Judges: Paul
Filed: May 18, 2016
Latest Update: Mar. 02, 2020
Summary: 4.1.6 Chain Link Fence;4.2 Task 2. In, addition, the CO, Mr. Penwell, testified that he accompanied Chief Locher and, Lt Gorsline to the job site on 29 September 2013 and reviewed each part of the project, to determine what were discrepancies and which part of the work was properly, performed.
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of -- )
)
Lean Construction and Engineering Co. ) ASBCA No. 59016
)
Under Contract No. W56SGK-l 3-C-7073 )
APPEARANCE FOR THE APPELLANT: Mr. Abdul Ghafar Rassin
Executive Director
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
L TC Brian J. Chapuran, JA
MAJ Michael G. Pond, JA
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE PAUL
This is a timely appeal of a contracting officer's (CO's) decision partially
terminating appellant, Lean Construction and Engineering Co.'s (Lean's) construction
contract for default. The Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, is
applicable. A hearing was held at the Board's offices. Only entitlement is before us~
We deny the appeal.
FINDINGS OF FACT
1. On 15 April 2013, the Regional Contracting Center-Capital, Afghanistan,
awarded Contract No. W56SGK-13-C-7073 to Lean for specified construction work to
augment force protection measures at an Afghan National Army Logistics depot in the
province of Kabul and to upgrade the base's western entry control point (ECP) to
facilitate two-way traffic (R4, tab 1 at 1-2, tab 2 at 225).
2. Pursuant to CENTCOM Clause 952.232-0004, PAYMENT IN LOCAL
CURRENCY (AFGHANISTAN) (AUG 2011), the contract was awarded on the basis of the
local Afghan currency in a fixed-price amount of AFN 6,918,859.84. Based upon the
exchange rate prevailing on the date the contract was awarded, this constituted
approximately $142,297.20. (R4, tab 1 at 3-4, 7-8)
3. The contract incorporated by reference a host of Federal Acquisition
Regulation (FAR) clauses. Those pertinent to this appeal include FAR 52.236-5(c),
MATERIAL AND wORKMANSHIP (APR 1984 ), which provided, in pertinent part: "All
work under this contract shall be performed in a skillful and workmanlike manner"
(R4, tab 1 at 5). Also relevant is FAR 52.249-10, DEFAULT (FIXED-PRICE
CONSTRUCTION) (APR 1984 ), which stated:
(a) If the Contractor refuses or fails to prosecute the
work or any separable part, with the diligence that will
insure its completion within the time specified in this
contract including any extensions, or fails to complete the
work within this time, the Government may, by written
notice to the Contractor, terminate the right to proceed
with the work (or the separable part of the work) that has
been delayed. In this event, the Government may take
over the work and complete it by contract or otherwise,
and may take possession of and use any materials,
appliances, and plant on the work site necessary for
completing the work. The Contractor and its sureties shall
be liable for any damage to the Government resulting from
the Contractor's refusal or failure to complete the work
within the specified time, whether or not the Contractor's
right to proceed with the work is terminated. This liability
includes any increased costs incurred by the Government
in completing the work.
(R4, tab 1at24) FAR 52.236-12, CLEANING UP (APR 1984), is also pertinent. It
provided:
The Contractor shall at all times keep the work area,
including storage areas, free from accumulations of waste
materials. Before completing the work, the Contractor
shall remove from the work and premises any rubbish,
tools, scaffolding, equipment, and materials that are not the
property of the Government. Upon completing the work,
the Contractor shall leave the work area in a clean, neat,
and orderly condition satisfactory to the Contracting
Officer.
(Id.)
4. The contract also contained 13 attachments which described in minute detail
the various technical requirements. They were listed as follows:
2
SOLICITATION ATTACHMENTS
ATTACHMENT TABLE OF CONTENTS
DOCUMENT TYPE DESCRIPTION PAGES DATE
Attachment 1 TFP Standard Specifications 83 18 Jun 2009
Attachment 2 ANSF Construction Standards 10 5 Sep 2011
Attachment 3 Concrete Tower Design 22 NIA
Attachment 4 Two Connex Guard Tower 15 NIA
Attachment 5 Site Layout 1 NIA
Attachment 6 Solar Panel Specs 10 NIA
Attachment 7 Proposed ECP Drawing 1 NIA
Attachment 8 Steel Panel Gates 10 NIA
Attachment 9 Drop Gate Standard Design 6 NIA
Attachment 10 Guard posts 1 NIA
Attachment 11 Hesco Wall 7 NIA
Attachment 12 Chain Link Fence Design 6 NIA
Attachment 13 Statement of Work 7 NIA
(R4, tab 1 at 32)
5. Attachment 1 contained the Coalition Joint Task Force Phoenix Engineers
Standard Specifications (R4, tab 1 at 3 3-115). Part 1, "General Requirements," of the
specification included the following, pertinent provisions:
4. Material: All materials shall be new and free of defects
unless otherwise approved by the Contracting Officer
Representative (COR). The Contractor shall remove
defective materials from the site at no additional cost to
the U.S. or Afghan Government.
6. Quality of Work: All work shall be conducted in a
professional manner, in accordance with accepted
methods of construction, as detailed in the attached
specifications. U.S. and Afghan Government personnel
on site shall make regular inspection of work as it
progresses. When work is completed at each stage of
the project, Contractor shall submit work for inspection
and be signed off by U.S. or Afghan Government
personnel on site.
3
9. Clean up: The Contractor shall clean up the work site
at the end of every work day and upon project
completion, including the removal of all debris and
refuse from the site, to the satisfaction of the
Contracting Officer Representative (COR).
(R4, tab l at 34-35)
6. Part 2 of the Standard Specifications was entitled "Site Construction."
Subsection 2.1 of section 2.0, "GENERAL EXCAVATION," provided:
Contractor shall perform excavation of every type of
material encountered within the limits of the project to the
lines, grades, and elevations indicated and specified.
Contractor shall transport satisfactory excavated materials
and place in fill or embankment within the limits of the
work. Contractor shall excavate unsatisfactory materials
encountered within the limits of the work below grade and
replace with satisfactory materials as directed. Contractor
shall include such excavated material and the satisfactory
material ordered as replacement in excavation. Contractor
shall dispose surplus satisfactory excavated material not
required for fill or embankment in areas approved for
surplus material storage or designated waste areas.
