Nassar Group International
Docket: ASBCA 58451, ASBCA 59465, ASBCA 59701

( 
ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of - ) 
) 
Nassar Group International ) 
) 
Under Contract No. W917PM-07-C-0085 ) 
ASBCA Nos. 58451, 59465, 59701 
APPEARANCE FOR THE APPELLANT: Francisco Escalante, Esq. 
Escalante Yormack Law, PLLC 
Miami, FL 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
Engineer Chief Trial Attorney 
. James D. Stephens, Esq. 
Tania Wang, Esq. 
Engineer Trial Attorneys 
U.S. Army Engineer District, Middle East 
Winchester, VA 
OPINION BY ADMINISTRATIVE JUDGE SWEET 
ON THE PARTIES' MOTIONS FOR SUMMARY JUDGMENT AND IN LIMINE 
These appeals involve disputes arising out of a contract between the Army 
Corps of Engineers (Corps or government) and appellant Nassar Group International 
to design and build a garrison in Afghanistan. The government claims that appellant 
used defective concrete, and that its failure to install ground conductors was a latent 
defect. Appellant claims that it is entitled to an equitable adjustment for increased 
costs it allegedly incurred due to tax exemption and customs delays, security and 
political delays, and weather delays. 
Appellant has filed four motions in limine. In the first motion in limine, 
appellant moves to exclude evidence relating to the allegedly defective concrete on 
spoliation grounds. Appellant argues that the government destroyed concrete samples 
during testing. We deny appellant's first motion in limine because other samples were 
available. 
In its second motion in limine, appellant seeks to exclude evidence about th~ 
ground conductors. Appellant argues that the .government knowingly accepted 
appellant's use of an alternative system. We deny appellant's second motion in limine 
because there is a genuine dispute as to whether the government knowingly accepted 
appellant's use of an alternative system; 

In its third motion in limine, appellant seeks to have us deem its request for 
admissions (RF As) admitted. Appellant argues that the government failed to provide a 
response to the RF As within 45 days of service. We deny appellant's third motion in 
limine because appellant did not serve the RF As on time, many RF As seek st.atements 
of opinion or law, and appellant did not suffer any prejudice from the government's 
late responses. 
In its fourth motion in limine, appellant seeks for us to take judicial notice of 
certain facts. We deny appellant's fourth motion in limine in part, and grant it in part. 
Appellant then moves for summary judgment on the government's claims. 
Appellant argues that, if we grant its first three motions in limine, that would leave no 
genuine issue of material fact, and appellant would be _entitled to judgment as a matter 
oflaw. We deny appellant's motion for summary judgment on the government's 
claims because we deny appellant's first three motions in limine. 
Appellant also moves for summary judgment on its claims. Appellant argues 
that, if we grant its third motion in limine, then the deemed RF A admissions would 
leave no genuine issues of material fact, and it would be entitled to judgment as a 
matter of law. Appellant further argues that it was impossible to complete the contract 
within the period of performance. We deny appellant's motion for summary judgment 
on its claims because we deny its third motion in limine, and we do not possess 
jurisdiction over its impossibility claim. 
Lastly, the government moves for summary judgment on appellant's claims. 
The government argues that appellant is not entitled to an equitable adjustment for the 
increased costs resulting from purported delays because the government did not cause 
some delays, various contract clauses preclude an equitable adjustment, appellant 
could have avoided those costs, the government's acts were sovereign acts, and 
appellant has not submitted a Critical Path Method (CPM) analysis. We deny the 
government's motion for summary judgment on appellant's claims to the extent that 
those claims are based upon government caused delays, and grant the motion to the 
extent appellant's claims are based upon non-government caused delays. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 
I. F actuafBackground 
A. The 0085 Contract 
~- On October 23, 2007, the government awarded Contract No. W917PM-07-C-0085 
(0085 Contract) to appellant for the design and construction of the Afghan National Army 
2 

