemplated by that clause, id.
§ 52.243-4(c)–(e); see, e.g., id. § 52.243-4(a)(4) (“Directing
acceleration in the performance”). The contracting officer
typically effectuates such a change by submitting a formal
change order to the contractor. Id. § 52.243-4(b).
Even absent a formal order under the Changes clause,
the contracting officer may still constructively change the
contract, “either due to an informal order from, or through
the fault of, the government.” NavCom Def. Elecs., Inc. v.
England, 53 F. App’x 897, 900 (Fed. Cir. 2002); see Metric
Constr. Co., Inc. v. United States, 81 Fed. Cl. 804, 817
n.19 (2008) (“The theory of constructive change developed
by judicial evolution. In cases where the contract work
was actually changed but the procedures of a changes
clause in the contract were not followed, early appeals
boards found that a change had been ‘constructively’
ordered.”) (citation omitted). Zafer invokes both grounds
for a constructive change, and we address each in turn.
First, an informal order to accelerate contract perfor-
mance (constructive acceleration) can effect a constructive
change to the contract requiring an equitable adjustment.
Accord Fraser Constr. Co. v. United States, 384 F.3d 1354,
1360–61 (Fed. Cir. 2004). Constructive acceleration often
occurs when the government demands compliance with an
original contract deadline, despite excusable delay by the
contractor. See id. at 1361. We have set forth five ele-
ZAFER TAAHHUT INSAAT v. US 9
ments that a contractor must prove to successfully allege
a constructive acceleration claim:
(1) that the contractor encountered a delay that is
excusable under the contract; (2) that the contrac-
tor made a timely and sufficient request for an ex-
tension of the contract schedule; (3) that the
government denied the contractor’s request for an
extension or failed to act on it within a reasonable
time; (4) that the government insisted on comple-
tion of the contract within a period shorter than
the period to which the contractor would be enti-
tled by taking into account the period of excusable
delay, after which the contractor notified the gov-
ernment that it regarded the alleged order to ac-
celerate as a constructive change in the contract;
and (5) that the contractor was required to expend
extra resources to compensate for the lost time
and remain on schedule.
Id. (citations omitted).
Zafer first argues that USACE’s repeated “by whatev-
er means necessary” statement required Zafer to perform
work beyond that required in the contract, which implicit-
ly required all shipping to occur exclusively via the Kara-
chi/Afghan route. Appellant’s Br. 13–20 (invoking Appeal
of Dougherty Overseas, Inc., 68-2 B.C.A. P 7165, ENGBCA
2625, 1968 WL 445 (May 2, 1968), and Appeal of Alley-
Cassetty Coal Co., 89-3 B.C.A. P 21964, ASBCA No.
33315, 1989 WL 74890 (May 10, 1989), for support). Zafer
next challenges the Claims Court’s determination that the
claimed costs arose exclusively from storage and shipping,
and that USACE did not deny a request for a time exten-
sion. 2 E.g., id. at 15–16, 18.
2 The Claims Court indicated that “Zafer received a
reasonable time extension due to the border closure,” and
10 ZAFER TAAHHUT INSAAT v. US
USACE responds first that Zafer failed to present any
evidence showing that USACE demanded additional work
because the contract did not specify a particular transpor-
tation route, and USACE, at most, insisted on compliance
with the express terms of the contract. See Appellee’s Br.
13–18. USACE then contends that Zafer likewise did not
present any evidence showing that it spent additional
resources to stay on track, id. at 19–20, did not submit a
request for an extension of time, id. at 20–22, and did not
establish that USACE denied its request for an extension
of time, id. at 22–24.