Contractor shall dispose unsatisfactory excavated material
in designated waste or spoil areas. During construction,
Contractor shall perform excavation and fill in a manner
and sequence that will provide proper drainage at all times.
(R4, tab 1 at 42-43)
7. Part 3 of the Standard Specifications was entitled "Concrete." Section 1,
also styled "Concrete," contained the following, relevant subsections:
1.1. Cement: 3000 PSI (20.0 MPa) Type I Portland
Cement Concrete or equivalent will be utilized in
the completion of this project. The Contractor will
be required to prepare and place all concrete to
include the specific requirements described below.
The contractor shall submit the name and brand of
concrete for the COR to approve.
4
1.2. Materials: Concrete will consist of the following
ingredients only:
1.2.1. Portland Cement (Type 1) or equivalent
1.2.2. Clean Sand (O. l 5mm - 4.75mm)
1.2.3. Clean Course Aggregates (10mm-25mm
crushed stone)
1.2.4. Clean Water
1.2.5. TF Phoenix Engineer Approved Chemical
Admixtures
1.3. Concrete specifications: Basic Structural concrete
shall at least meet these specifications:
1.3 .1. Designed strength = 21 MPa = 3000 psi
1.3.2. Minimum Cement content= 340kg/cubic
meter
1.3.3. Maximum Water/Cement ratio= 0.68 by
volume
1.3 .4. Maximum coarse aggregate size = 25mm
1.3.5. Slump Range= 101.6mm - 152.4mm
1.4. Concrete Mix: All mix aggregates will be free of
dirt, dust and debris contamination. Any mix water
used will be free of organic materials and dirt, and
will not have an excessive mineral content.
Concrete will be mixed mechanically in an
appropriate enclosure; to ensure adequate mixing,
proper hydration and temperature control. HAND
MIXING OF CONCRETE IS SPECIFICALLY
PROHIBITED. An example of this is mixing
concrete with a shovel on the ground or in a
wheelbarrow.
1. 7. Concrete Protection and Curing: The Contractor
shall protect the concrete in such a manner as to
maintain a constant temperature between 50°F
(10 °C) and 90°F (32.2°C) for 7 days. Acceptable
methods of concrete protection include: insulating
layers, moisture barriers, curing compound, or
environmental enclosures. Continuous moist curing
is the most desirable objective. Moist curing for
7 days will typically ensure the 28-day strength will
5
eventually be reached. The proposed method of
protection shall be indicated in the bid proposal
package.
2. All concrete shall be kept moist to facilitate the
concrete curing phase for a minimum of 72 hours
after placement however 7 days is preferred.
2.1. Ground Preparation: All concrete slabs and
foundations will be placed on a properly
consolidated base course, at least 200mm (8 inches)
thickness. Base course material shall consist of
lOmm - 50mm (3/8 inch- 2 inches) crushed stone.
Compaction may be accomplished by roller,
tamping plate, or any suitable method approved by
COR. Sub-grade and base course will be drained
and free from any voids or organic materials to a
depth of 46 cm (18 inches). The excavated area
where the concrete will be placed should be clean,
damp, and free from debris, frost, ice, and standing
or running water.
2.1.1. Vapor Barrier: A minimum layer of0.4mm
plastic shall be placed between the concrete
foundation and the existing soil to act as a vapor
barrier. All joints shall be overlapped 30cm.
2.2. Steel Reinforcement: If specified, concrete
will be provided with sufficient steel to provide
tensile support and prevent cracking. All steel
reinforcing bar junctions and lap joints will be
welded or tied with steel wire ties. See Metals,
Section 5 for additional information.
(R4, tab 1at51-53)
8. The Standard Specifications also included a section called "HESCO Wall"
(R4, tab 1 at 192-98). Chief Petty Officer Kevin Locher, the government's COR for
much of the contract period, defined a HES CO wall in these terms:
6
A HESCO is, it's a barrier, and what it is, it's a wire mesh
cage, and they've got different sizes in height and in
thickness, and inside that cage there's a fabric, and what
you do is, you set those up and you fill them full of sand or
dirt, and it becomes a security barrier against explosions,
against gunfire, builds a big dirt wall for you, is what it
basically does, and then you can line them up, you can
stack them on top of each other to build the size walls that
you need.
(Tr. 2/24-25) The following provisions of this section are pertinent to this appeal:
11. Concertina Wire: The contractor shall install two
rows of concertina wire along the top of the wall.
After a sufficient curing of the concrete cap, two rows
of concertina wire shall be installed. The bottom row
shall be located along the outer step of the lower
HESCO container and the top row shall be located
along the center of the top HESCO container. Each
roll of concertina wire shall be stretched no more than
13 m (42 ft). [C]oncertina wire strands shall be
secured onto the steel picket top notch using steel
wire. Consecutive coils of concertina wire shall be
connected at the steel picket as follows:
11.1. Place the first coil over the picket.
11.2. Place both bottom and top portion of the
second coil over picket.
11.3. Using steel wire, ensure that the top of both
coils are secured to the picket.
11.4. The contractor shall provide the wire to
secure the concertina wire to the pickets.
(R4, tab 1 at 192-94)
9. Attachment #6 to the contract was styled: "SOLAR PANEL SPECS
PACKAGED PHOTOVOLTAIC SYSTEM." Subsection 1.1, "SUMMARY," of
Part 1, "GENERAL" stated:
A. This specification section covers Photovoltaic (PV)
System requirements including, but not limited to
equipment, hardware, software, documentation, labor,
materials, and supervision required for the installation
7
and maintenance of a selfl-]contained, packaged,
photovoltaic system.
B. This system includes factory, pre-assembled,
photovoltaic cells, charge controllers, power inverters,
batteries, shunts, over-current protection devices,
interconnecting cable, meter, and shipping-operating
container to form a complete and operational
photovoltaic system capable of providing renewable
power to the facility. The system will also include
battery storage for a 24 hour autonomy period. [The]
system inverters will be capable of interconnect with
the emergency power diesel generator to provide power
should the autonomy period exceed 24 hours.
C. Section includes, but is not limited to the following:
1. Infrastructure, wiring, connection, and testing;
2. Solar panels and panel arrays;
3. Service disconnect switches;
4. DC combiners;
5. Inverters;
6. Monitoring equipment and Control software;
7. Identifications and signs;
8. Shipping-operating containers;
9. Provide all labor and materials, and make all
necessary connections.