(ANA) Garrison at Khair Kot, Paktika Province, Afghanistan (R4, tab 10 at 1-2).1 As part of 
the construction, the 0085 Contract required that "[i]nsulated grounding conductors ... shall 
. be installed in all feeder and branch circuit raceways" (id. at 137). The 0085 Contract was a 
firm-fixed-price contract (id. at 3-33). 
2. The 0085 Contract incorporated by reference several standard Federal 
Acquisition Regulation (FAR) clauses (id. at 33-35). First, it incorporated 
FAR 52.242-14, SUSPENSION OF WORK (APR 1984) (id. at 35), which provides: 
If the performance of all or any part of the work is, for an 
unreasonable period of time, suspended, delayed, or 
interrupted ( 1) by an act of the Contracting Officer in the 
administration of this contract, or (2) by the Contracting 
Officer's failure to act within the time specified in this 
contract ( or within a reasonable time if not specified), an 
adjustment shall be made for any increase in the cost of 
performance of this contract ( excluding profit) necessarily 
caused by the unreasonable suspension, delay, or 
interruption .... However, no adjustment shall be made 
under this clause for any suspension, delay, or interruption 
to the extent that performance would have been so 
suspended, delayed, or interrupted by any other cause, 
including the fault or negligence of the Contractor .... 
FAR 52.242.,14(b) 
3. Second, the 0085 Contract incorporated FAR 52.229-6, TAXES - FOREIGN 
FIXED-PRICE CONTRACTS (JUN 2003), which stated that the contract price generally 
jncluded all applicable taxes and duties, and would be increased by the amount of any 
tax excluded by the contract (R4, tab 10 at 34; see generally FAR 52.229-6(c-d)). 
FAR 52.229-6(i) required that "[t]he Contractor shall take all reasonable action to 
obtain exemption from or refund of any taxes or duties[.]" Pursuant to Defense 
Federal Acquisition Regulation (DFAR) 252.229-7001, the 0085 Contract expressly 
stated that "[t]he Contractor may obtain a refund of the import duties from its 
government or request the duty-free import of an amount of supplies or components 
corresponding to that used from inventory for this contract" (id. at 46). 
4. Third, the 0085 contract incorporated FAR 52.247-34, F.0.B. DESTINATION 
(Nov 1991), which provided that "[t]he Government shall not be liable for any 
delivery, storage, demurrage, accessorial, or other charges involved before the actual 
delivery ... of the Supplies to the destination, unless such charges are caused by an act 
1 Citations to page numbers are to Bates Numbers in the Rule 4 file. 
3 

or order of the Government acting in its contractual capacity" (R4, tab 10 at 35; 
FAR 52.247-34(a)(2)). 
5. The 0085 Contract also contained several special provisions. First, the 0085 
Contract made appellant responsible for site security; the physical security of all 
materials, supplies, and equipment; and attacks from hostile entities (R4, tab 10 at 53, 
· 148, 165). As the 0085 Contract stated, "[t]he Government makes no guarantee to 
provide the contractor with security, and bears no obligation to reimburse the 
contractor for costs arising from the attacks of hostile entities'' (id. at 165). 
6. Second, the 0085 Contract authorized the contracting officer (CO) to extend 
the time for performance - but not to adjust prices - due to unusually severe weather 
delays (R4, tab 10 at 161). 
7. Third, the 0085 Contract indicated that "[c]ompliance with all customs and 
import rules, regulations and restrictions" is appellant's sole responsibility (id. at 162). 
The 0085 Contract further stated that: 
(Id. at 165) 
It is the responsibility of the contractor to be 
knowledgeable of and to abide by any and all applicable 
customs clearance procedures and requirements that may 
be necessary for the transportation of supplies and 
equipment into Afghanistan .... The US Army Corps of 
Engineers, Afghanistan Engineer District, neither controls 
nor is responsible for any such customs clearance 
procedures, requirements, or changes thereto. 
8. Fourth, the 0085 Contract required a final acceptance inspection. The 0085 
Contract also required that, at least 14 days prior to the inspection, appellant give the 
CO notice assuring him that all specific items previously identified as being 
unacceptable will be completed and acceptable by the final acceptance inspection (R4, 
tab 10 at 224). 
B. Performance 
9. Pursuant to the Status of Forces Agreement between the government and the 
Islamic Republic of Afghanistan (Afghanistan), goods imported into Afghanistan for 
the exclusive use of the government are not subject to taxes (R4, tab 43 at 25). In 
order to ensure that the government did not abuse that tax exemption, the government 
issued a Standard Operating Procedure (SOP) for Customs Clearance Request 
Operations, which outlined the process of obtaining tax exemptions (id.; R4, tab 42; 
4 

