ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                    )
                                                )
TranLogistics LLC                               )      ASBCA No. 61574
                                                )
Under Contract No. M27100-17-P-6012             )

APPEARANCES FOR THE APPELLANT:                         Ross Watzman, Esq.
                                                       Eric Whytsell, Esq.
                                                        Jackson Kelly PLLC
                                                        Denver, CO

APPEARANCES FOR THE GOVERNMENT:                        Craig D. Jensen, Esq.
                                                        Navy Chief Trial Attorney
                                                       Maj John E. Buis, USMC
                                                        Associate Counsel
                                                        Eastern Area Counsel Office
                                                        Camp Lejeune, NC

                 OPINION BY ADMINISTRATIVE JUDGE KINNER

       The parties chose to proceed pursuant to the expedited procedures of Board
Rule 12.2,* submitting a brief in lieu of a hearing. Appellant's brief was filed
August 7, 2018. The government's brief was filed August 14, 2018. Appellant's reply
was filed August 17, 2018.

        Appellant, TranLogistics LLC, claims entitlement to $16,182.50 for its alleged
extra costs incurred on a contract with the Marine Corps to move four ammunition
lockers from an air base in Honduras to locations in Honduras, Guatemala, Belize and
El Salvador. The lockers for Guatemala and Belize were delayed at the border until
the last day of contract performance. The locker for El Salvador was not delivered
because the contract expired prior to TranLogistics receiving the necessary customs
documentation. The Marines contend that TranLogistics is responsible for the delays
because section 3 .2 of the contract required TranLogistics to provide a customs broker
to facilitate•the transition of the cargo to the final destination (R4, tab 1 at 6). Contrary
to section 3 .2, the Marines consistently demonstrated an understanding that customs
documentation was supplied by the government (R4, tabs 4, 5; app. br., exs. 8, 14).
The contracting officer interpreted the customs services as TranLogistics does,
expecting the government to provide documents (app. br., exs. 5, 7), including the

* A decision under Rule 12.2 shall have no value as precedent, and in the absence of
       fraud, shall be final and conclusive and may not be appealed or set aside.
critical tax exoneration forms (app. br., ex. 12), prepared by United States embassy
personnel (app. br., ex. 7 at 178, exs. 12, 14 at 81). There is no evidence that the
Marines partially terminated the contract for convenience or ordered TranLogistics to
stop work (app. br., ex. 19 at 163, 167). There is insufficient evidence to show the
government provided customs documentation in its prior contracts (app. br., ex. 1
at 473-75).

       The parties' conduct during contract performance is consistent with an
alternative meaning of section 3 .2, that the Marines provide tax exempt documents to
TranLogistics. RESTATEMENT (SECOND) CONTRACTS§ 223 cmt. b; see also Sperry
Flight Sys. v. United States, 

, 923 (Ct. Cl. 1977). Moreover,
TranLogistics relied upon the Marines for the necessary documents without knowing
the Marines would refuse to assist delivery to El Salvador, which establishes estoppel
as well. Mabus v. Gen. Dynamics C4 Sys., Inc., 

, 1359 (Fed. Cir. 2011).

        The delays claimed by TranLogistics due to a strike, a power failure, and a
computer system failure (app. br., ex. 15 at 85, ex. 17 at 149); and five days of delay at
the border in Belize and demurrage charges of $2,188 per day (app. br., ex. 17 at 152),
are excusable but not compensable. !AP Worldwide Services, Inc., ASBCA No. 59397
et al., 17-1 BCA ,r 36,763 at 179,158. The shipment to Belize was also delayed
because TranLogistics was unaware of a required document held by the government
office that processes tax exemption documents (app. br., ex. 16 at 87). TranLogistics
fails to segregate the costs of time, trucks, and the demurrage charges for this
compensable delay. Without direct proof of the amounts TranLogistics incurred from
compensable delay, it cannot recover. Joseph Pickard's Sons Co. v. United States, 

, 742 (Ct. Cl. 1976).

       The improper assertion by TranLogistics that it would not continue transport
without a modification to increase the contract price did not introduce further delay
(R4, tab 9; app. br., ex. 17 at 149). However, the government failed to recognize the
contract should be extended by the days of excusable delay. Because TranLogistics
would have completed delivery to El Salvador and earned the full contract price,
$11,115.00, TranLogistics is entitled to the balance of $2,329.50, plus interest under
41 U.S.C. § 7109 from November 9, 2017, the date the contract officer received the
claim.

      Dated: August 29, 2018



                                                   Administrative Judge
                                                   Armed Services Board
                                                   of Contract Appeals

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      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. 61574, Appeal of
TranLogistics LLC, rendered in conformance with the Board's Charter.

       Dated:



                                                  JEFFREY D. GARDIN
                                                  Recorder, Armed Services
                                                  Board of Contract Appeals




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