(R4, tab 1 at 164)
10. Pertinent, detailed specifications relating to the solar panels included:
3.4 MODULARPV ARRAY INSTALLATION
A. The Contractor shall design, construct and install
the modular PV arrays on reinforced concrete
footers. Footers shall extend deeper than the soil
frost depth for the location installed, but not less
than 800mm to bearing. Extend footers a
minimum of 200 mm above finished grade.
B. Provide and install galvanized steel j-bolts and
clamps to fasten containers to footers. J-bolts and
8
clamps shall be designed to withstand seismic
events for the location.
C. Provide a minimum of 1200 mm between array
rows.
D. Route all wiring from PV array to building in
conduit underground and stub up to inside of
storage-operating container as appropriate.
E. Provide and install copper clad steel ground rods,
minimum of 3000mm x 19 mm at each comer of
the array and bond with copper ground conductor
per NFPA 70, Article 250.
(R4, tab 1 at 169-73)
11. Attachment 12 to the contract was entitled "Chain Link Fence." The
specifications provided:
1. Chain Link Fence
1.1. Site Preparation: The Contractor shall prepare the
site in accordance with Task Force Specification
PART 2 Site Preparation.
1.2. Posts and Braces:
1.2.1. The post spacing and configuration shall be
arranged per Chain Link Fence Site Plan
and Details. When barbed wire and
concertina wire are required on the fence,
each post shall have equally spaced
outriggers.
1.2.2. Braces shall be used in each bay adjacent to
the comer posts. Braces shall be used on
each swing gate door. Braces and posts
shall be of 7.5 cm (3 in) diameter pipes.
The base metal shall be weldable steel of
commercial quality, or better. The steel
shall be galvanized or have an equivalent
protective coating.
9
1.2.3. The post shall be set in concrete foundation
with diameter of 30.5 cm (12 in) and 61 cm
(24 in) deep. The minimum embedment
length for the posts shall be 50 cm (18 in).
The concrete shall be placed according to
the Task Force Specification PART 3
Concrete.
1.3. Fence Fabric:
1.3 .1. The fence fabric shall be 4 mm
(9-gage/0.148 in) diameter that is woven
into approximately 5 cm (2 in) mesh such
that there shall be at least 7 meshes in a
vertical dimension of 58.5 cm (23 in) along
the diagonal of the openings. The fence
fabric shall have knuckled finish on the top
and bottom edges.
1.3.2. The fence fabric shall be stretched and
securely fastened to comer posts with
stretcher bars having dimensions of not less
than 0.6 cm x 1.9 cm (1/4 in x 3/4 in) and
stretcher bar bands having dimensions of not
less than 0.3 cm x 1.9 cm ( 1/8 in x 3/4 in)
spaced at 30.5 cm (12 in) intervals. The
fence fabric shall also be fastened to
intermediate posts with tie wires or post clips
and to tension wires with tie wires or hog
rings. The fasteners shall be spaced at
approximately 35.5 cm (14 in) on
intermediate posts and at approximately
50 cm (18 in) on tension wires.
1.3.3. Tie wires and hog rings shall be at least 4 mm
(9-gage/0.148 in) diameter steel and post clips
shall be at least 5 mm (6-gage/0.192 in)
diameter steel. Wire ties shall be given at least
one complete tum. Hog rings shall be closed
with ends overlapping. The tension wires shall
be wrapped around end posts. The distance
from the top of the fabric to the top tension wire
10
and from the bottom of the fabric to the bottom
of the tension wire shall be 75 mm (3 in)
maximum. The tension wires shall be at least
0.5 cm (6-gage/0.192 in) diameter coil spring
steel. Tension wires shall be stretched tight.
The bottom tension wire shall be installed on a
straight grade between posts by excavating the
high points of ground and in no case will filling
of depressions be permitted.
1.3 .4. All tension wire, tie wires, hog rings and
post clips shall be of good commercial
quality and shall be galvanized or be coated
with an equivalent protective coating
according to Task Force Specification
PART 5 Metals.
1.4. Swing Gate:
1.4.1. If a swing gate is required, it shall be
fabricated from 5 cm (2 in) diameter
weldable steel and be galvanized or have an
equivalent protective coating. Each gate
section shall be hung by at least 2 steel
hinges not less than 13 cm (5 in) in width.
The hinges shall securely clamp to the gate
post and permit the gate to be swung back
against the fence. The bottom hinge shall
have a socket to take the ball end of the
gate frame. Fence fabric shall be welded to
the frame. The swing gate shall have a
commercial grade steel lock clasp.
1.5. Shade Fabric/Screen[:]
1.5.1. If shade fabric is required, it shall be
fabricated from a sun-resistant PVC
material. The screen material shall have
the same dimensions as the fence. It shall
be hung with metal ties and shall be pulled
taut prior to tying.
(R4, tab 1 at 199-201)
11
12. Attachment 13 was the contractual "Statement of Work" (SOW). Section 1
was entitled "GENERAL CONTRACT REQUIREMENTS," several of which are
pertinent to this appeal. Included among them are:
1.1. Purpose: The purpose of this project is to increase the
force protection measures of the Depot perimeter and
upgrade the western ECP to facilitate two-way traffic.
1.2. Contract Completion Date: The contract shall be
completed no later than 90 days after the determined
Notice to proceed from the Contracting Officer (CO).
1.3. Material: All materials shall be new and free of
defects unless otherwise approved by the COR/CO.
The Contractor shall remove defective material from
the site at no additional cost to the Government.
1.8. Clean up: The Contractor shall clean up the work site
at the end of every work day and upon completion of
the project, including removal of all debris and refuse
from the site, to the satisfaction of the COR.
1.9. Supervision and Quality Control: The Contractor
shall provide project supervision throughout the
course of construction. The Contractor shall establish
and maintain a quality control system throughout the
project. The Contractor shall demonstrate skilled
workmanship in constructing a quality product.
1.11. Quality Assurance: The Contractor shall perform
Quality Control (QC) on all Contractor-installed
materials and equipment. The Contractor QC shall
report any discrepancies between what was ordered
and what is delivered, implemented, and performed to
the Government or Government QA Contractor
within I day of discovery for resolution. No material
12
proposed may be substituted with an alternate product
unless approved by the government prior to delivery.
The Contractor shall correct all deficiencies reported
by the Government QA or Government QA
Contractor who will inspect the Contractor's work.
The Contractor shall issue a QA certification
statement to the Government validating that the
installed system is free from installation deficiencies
and defects for the support service period selected.