see SOF 17). Under the SOP, the contracting officer representative (COR) would 
email a Customs Clearance Request (CCR) for a Diplomatic Note to the Department of 
Defense Liaison Officer (LNO) at the United States Embassy (!3-4, tab 42 at 21). The 
LNO would then issue a Diplomatic Note requesting tax exemption, which certified 
that the goods were for the exclusive use of the United States (R4, tab 43 at 25). 
Appellant then had to take the CCR, Diplomatic Note, and other documents to the 
Afghanistan Ministry of Foreign Affairs (MoFA) and Customs at the Ministry of 
Finance (MoF) to obtain stamps and signatures (id. at 26; R4, tab 42). The SOP 
required that the LNO,. "[ o ]n behalf of DOD, liaise with the Director General of 
Customs, MoFA and the representatives of the MoF" (R4, tab 43 at 33). The LNO 
also had to "[a]ssist contractors and CORs when issues arise preventing the clearance 
of cargo" (id.). Once approved by Afghanistan, the imports could clear Cust~ms and 
be released for final delivery (R4, tabs 42-43). 
10. According to a table submitted with appellant's claim and contemporaneous 
emails, it usually took the government a week or two to provide Diplomatic Notes.· 
However, in five instances it took more than a month.2 The table also showed that 
Afghanistan was slow processing tax exemption requests. (R4, tabs 50; 51 at 499, 516, 
520, 525) 
11. On February 10, 2010, appellant emailed the Corps, stating that letters from 
the Embassy would expedite the shipment of two transit mixers (R4, tab 52 at 540-42). 
The Corps responded the same day that it would follow-up with the Embassy (id.). 
The following day, the Corps asked appellant to prepare a letter to the United States 
Consulate·in Karachi, Pakistan (id. at 544). The Consulate responded on February 14, 
2010, stating that the delays were due to the shipping agent (id. at 554). 
12. George Nassar- appellant's General Manager- submits an affidavit 
declaring that the government required appellant to provide site-access to "various 
entities," including the ANA. Those entities purportedly caused delays by 
compromisii.'lg the security of appellant's persoru1el, and disrupting operations. (App. 
summ. judg. resp., ex. 1 ,124-25) 
13. Appellant also alleged that various security and political circumstances 
delayed performance (R4, tab 41 at 3). There is no evidence that the government 
caused those circumstances in its contractual capacity. 
2 In particular, it took more than a month to issue Diplomatic Notes for Bills of Lading 
Nos. SAFM752167246, BHBAHPKHl 1000064, APLU020950805, 
MISCDMN000007411, and ESl 1070067 (R4, tab 50). 
5 

14. Appellant alleged that the above delays pushed the delivery of certain 
goods into a period of "unusually severe weather," and "record-breaking rainfall" 
(ASBCA No. 58451 compl. at 15). 
15. Mr. Nassar also declared that "[i]f called to testify, it would be my 
testimony that the delays caused by the paperwork and subsequent·issues discussed 
throughout this affidavit, went to the critical path of the project" (app. summ. judg. 
resp., ex. 1 ~ 30). In support of that assertion, Mr. Nassar declares that appellant 
provided and updated schedules, using the CPM, during the project (id.~ 33). He 
further declares that the overall project delay was due to government caused critical 
path delays, and not to any fault of appellant (id.~ 34). 
16. In 2009 and 2010, appellant tested the concrete it had installed (app. supp. 
R4, tabs 241-42). 
17. On November 15, 2010, the government conducted an inspection of 
appellant's electrical work on the project, and prepared an electrical inspection report 
(app. supp. R4, tab 244). The report noted that "[t]here is a great amount of electrical 
work that still needs to be performed[] in order to complete the work in 30 days" (id. 
at 2). The report also stated that "[t]he bellow [sic] picture indicates something that 
should be addressed immediately, as to limit any further delay" (id.). The report then 
reproduced a picture purporting to show a missing ground conductor (id.). Thereafter, · 
the government's electrical engineer sent an email on January 29, 2011, discussing his 
concern with the lack of ground conductors (app. supp. R4, tab 249 at 1). There is no 
evidence appellant submitted a notice that it corrected that deficiency, or that ther~ was 
a final inspection. 
18. In July and August 2013, the government tested 54 concrete samples, 
destroying the samples in the process (app. supp. R4 tab 237). There is no evidence 
that the government used anything other than industry standard procedures for 
conducting the tests. 
11 Procedural History 
19. On March 16, 2012, appellant submitted a certified claim to the 
government (R4, tab 41). Appellant's claim sought an equitable adjustment for the 
demurrage, detention, replacement rental equipment, and increased overhead costs it 
purportedly incurred as a result of tax exemption and customs delays, security and 
political delays, and weather delays (id. at 2-4). The claim contained no factual 
allegations regarding whether it was possible to perform the 0085 Contract within the 
period of performance (id.). · 
6 