As we set forth in Fraser, a contractor must prove all
five elements to allege a successful constructive accelera-
tion claim. 384 F.3d at 1361. Thus, an entry of summary
judgment is appropriate against a contractor “who fails to
make a showing sufficient to establish the existence of an
essential element to [its] case, and on which [it] will bear
the burden of proof at trial.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). That is so, for “a complete failure of
proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immateri-
al.” Id. at 323. Because Zafer failed to designate specific
facts sufficient to establish that USACE denied a request
for a time extension, we affirm the Claims Court’s conclu-
sion that Zafer failed to establish a constructive accelera-
tion claim.
thus there was no improper denial by USACE. Zafer, 120
Fed. Cl. at 610. Zafer argues that the extension granted
in bilateral modification P00004 was not because of the
route closure. See Appellant’s Br. 13. USACE concedes
as much. See Appellee’s Br. 22. Although we agree that
the Claims Court erred in this respect, we still affirm its
ultimate conclusion that USACE did not deny a request
for a time extension, for the reasons that follow.
ZAFER TAAHHUT INSAAT v. US 11
As described above, Zafer and USACE had significant
correspondence concerning the route closure. Zafer first
alerted USACE to the associated complications in March
2012. USACE acknowledged the difficulties and informed
Zafer that, pursuant to the contract, Zafer could request a
non-compensable time extension. Most notably, USACE
requested Zafer “fully explain why the delay was unfore-
seeable” and provide all “documentation of the date when
the materials or equipment were shipped and when the
delay began at the Pakistan border.” J.A. 31. Those
demands are entirely consistent with the contracting
officer’s duty to make specific factual determinations
regarding the delay, such as whether a time extension is
proper and, if so, how much time should be awarded. 48
C.F.R. § 52.249-10(b)(1)–(2). Indeed, though not required,
contractors requesting a time extension for an excusable
delay regularly ask for a specific time frame to ameliorate
the harms of delay. See, e.g., Azure v. United States, 129
F.3d 136, 1997 WL 665763, at *4 (Fed. Cir. Oct. 24, 1997)
(table) (“In a letter dated July 15, 1993, Azure requested a
time extension of seventeen calendar days.”); Appeal of
Trepte Constr. Co., Inc., 90-1 B.C.A. P 22595, ASBCA No.
38555, 1990 WL 101600 (Jan. 4, 1990) (asking for a 150-
day time extension); Stroh Corp. v. Gen. Servs. Admin.,
96-1 B.C.A. P 28265, GSBCA No. 11029, 1996 WL 154494(Mar. 29, 1996) (asking for a 130-day time extension).
In response, Zafer set forth the reasons for the delay,
proclaimed its “entitlement to additional time,” and asked
for compensation for all “increased costs occasioned by the
border closing.” J.A. 32–34. Notably, however, Zafer did
not ask for a specific amount of time. J.A. 32–34; see also
Oral Argument at 3:16–3:28 (When asked if Zafer asked
for a specific time extension, its counsel responded “no.”).
A few months later, USACE responded and reiterated its
earlier request for “documentation of the date when the
materials or equipment were shipped and when the delay
began” so that it could assess whether a time extension
12 ZAFER TAAHHUT INSAAT v. US
might be warranted. J.A. 37. Zafer replied, asking again
for additional monies, yet failing again to describe a time
frame. See J.A. 39. At most, Zafer “put USACE on notice
of [its] entitlement to additional time,” generally. J.A. 39.
Soon thereafter, Zafer submitted a request for an equita-
ble adjustment and initiated the proper procedures under
the Contract Disputes Act. See J.A. 41, 46.
On the facts as they have been alleged, and after con-
struing them all in the light most favorable to Zafer, we
must conclude that there is no genuine factual dispute
indicating that USACE improperly denied a request for a
time extension. To the extent that Zafer’s repeated “no-
tice of entitlement to additional time” amounts to a “time-
ly and sufficient request for an extension” under Fraser,
384 F.3d at 1361, no facts indicate that USACE denied
the request. The submitted correspondence simply re-
flects an ongoing conversation between the contractor and
the U.S. government, an ongoing conversation aimed at
resolving the obvious issues presented by the Kara-
chi/Afghan route closure. None of the letters reveal an
express or even an implied statement by USACE that a
request for a time extension was denied. Compare Appeal
of Cont’l Heller Corp., 84-2 B.C.A. P 17275, GSBCA No.