This statement shall also certify that the Government
documented contractor defects have been corrected
and shall be submitted prior to submission of the final
Systems Acceptance.
(R4, tab 1 at 205-07)
13. Section 2 of the SOW, entitled "SUMMARY OF WORK," broke the
project down into three basic tasks. They are defined as follows:
2.2.1. Task 1. The Contractor shall build l(one) ECP that
includes 1 concrete guard tower and 2 guard posts.
2.2.2. Task 2. The Contractor shall build and install (2)
two, double storey Connex Guard towers[.]
2.2.3. Task 3. The Contractor shall clean up any existing
or construction-related debris from the construction
site at the end of each day and at the completion of
this project in accordance to Attachment
#I-Standard Specifications, and Afghan National
Law.
(R4, tab 1 at 207-08)
14. The SOW also included a detailed description of the three tasks:
4.1. Task 1. The Contractor shall level, compact and slope
to drain the entire ECP area. The contractor will lay,
level and compact 150mm depth of 20/40mm sized
crushed gravel over the entire Depot 0 ECP footprint
except for the area with the required concrete slab for
the steel panel gates following the attachment #7
Proposed ECP-Depot 0. In addition the contractor
13
shall lay, level and compact 150 mm of 20/40mm
sized crushed gravel in the transitional road
connecting the ECP to the existing main access road
as shown on the drawings.
4.1.1 Concrete Guard Tower; shall be built following the
design in Attachment #3 Concrete guard tower and
Attachment #6 Solar panel specs. The tower shall
include l(one) HVAC and l(one) solar electricity
self power system.
4.1.2 3 x Besco Walls; shall be built in order to create a
2 (two) way traffic entrance and exit following the
design of Attachment #7 Proposed ECP-Depot 0 and
shall [be] constructed in accordance with Attachment
#11 Hesco walls "para 8". The Concertina shall be
installed on the exterior side of the HESCO walls for
the two outside Hesco walls. The contractor shall
deviate from the standard design on the middle
Hesco barrier and not install the concertina wire on
the lOB Hesco; it shall only be installed on the 8B.
Contractor will stop 2m short of the panel gates to
create a gap for personnel access.
4.1.3 2 x Drop Gates; shall be built at the entrance and
exit as specified in accordance with Attachment #9
Drop gate standard design and Attachment #7
Proposed ECP Depot 0. The drop arm gates will be
installed at the end of the HESCO barriers.
4.1.4 2 x Guard Posts; shall be installed beside drop gates
and constructed in accordance with Attachment #7
Proposed ECP-Depot 0 and Attachment #10 Guard
Post. The contractor will deviate from Attachment
# 10 Guard Post by not including any electrical
components in these two guard posts. The contractor
will provide and install one small wooden stove with
metal exhaust tubing in each guard post.
4.1.5 2 x Steel Panel Gates; shall be installed at the end
of the ECP in accordance with Attachment #7
Proposed ECP-Depot 0 and the Attachment #8 Steel
Panel Gates. The Contractor will be responsible for
14
the adjustment of the steel panel gate's dimensions to
ensure complete coverage of the road opening and
complete. The contractor will submit design to COR
for approval prior to installation.
4.1.6 Chain Link Fence; shall connect the existing fence
to each side of the ECP with a 45 degree angle as
shown in Attachment #7 Proposed ECP Depot 0.
The fence construction shall follow the Attachment
#12 Chain Link Fence Design. No sniper screen is
required.
4.2 Task 2. The contractor shall build 2, double storey
Connex guard towers along the fence perimeter of
Depot 0 holding area. The guard towers will include
HVAC and solar electricity self power system
following design #6 Solar panel specs. The guard
tower will follow all the specs of the design in
attachment #4 Two CONNEX Guard Tower. The
location of the guard towers are shown in attachment
#5 Site Layout.
4.3 Task 3. The Contractor shall clean up any existing or
construction related debris from the construction site at
the end of each day and at the completion of this
project in accordance to Attachment # 1 -Standard
Specifications, and Afghan National Law. All
damages of main access road shall be repaired at
the completion of the project.
(R4, tab 1 at 208-09)
15. With respect to the contract's period of performance, the SOW stated:
Tasks contained in this contract shall be completed no later
than 90 days after date of contract award. Extensions will
be requested no less than seven (7) days from expiration of
the contract period. The Government reserves the right to
terminate the contract within ten (10) days['] notice if
Contractor fails to fulfill any of its obligations contained
herein.
(R4, tab 1 at 208)
15
16. Regarding "Professional Conduct," the SOW provided:
2. 5 .1. In addition to performing the duties and
responsibilities described above, the contractor will
ensure that the contractor's staff performs their
duties honestly in a competent and lawful manner
and within the time required by the Employer. The
tasks are to be accomplished in a way which will
not cause the Employer to violate any laws or to
breach the Employer's Contract or cause the
Employer any embarrassment.
2.5.2. Implement, follow and obey any and all rules,
regulations and systems of work devised by the
Contractor which are hereby considered an integral
part of this contract.
2.5.3. Act in a non-sectarian manner at all times with
demonstrated respect for all ethnic, religious, and
other groups that constitute the Afghan people and
the members of the Coalition.
2.5.4. The Contractor shall comply with any mentioned
Department of Defense and component specific
publications and instructions, or the most current
version of referenced material and its specified
replacement, in performance of this SOW, unless
otherwise noted.
(R4, tab 1 at 208)
17. The CO, Mr. Mark A. Penwell, issued Lean a notice to proceed, effective
on 21 April 2013. He stated, in part: "You must complete all requirements of this
project within 90 calendar days of the effective date of this Notice to Proceed or
30 July 2013." (R4, tab 6) 1
1
Since 90 days after the effective date of the notice to proceed is 20 July 2013 and not
30 July 2013, Modification No. POOOOl was issued on 25 July 2013 to
incorporate the actual completion date reflected in the notice to proceed (R4,
tab 11).
16
18. Because Lean's workers were unable temporarily to gain access to the
Afghan National Army compound where the project was to be performed, the
completion date was initially extended to 13 August 2013 by Modification No. P00002,
and then to 5 September 2013 through Modification No. P00003 (R4, tabs 12, 17;
tr. 21152-53).