20. On September 12, 2012, the CO issued a final decision (COFD) denying 
appellant's claim in its entirety (R4, tab 2). 
21. On December 11, 2012, appellant filed a notice of appeal with the Board, 
which we docketed as ASBCA No. 58451. 
22. On April 17, 2014, the CO sent appellant a demand for payment for 
concrete and electrical work deficiencies (R4, tab 234 at 4-7). 
23. On May 5, 2014, appellant submitted a response to the CO's demand for 
payment (R4, tab 235). Appellant's response requested a COFD regarding the demand 
(id. at 1). 
24. On August 7, 2014, appellant filed a notice of appeal with the Board on the 
basis of a deemed denial, which we docketed as ASBCA No. 59465. 
25. On November 19, 2014, the CO issued a COFD, asserting a government 
claim for concrete and electrical work deficiencies (R4, tab 219 at 1 ). 
26. On November 21, 2014, appellant filed a notice of appeal with the Board, 
which we docketed as ASBCA No. 59701. 
27. On November 18, 2015, the Board issued a Revised Prehearing Scheduling 
Order. Under that order, the parties had to exchange expert reports by July 29, 2016. 
The order required the parties to comply with the expert witness disclosure and report 
requirements of Federal Rule of Civil Procedure 26(a)(2). Moreover, discovery closed 
under the order on September 30, 2016. Appellant did not seek an extension of that 
deadline. 
28. According to an affidavit from Mr. Nassar, appellant sent an employee to 
the garrison to obtain a concrete sample in the spring of 2015. While he contends that 
appellant attempted to coordinate access beforehand, he does not specify how. The 
ANA denied appellant access. (App. reply in support of mot. in limine for spoliation, 
ex. A)· 
29. On August 13, 2016, appellant requested that the government assist 
appellant in obtaining access to the garrison so appellant could collect concrete 
samples (gov't first mot. in limine resp. ex. B). In a September 15, 2016 email, 
appellant stated that it was "working on the list of attendees for the Afghanistan visit 
and some suggested dates" (id. at ex. C). It is unclear whether the September 15, 2016 
email was even a following-up on its August 13, 2016 request for assistance in 
7 

obtaining garri.son access. Even assuming it was, there is no evidence that appellant 
provided the government a list of attendees or suggested dates. 3 
30. On August3 i, 2016 - less than 45 days before the September 30, 2016 
discovery deadline-appellant served RF As on the government ( app. combined 
motions, ex. A).4 Some of the RF As sought statements of opinion or law. For 
example, paragraph 25 requested that the government "[a]dmit or deny that [appellant] 
is entitled to a judgment for and to recover damages in the amount of $8,774,283.84 
for the breaches discussed in [paragraphs] 10 through 24" (id. at 3). Similarly, 
paragraph 32 requested that the government '"[a]dmit or deny that [appellant] is 
entitled to recover $8,774,283.84 for the breaches discussed in paragraphs 25 through 
31" (id. at 4). The government did not respond to the RFAs until its Third Motion in 
1 
Limine Response (gov't third mot. in limine resp. at 2-3). Appellant has not shown 
prejudice from those late RF A responses. 
31. Appellant submitted its witness list. That witness list did not identify 
Mr. Nassar as an expert (Bd. corr. <ltd. Oct. 14, 2016 at 2-3). 
DECISION 
I Appellant's Motions in Limine 
A. Appellant's First Motion in Limine (Spoliation) 
The government's _destruction of concrete samples during testing did not 
constitute spoliation justifying exclusion of all evidence regarding allegedly defective 
concrete. The party seeking sanctions for spoliation bears the burden of establishing 
that: 
(1) [T]he party having control over the evidence had an 
obligation to preserve it when it was destroyed or altered; 
(2) the destruction or loss was accompanied by a "culpable 
state of mind;" and (3) the evidence that was destroyed or 
3 In its reply, appellant makes various allegations regarding steps it purportedly took to 
coordinate a site-visit with the government, but cites no evidence to support, 
those allegations. In any event, appellant's allegations do not establish that 
concrete samples have been unavailable. The allegations merely show that 
appellant made the litigation decision to prioritize other discovery (app. reply in 
support of mot. in limine for spoliation at 7-8). 
4 While the RF As state that appellant served the RF As on August 31, 2015, that clearly 
was a typographical error because the transmitting email was dated August 31, 
2016 (app. combined motions, ex. A). 
8 