7140, 1984 WL 13283, at ¶ 22 (Mar. 23, 1984) (“Until the
requirements noted above are met . . . , your request for a
contract time extension is denied.”). Rather, the contract-
ing officer repeatedly asked for more information so that
it could make a proper determination, a request that
Zafer repeatedly failed to comply with. We decline to
accept that remarks made by a contracting officer in an
ongoing conversation such as this amount to a denial of
an extension of time for purposes of a constructive accel-
eration claim. Zafer failed to allege any facts beyond the
above-mentioned conversation to establish that USACE
improperly denied its request. Accordingly, Zafer’s con-
structive acceleration claim fails.
ZAFER TAAHHUT INSAAT v. US 13
Next, a constructive change may result through the
fault of the government that warrants an equitable ad-
justment to the contract. NavCom, 53 F. App’x at 900.
Zafer argues that the U.S. government is at fault for the
delay because the U.S./NATO incident led to the route
closure, and the U.S. government prolonged the delay
when it acted in its contractual capacity during negotia-
tions with Pakistan to reopen the route. See, e.g., Appel-
lant’s Br. 8 (“The US and Pakistan engaged in long
arduous and at times contentious negotiations for repara-
tions and other payments to Pakistan, and most likely
individuals, businesses and other affected parties.”). In
support of its argument, Zafer relies only on newspaper
articles and social media sources detailing the closure and
negotiation. See, e.g., id. at 11 (referring to a New York
Times article and e-mails from a shipping agent discuss-
ing the hold-up of cargo at the port of Karachi); id. at 29
(referring to a New York Times article suggesting that the
U.S. “withdrew a team because negotiations were stale-
mated after trying to obtain the opening of the border”).
We find neither of Zafer’s arguments to be persuasive.
First, the U.S. government was not responsible for the
route closure. As both parties have acknowledged, the
Pakistan government alone closed the route, Zafer, 120
Fed. Cl. at 610–11, and the U.S. government is not re-
sponsible for the sovereign acts of a foreign nation. Zafer
has failed to proffer any evidence suggesting otherwise.
Second, the U.S. government is typically not responsi-
ble for any “obstruction to the performance of the particu-
lar contract resulting from its public and general acts as a
sovereign.” See Conner Bros. Constr. Co., Inc. v. Geren,
550 F.3d 1368, 1371 (Fed. Cir. 2008) (citation and quota-
tion marks omitted); Jones v. United States, 1 Ct. Cl. 383,
385 (1865) (“[T]he United States as a contractor cannot be
held liable directly or indirectly for the public acts of the
United States as a sovereign.”). An exception, however, to
this “sovereign acts defense” is that the government may
14 ZAFER TAAHHUT INSAAT v. US
be responsible for an act “specifically directed at nullify-
ing contract rights.” Id. at 1374–75; see United States v.
Winstar Corp., 518 U.S. 839, 896 (1996) (“The sovereign
acts doctrine thus balances the Government’s need for
freedom to legislate with its obligation to honor its con-
tracts by asking whether the sovereign act is properly
attributable to the Government as a contractor.”); Conner,
550 F.3d at 1374 (“[C]ourts addressing the sovereign acts
doctrine have looked to the extent to which the govern-
mental action was directed to relieving the government of
its contractual obligations.”); City Line Joint Venture v.
United States, 503 F.3d 1319, 1323 (Fed. Cir. 2007) (find-
ing that legislation abrogating the option of low-income
apartment owners to prepay their mortgages was not a
sovereign act because it was “aimed at the contract rights
themselves in order to nullify them”).
In this case, Zafer has not alleged any facts indicating
that the U.S. government’s negotiations with Pakistan to
reopen the route were “specifically directed at nullifying
contract rights.” For example, it does not allege that the
governmental action at issue “applie[d] exclusively to the
contractor” rather than “more broadly to include other
parties not in a contractual relationship with the govern-
ment.” See, e.g., Conner, 550 F.3d at 1375 (citing Yankee
Atomic Elec. Co. v. United States, 112 F.3d 1569, 1576
(Fed. Cir. 1997)); see also Horowitz v. United States, 267
U.S. 458, 461 (1925) (“Whatever acts the government may
do, be they legislative or executive, so long as they be
public and general, cannot be deemed specifically to alter,
modify, obstruct or violate the particular contracts into
which it enters with private persons.”). Instead, Zafer
made broad and unsubstantiated allegations that the U.S.