19. On 3 June 2013, the CO issued a "Letter of Concern" to Lean. He stated,
in part:
1. This letter of concern is being written to express serious
concerns over the ECP and Guard Tower project. The US
Government visited the site on two different occasions
(26 May 2013 and 2 June 2013). The workmanship and
materials that you have provided are inferior to what is
described in the Statement of Work (SOW), Task Force
Phoenix Standards, ANSF Standards and the contract. The
COR, Mr. Steve Glass did not accept the work you [sic]
that you had completed to date and sent an email on
28 May 2013 to correct the problems. When the US
Government visited the site again on 2 June 2013, your
company had torn down the previous CMU work and
began to reinstall new CMU work. There were several
problems noted on the new work that were not to standard.
The concrete mortar mix that was used to adhere the
CMU' s together was lacking to standards mentioned
earlier or missing all together. You also did not have an
English speaking supervisor on s~te as outlined in your
contract. It is the Contractor's responsibly to complete the
work as outlined in the SOW, Task Force Phoenix
Standards, ANSF Standards and the contract.
2. It is up to the Contractor to complete this project on
schedule and obtain quality materials for the project. As
the contracting officer, I have considered your duty to seek
assistance and guidance regarding obtaining the materials
and the overall workmanship; however, your failure to
proceed or make progress and perform under the contract
is placing the construction of this project in jeopardy.
Performance of this contract must be completed in
accordance with the SOW.
3. Failure to correct this matter in a timely manner will
result in more serious actions. This will have a significant
17
impact on your overall performance rating on this contract
and will jeopardize your ability to receive future contracts
with the U.S. Government based on your past performance
rating.
4. You are required to submit a response within three (3)
calendar days of receipt of this letter by official letterhead
memorandum format only. An email written response will
not be accepted. Your response shall include a corrective
action plan and a detailed schedule of completion for the
construction of the ECP and Guard Tower Project. If you
find the information in this letter to be incorrect or if you
have evidence to support the delinquency, you are required
to address that in your response.
(R4, tab 9 at 2) Lean's response, if any, is not contained in the evidentiary record;
however, the CO testified that Lean "ultimately corrected" the concerns set forth in the
letter (tr. 21154; finding 7).
20. On 18 August 2013, Chief Kevin Locher, the COR, conducted ajob site
inspection and observed several deficiencies on Lean's part. Most significantly,
Chief Locher noted that Lean had not installed the solar panels for the "two double conex
guard towers." He also stated that the fence Lean has installed was of "poor quality." At
the hearing, Chief Locher testified that these deficiencies were communicated to Lean's
on-site representative. (R4, tab 13; tr. 2113; findings 4, 9-11, 14)
21. On 19 August 2013, Chief Locher forwarded an email to Lean in which he
noted other deficiencies which had surfaced during his inspection:
The other issues
1) The Chigo [HVAC unit][is] not working in the concrete
tower at the ECP.
2) The hand rail on the exterior ladder has faulty welds
and needs re-weld[ing].
3) In one of the conex towers (and possibly the other
tower also) conduit from the panel had a water tight elbow
going to the exterior light over the door. To get wire to the
outlet for the Chigo, a hole was drilled in the elbow and
ran loose to the outlet. This needs [sic] fixed.
4) Both electrical panels needs [sic] the breakers labeled
in both Dari and English. Once these and the issues
18
LT Gorlsine outlined are completed we can hopefully get
out and do a final inspection.
(R4, tab 14 at 1) The issues outlined by Lt Gorsline, the project engineer, related to
various contractual specifications with which Lean had not compiled. Lt Gorsline
described these deficiencies to Lean in the following terms:
1) 2 x CONNEX GUARD TOWERS:
SOW: The contractor shall build 2, double storey
[sic] Connex guard towers along the fence perimeter of
Depot 0 holding area. The guard towers will include
HVAC and solar electricity self power system following
design #6 Solar panel specs. The contractor will be
responsible for determining how and where the panels will
be mounted. The system shall be sized to provide 6 kW
system output (7.5 kVA) indicated at full load rated power
1% mean ambient summer operating temperature. The
guard tower will follow all the specs of the design in
attachment #4 Two CONNEX Guard Tower. The location
of the guard towers are shown in attachment #5 Site
Layout.
Attachment 4 Para 12: Mirrors: The Contractor
shall furnish and install tow [sic] Convex Security Mirrors
as described in the drawings. Ref page 7 of attachment.
Attachment 4 Para 13: Sandbags: The Contractor
shall also furnish and install 2 rows of filled sandbags
stacked the entire height of the walls on all four sides of
the bottom CONNEX unit.
2) ECP Fence:
- Fence tension wires are to be tightened as per
description in attachment #12 Chain Link Fence
Specifications Sub Para 1.3 .3.
- Fence post footing dimensions are not consistent with
the attachment #12 Chain Link Fence Specifications Sub Para
1.2.3: The post shall be set in concrete foundation with
diameter of30.5 cm (12 in) and 61 cm (24 in) deep. The
minimum embedment length for the posts shall be 50 cm
(18in).
19
- Barbwire on the top of the fence must be tightened
and the Concertina wire lashed in.
3) Ref Sub Para 4.1.4 of So W, Guard Shacks are to have
small wood stoves in them.
4) Gravel must be leveled and compacted for the ECP in
and out routes IAW SoW Task 1: The Contractor shall
level, compact, and slope to drain the entire ECP area. The
contractor will lay, level and compact 150mm depth of
20/40mm sized crushed gravel over the entire Depot 0 ECP
footprint except for the area with the required concrete slab
for the steel panel gates following the attachment #7
Proposed ECP- Depot 0. In addition the contractor shall
lay, level and compact 150 mm of 20/40mm sized crushed
gravel in the transitional road connecting the ECP to the
existing main access road as shown on the drawings.
(R4, tab 14 at 2; findings 8, 11, 13, 14)
22. On 19 August 2013, the CO issued his second "Letter of Concern" to Lean.
He wrote, in part:
1. This letter of concern is being written to express serious
concerns over the ECP and Guard Towers contract. On
17 August 2013 you reported that you believed the contract
was complete. When the COR went to the site, several
discrepancies were found to include:
a. No sand bags in the bottom connex towers
b. No solar panels were installed by the connex guard
towers
c. The period of performance is expired
d. The Chigo did not work in the concrete tower at
the ECP
e. The hand rail on the exterior ladder has faulty
welds and needs to be re-welded
f. In one of the connex towers (and possibly the
other tower also) conduit from the panel had a water tight
elbow going to the exterior light over the door. To get
wire to the outlet for the Chigo, a hole was drilled in the
elbow and ran loose to the outlet. This needs fixed [sic].
20
g. Both electrical panels needs [sic] the breakers
labeled in both Dari and English.
h. Contractor shall furnish and install two Convex
Security Mirrors as described in the drawings. Ref page 7
of attachment.
i. Fence tension wires are to be tightened as per
description in attachment #12 Chain Link Fence
Specifications Sub Para 1.3 .3.
j. Fence post footing dimensions are not consistent
with the attachment #12 Chain Link Fence Specifications
Sub Para 1.2.3: The post shall be set in concrete
foundation with diameter of 30.5 cm (12 in) and 61 cm
(24 in) deep. The minimum embedment length for the
posts shall be 50 cm (18 in).
k. Barbwire on the top of the fence must be
tightened and the Concertina wire lashed in.
1. 4) Gravel must be leveled and compacted for the
ECP in and out routes IAW SOW Task 1: The Contractor
shall level, compact and slope to drain the entire ECP area.
The contractor will lay, level and compact 150 mm depth of
20/40 mm sized crushed gravel over the entire Depot 0 ECP
footprint except for the area with the required concrete slab
for the steel panel gates following the attachment #7
Proposed ECP-Depot 0. In addition the contractor shall lay,
level and compact 150 mm of20/40 mm sized crushed
gravel in the transitional road connecting the ECP to the
existing main access road as shown on the drawings.
m. Ref Sub Para 4.1.4 of SOW, Guard Shacks are to
have small wood stoves in them.
The U.S. Government does not take ownership of the ECP
and guard towers until it has been constructed in
accordance with the SOW. The period of performance for
this contract ended 13 August 2013. One no cost extension
has already been granted. The Contractor is required to
submit a new schedule and excusable delay log.
2. It is up to the Contractor to complete this project on
schedule and obtain the materials for the project. As the
contracting officer, I have considered your duty to seek
assistance and guidance regarding obtaining the materials;
however, your failure to proceed or make progress and
perform under the contract is placing the construction of
21
this project in jeopardy. Performance of this contract must
be completed in accordance with SOW.
3. Failure to correct this matter in a timely manner will
result in more serious actions. This will have a significant
impact on your overall performance rating on this contract
and will jeopardize your ability to receive future contracts
with the Government based on your past performance
rating.
4. You are required to submit a response within three (3)
calendar days of receipt of this letter. Your response shall
include a corrective action plan and a detailed schedule of
completion for the construction of the ECP and Guard
Towers. If you find the information in this letter to be
incorrect or if you have evidence to support the
delinquency, you are required to address that in your
response.
(R4, tab 15; findings 4, 8, 11, 13, 14) Lean's response to this letter of concern, if it
exists, is not part of the evidentiary record.
23. On 27 August 2013, Lt Gorsline and Chief Locher conducted another site
inspection. Through an email of that date, they informed Lean of the results. They
wrote, in part:
We conducted a site inspection of the Northern CONNEX
tower foundation and found that the concrete was not to
standard. The concrete did not have the appropriate
aggregate and was mixed on the ground adjacent to the
footing frame. Please acknowledge that you have received
this email.
(R4, tab 18 at 1; findings 4, 7)
24. On 31 August 2013, the government conducted another site inspection.
The results triggered a third "Letter of Concern" from the CO. He wrote, in part:
1. This letter of concern is being written to express serious
concerns over the ECP and Guard Tower project. The US
Government visited the site on two different occasions
(27 August 2013 and 31August2013). The workmanship
and materials that you have provided are inferior to what is
22
described in the Statement of Work (SOW), Task Force
Phoenix Standards, ANSF Standards and the contract. The
Engineer, Lt Deane Gorsline and the COR SWC Keven
Locher has [sic] not accepted the work completed to date
and has [sic] sent an email on 27 August 2013 to correct
the deficiencies. When the US Government visited the site
again on 31 August 2013, your company went ahead and
placed the connex towers on the concrete pads that were
not built to specifications outlined in the SOW and the TF
Phoenix and ANSF Standards. It is the Contractor's
responsibly [sic] to complete the work as outlined in the
SOW, Task Force Phoenix Standards, ANSF Standards
and the contract.
2. It is up to the Contractor to complete this project on
schedule and obtain quality materials for the project. As
the contracting officer, I have considered your duty to seek
assistance and guidance regarding obtaining the materials
and the overall workmanship; however, your failure to
proceed or make progress and perform under the contract
is placing the construction of this project in jeopardy.
Performance of this contract must be completed in
accordance with the SOW.
3. Your contract expires 5 September 2013. Your contract
will NOT be extended without consideration from your
company. Once the period of performance expires, your
company will be in Default and subject to termination.
Please provide your consideration for review/acceptance
by the Contracting Officer. Failure to correct this matter in
a timely manner will result in more serious actions. This
will have a significant impact on your overall performance
rating on this contract and will jeopardize your ability to
receive future contracts with the U.S. Government based
on your past performance.
4. You are required to submit a response within three (3)
calendar days of receipt of this letter by official letterhead
memorandum format only. An email written response will
not be accepted. Your response shall include a corrective
action plan and a detailed schedule of completion for the
construction of the ECP and Guard Tower Project. You
must also submit any additional information that you feel
23
is necessary as to why the US Government should not find
you in default of this contract. If you find the information
in this letter to be incorrect or if you have evidence to
support the delinquency, you are required to address that in
your response.
(R4, tab 19; findings 4, 14)
25. Through an undated letter, Lean responded to the CO's third letter of
concern. Initially, Mr. Rassin acknowledged the deficiencies cited by government
personnel. He wrote:
I went to the site today and saw some issues such as
concrete pad under the guard towers look not good, and
very embarrassing issue was the aggregate in front of
guard towers - the workers took it from car park - I do
apologize for that. Despite that we had more than enough
aggregate in our area which is more suitable for concrete,
but workers did not bother to bring it from our area but
instead took it from nearby car park - It is all about them
being lazy. Likewise the supervisor in the site told me that
he put good concrete under guard towers but when I visit
the site it does not look good to me. Regarding the work
progress I am more concern than you, because every day
we are losing money or the slower they work the more we
lose. The solar company gave us very bad time, they are
working very slowly and unproductive. This Shirking
problem is the biggest pressure, we feel very week [sic] in
solving the issue, despite trying many incentivized
compensations models but no good result so far, may be
because here [in] Afghanistan, workers are shortsighted
with no long-run business thinking. The last couple of
days of thinking and discussion within our firm found that
shirking problem among workers (the tendency to do less
work when the return is similar) being dishonest, careless,
and not having similar vision as the company, are the main
factors that cause all these problems.