“contractually interfered, hindered, delayed, [sic] resolu-
tion of the border clos[ure] [issue].” See Zafer, 120 Fed.
Cl. at 611 (alterations in original) (citation and quotation
marks omitted). That is insufficient to survive a motion
for summary judgment.
ZAFER TAAHHUT INSAAT v. US 15
For the reasons set forth above, Zafer failed to desig-
nate specific facts to establish a constructive change claim
based on either a constructive acceleration theory or on a
government fault theory. We therefore affirm the Claims
Court’s grant of summary judgment to USACE.
II
Zafer next challenges the Claims Court’s denial of its
motion to supplement the record with several newspaper
articles and social media sources. See Appellant’s Br. 23,
25–33. Zafer contends that the articles and sources show
that its contract necessarily contemplated only the Kara-
chi/Afghan route, see, e.g., id. at 26–28, and that the U.S.
government acted in its contractual capacity when it was
negotiating with Pakistan to reopen the route, see, e.g., id.
at 8, 10–12, 29.
We review evidentiary determinations by the Claims
Court for an abuse of discretion. See Axiom Res. Mgmt.,
Inc. v. United States, 564 F.3d 1374, 1378 (Fed. Cir. 2009)
(quoting Murakami v. United States, 398 F.3d 1342, 1346
(Fed. Cir. 2005)). An abuse of discretion is found when (1)
the court’s decision is “clearly unreasonable, arbitrary, or
fanciful,” (2) the court’s decision is “based on an erroneous
conclusion of the law,” (3) the court’s findings are clearly
erroneous, or (4) the record contains no evidence “upon
which the [court] rationally could have based its decision.”
See Air Land Forwarders, Inc. v. United States, 172 F.3d
1338, 1341 (Fed. Cir. 1999). We find no abuse of discre-
tion in the Claims Court’s decision here to deny Zafer’s
motion to supplement the record.
The Claims Court denied Zafer’s motion to introduce
several newspaper articles and social media sources into
the record for two reasons: hearsay and the parol evidence
rule. Zafer, 120 Fed. Cl. at 612. Zafer does not meaning-
fully challenge either determination now on appeal. First,
Zafer invokes Federal Rule of Evidence 902 (evidence that
is self-authenticating), alleging that the Claims Court did
16 ZAFER TAAHHUT INSAAT v. US
not consider the self-authenticating nature of the articles
and sources when it dismissed them as hearsay. See, e.g.,
Appellant’s Br. 27. But that invocation entirely misses
the point of the hearsay determination. Compare Fed. R.
Evid. 801(c), 802, with Fed. R. Evid. 902. Authentication
and hearsay are two separate requirements, and Zafer’s
conflation of the two does not provide a meaningful basis
for finding that the Claims Court abused its discretion.
Zafer’s challenge to the Claims Court’s application of
the parol evidence rule similarly fails. The parol evidence
rule “renders inadmissible evidence introduced to modify,
supplement, or interpret the terms” of a fully integrated,
unambiguous agreement. See Barron Bancshares, Inc. v.
United States, 366 F.3d 1360, 1373 (Fed. Cir. 2004). Zafer
does not contend that its contract was ambiguous or not
integrated. Instead, Zafer simply assumes the conclusion
and contends that the articles and sources highlight what
the parties “clearly” contemplated. E.g., Appellant’s Br.
32. Because Zafer fails to provide a meaningful basis for
finding that the Claims Court abused its discretion, we
affirm the court’s denial of Zafer’s motion to supplement
the record.
CONCLUSION
We have considered Zafer’s remaining arguments, but
find them unpersuasive. For the reasons set forth above,
we affirm the Claims Court’s grant of summary judgment
and its denial of Zafer’s motion to supplement the record.
AFFIRMED