But then Mr. Rassin attempted to blame the deficiencies on the government
personnel who were administering and inspecting the project. He stated:
I think it will not be good for us to blame others, so we
don't want to blame, but it will be good to at least share
24
our thoughts regarding issues at your end. One of the main
problems at your end is personal issue, as we discussed this
before we strongly believe that the new team has personal
issue with us. Therefore they are biased and over critical.
If you track their first few emails, you see they only asked
a couple of deficiencies to be rectified but the more we
worked the more they found excuses e.g. first they said,
change the fence angle, then put more concrete under the
post, then put tension wire, then make straight the
concertina wire, then fix the gap at the top ... .I am sure they
will go on and on.
(R4, tab 20 at 1)2 As a part of Lean's efforts to rectify the deficiencies which he had
acknowledged, Mr. Rassin wrote:
We are done with ECP, as we provided more gravel, fixed
the faulty welding, the lights, the fence, the wooden stoves.
We also brought the solar panels and barriers and other
equipment, we only need to install it. Now the main issue
is concrete pad under guard towers, please tell us your
decision regarding this. Also it is important to mention
that Afghan official desperately want[ s] us to push back
the location of guard towers, this is due to complain[t]
from neighboring residents, they believe the guard tower
breach[ es] their privacy.
(R4, tab 20 at 3)
26. On 31 August 2013, Lt Gorsline and Chief Locher conducted another
inspection during which they discovered several deficiencies in the concrete work.
Lt Gorsline wrote, in part, as follows:
Myself and the COR for the ANA ENG Cell, Chief Locher,
conducted a site inspection of the CSD ECP and CONNEX
towers today 31/08/2013. We found that the concrete
quality was as unsatisfactory as it had been on our site
inspection on the 27/08/2013 as detailed below.
Additionally, the appropriate cure times are not being
followed. The concrete would have been poured between
the 24/08/2013 and the 28th and the CONNEX towers were
2
By "new team," Mr. Rassin was likely referring to the replacement of the first COR,
Mr. Glass, with Chief Locher (tr. 2/9).
25
placed on the foundations as soon as the 31/08/2013. This
work quality is unsatisfactory and reflects poorly on the
competence of our departments if we allow this to continue.
My recommendation is encourage the contractor to
complete the ECP and then to carry out a partial ha[ n]d
over of the ECP portion to the ANA. IOT complete the
ECP the contractor must make the following reparations:
fix to the Guard Tower lighting, place adequate amount of
gravel on in and out routes, and install stoves in the Guard
Shacks. At this point the contractor can be paid for the
work that he has completed.
We conducted a site inspection of the CONNEX tower
foundations on Aug 27 2013 and found that the concrete
was not to standard. The concrete did not have the
appropriate aggregate, was mixed on the ground adjacent to
the footing frame, and rebar was exposed in certain areas.
(R4, tab 21at1; findings 4, 7, 13-14)
27. On 3 September 2013, the government conducted another site inspection.
Its representatives noted some improvement but also many deficiencies which had not
been rectified. The government's situation report (SITREP), which included several
photographs of the site conditions, stated:
Was on site today and there was some unexpected
progress. Mainly in the way of solar panels being installed
by the two double conex [sic] towers.
Although the stands for the panels at the moment are
nothing more than rebar welded on the stands and drove
into the ground. This won't be acceptable of course. The
workers on site said they thought it was going to be put on
blocks. Stairs support has been installed and sandbags are
being put in the lower conexs [sic] per the SOW. Welds
on the concrete guard tower hand rail has been repaired.
The light fixture in concrete tower fixed but there isn't any
power to the whole tower so not sure if it works.
No work on the ECP area as far as gravel and fixing the
fence problems. They stacked CMU blocks under the
guard shacks. Fences and tension wire still not stretch[ ed]
26
tight. Gravel still not brought up to thickness indicated in
SOW. Concrete at ECP area is not up to quality as well.
Gates needs adjust[ing]. Wheels aren't touching ground.
Drainage through the wall will need to be re-dug to allow
run off to run to the ditches. The pad Concrete not to
standard. Thickness is good but easily chips away and
very little agragate [sic] in the mix.
(R4, tab 22 at 1-4; findings 4, 7, 9, 11, 14)
28. On 10 September 2013, Lean forwarded an email to the CO in which it
stated that it had completed the ECP portion of the contract (R4, tab 24 at 1). On
24 September 2013, Lean forwarded an email to the government, stating as follows:
The subject project was complete and ready for handover
on Saturday (21109/2013 ), I emailed to Mr. Mark Penwell
to come for handover, but I never received any reply from
Mr. Penwell.
Regarding your point (problems in the project) I should say
there is no problem in the project (project is absolutely fine),
the problem is the COR, I knew that because of personal
issue the COR is not going to accept the project-5 weeks
ago, he sent us a list of tasks that we have to correct which
we did.
Also I should point out that in the last couple of weeks I
never received any feedback from COR to tell us about the
problems in the project. I mentioned this issue in our
official Memorandum (COR is not willing to contact us)
informing Mr. Mark Penwell that once our project is
complete we will not accept any changes, but Mr. Penwell
did not do anything about this and we received no email
from USG telling us about any problem. So, we ended our
contract with our workers and sub-contractors, hence we
cannot do anything now and we are sure that the project is
absolutely fine, please kindly process our payment as the
USD exchange rate is badly changing and we are losing.
27
Moreover, I want to inform you that ANA started using the
Guard tower (see photos), now using our facility and not
paying for that is not FAIR.
(R4, tab 26 at 1)
29. On 29 September 2013, the CO accompanied by Chief Locher and Lt Gorsline,
conducted another site visit, relying upon Lean's assurances that the project had been
completed. By this point in time, the revised contractual completion date of 5 September
2013 had elapsed. In his memorandum of 29 September terminating the contract for
default, the contracting officer noted deficiencies with the concrete slabs under the feet of
the CONNEX towers, unacceptable installation of the solar panels, failure to provide a
certified electrician, defective welds, unfilled sandbags, failure to install gravel in the ECP
area, and improper installation of the wood stoves in the guard towers. The CO concluded
that the contract was not complete and that it would take Lean "considerable weeks to
correct" the various deficiencies. (R4, tab 28 at 1-3) A cure notice requirement was not
contained in the Default clause (finding 3). However, the government reserved "the right"
in the SOW to issue such a notice. That the government chose not to exercise this right
does not affect the efficacy of the termination under the facts presented here (finding 15).
30. During the site visit of 29 September 2013, the CO stressed to Mr. Rassin
that Lean could only be paid for the work which it had completed in accordance with
the SOW. Mr. Rassin became very agitated and replied: "Your attitude[] and poor
representation of the American Government is [sic] going to result in increased
insurgent activities." (R4, tabs 27, 32) The government representatives who were
present viewed this as a threat and immediately left the project site (R4, tabs 33, 34).
Despite his defiant attitude at the parties' meeting of 29 September 2013, Mr. Rassin,
in his hearing testimony, conceded several of the deficiencies noted by the
government. For example, he admitted through one of his photographs that his forces
had constructed only half of the concrete slab under the steel panel gates, as required
by the contract (tr. 2/93-96; findings 4, 7, 13). In addition, Mr. Rassin admitted that
Lean did not comply with the contractual requirement to provide 150 mm of 20/40 mm
crushed gravel over the entire ECP footprint (tr. 3/21-22, 102; finding 14 ). Also
Mr. Rassin admitted that the guard posts were placed on concrete blocks, rather than
on a concrete foundation. Indeed, he opined that a foundation was not even required.
(Tr. 3/30; findings 4, 13-14, 24, 26) Also, Mr. Rassin admitted that Lean did not
install concrete footers for the solar panel array frame (tr. 3/86-89; findings 4, 9, 14).
Finally, Mr. Rassin admitted using parking lot gravel for the concrete used for the
CONNEX guard tower foundation. He also conceded that Lean never corrected this
deficiency (tr. 3/136-37; findings 4, 7, 12-13).
28
31. On 1 October 2013, the CO forwarded another notice of termination for
default to Lean, in which he stated, in pertinent part: "The period of performance
ended on 5 September 2013 [and] you have only completed 73.96 percent of the
project" (R4, tab 30 at 1). This completion percentage was based upon detailed
calculations performed by Lt Gorsline and Chief Locher. Using the "Bill of
Quantities/Materials that was provided by Lean" as part of its proposal, the project
engineer performed the following tasks:
I have systematically gone through each task and assigned
a[ n] overall percentage of completion for each task.
I based it equally on the percentage of work complete as
well as the percent of materials provided.
I took the value being charge[ d] by Lean Corps for each
task and applied the percentage completion.
I took the final value of work completed and divided it by
the work Leans Corps was billing us for to find the
TOTAL PERCENT COMPLETION: 74%.
(R4, tab 29) This percentage figure gave Lean credit for various sub-tasks which it
had not fully completed. Attached to Lt Gorsline's memorandum were various
photographs depicting the state of work on the contractual sub-tasks after Lean had
completed its efforts (R4, tab 29, passim). At the hearing, Chief Locher gave credible
testimony describing the analysis which he and Lt Gorsline had performed regarding
the completion percentages of the various sub-tasks in minute detail (tr. 2/69-77).
32. On 15 November 2013, Lean timely appealed the CO's final decision to
this Board. In its complaint, Lean alleged that it had completed 100% of the work on
the project (comp I. -,r 15).
DECISION
It is axiomatic that the government bears the burden of proving that a default
termination was proper. Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 763
(Fed. Cir. 1987). Moreover, it is settled law that a default termination is a drastic
sanction which should be sustained only for good grounds and on solid evidence.
JD. Hedin Construction Co. v. United States, 408 F .2d 424, 431 (Ct. Cl. 1969). If the
government establishes a prima facie case that the termination was proper, the burden
of production, or going forward with the evidence, shifts to the contractor. Benju
Corp., ASBCA No. 43648 et al., 97-2 BCA -,r 29,274 at 145,654.
29
Here, the government has met its burden. Although the contractual completion
date was extended from 30 July 2013 to 5 September 2013 through two modifications
(finding 18), Lean did not complete the work. Throughout the performance period, the
CO kept Lean informed of its deficiencies through three letters of concern (findings
19, 22, 24). Despite continual efforts on the parts ofthe CO, COR, and the project
engineer, Lean was unable to rectify its deficiencies and to complete the project
(findings 19-31 ).
In its pleadings and at the hearing, Lean argued that it had, in fact, performed
100% of the contractual requirements. This contention is not persuasive. The analysis
conducted by Chief Locher and Lt Gorsline demonstrates that, at best, Lean completed
74% of the work by the revised contractual completion date (finding 31). Hence, we
must reject Lean's argument in this regard. Referring to an earlier alleged conclusion
by Mr. Glass, the first COR on the project, that it had completed 80% of the project,
Lean contends that he signed a DD250 form to this effect and that the completion
percentage could not have declined from 80% to 73.96% (app. br. at 3): However, a
review of Mr. Glass's testimony reveals that the 80% figure was only an approximate
number. Moreover, there is no record evidence that Mr. Glass executed a DD250 form
to this effect (tr. 2/216). Finally, as part of his inspection, Mr. Glass never inspected
either the solar panels for the CONNEX guard towers or the towers themselves
(tr. 2/217-21). Based on Mr. Glass's testimony, the Board declines to give credence to
the 80% figure.
Lean also attacks the probative value of the site photographs used by the
government to demonstrate the various deficiencies which had not been resolved at the
time when the contract was partially terminated for default (app. br. at 18). The Board
also rejects this argument. Chief Locher vouched in his testimony for each of the
photographs, explaining when and under what circumstances they were taken. In
addition, the CO, Mr. Penwell, testified that he accompanied Chief Locher and
Lt Gorsline to the job site on 29 September 2013 and reviewed each part of the project
to determine what were discrepancies and which part of the work was properly
performed. (Tr. 2170-77, 161)
Lean also contended that the default termination was the result of a personal
animus against it by government personnel (finding 25). There is no credible record
evidence of any bias against Lean by any government representatives. Accordingly,
we also reject this contention.
30
CONCLUSION
The appeal is denied.
Dated: 18 May 2016
MICHAEL T. PAUL
Administrative Judge
Armed Services Board
of Contract Appeals
I concur
~M~
MARK N. STE~LER RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals
I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 59016, Appeal of Lean
Construction and Engineering Co., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
Recorder, Armed Services
Board of Contract Appeals
31