altered was "relevant" to the claims or defenses of the 
party that sought the discovery of the spoliated evidence, 
to the extent that a reasonable factfinder could conclude 
that the lost evidence would have supported the claims or 
defen~es of the party that sought it. 
Ensign-Bickford Aerospace & Defense Co., ASBCA No. 57929, 13-1 BCA, 35,322 
at 173,385 (internal citations omitted). The destruction of the only sample during 
testing may constitute spoliation. Northrop Grumman Corp., ASBCA Nos. 52178, 
52784, 52785, 53699, 03-2 BCA, 32,278 at 159,702:-05. However, sample 
destruction does not constitute spoliation if other samples were available. Id. 
Here, 5 appellant has not shown that additiona\ concrete samples were 
unavailable. Appellant's vague allegations ~bout a single visit to the garrison is 
insufficient to establish that additional samples were unavailable (SOF , 28). On the 
contrary, the fact that the parties attempted to arrange for appellant to obtain an 
additional concrete sample during discovery - which apparently failed due to 
appellant's inaction - suggests additional samples were available (SOF tjf 29).6 
Because appellant has not shown that additional samples were unavailable, the 
destruction of samples during testing did not constitute spoliation. Therefore, we deny 
appellant's first motion in limine. 
B. Appellant's Second Motion in Limine (Latent Electrical Defects) 
Appellant is not entitled to the exclusion of evidence concerning insulated 
ground conductors because there are genuine issues of fact as to whether the 
government knowingly accepted appellant's installation of a different system than 
ground conductors (app. co~bined motions at 2-3). "A latent defect is usually defined 
as one that is hidden from the knowledge as well as from the sight and which could not 
be discovered by ordinary and reasonable care or by a reasonable inspection." 
Geranco Affg. Corp., ASBCA No. 12376, 68-1 BCA ~ 6,898 at 31,861 (internal 
citations omitted). Therefore, a "defect" is not latent if the government knows of the 
purported defect, and nevertheless accepts delivery. States Marine Corp., ASBCA 
No. 4779, 59-2 BCA ,2,463 at 11,618; Hercules Engineering &Mfg. Co., ASBCA 
No. 4979, 59-2 BCA, 2,426 at 11,417. Here, a reasonable fact-finder could find that 
the government did not knowingly accept the alternative system based upon the 
5 We need not- and do not- decide whether the government had an obligation to 
preserve when it destroyed the samples because, as discussed above, there was 
no spoliation, even assuming such an obligation to preserve existed. 
6 Appellant's arguments about the purportedly small concrete .sample size go to the 
weight- and not the admissibility - of the samples (app. reply in support of 
mot. in limine for spoliation at 5-6). 
9 

evidence that the November 15, 2010 report identified the lack of ground conductors 
as a deficiency, there appears to have been no notice that appellant corrected that 
deficiency, and there appears to have been no final acceptance inspection (SOF 117). 
Because there is a genuine dispute as to whether the government knowingly accepted 
the alternative system, we deny appellant's second motion in limine. 
C. Appellant's Third Motion in Limine (RF As) 
We do not deem that the government admitted the RF As ( app. combined 
motions at 3-4 ). Under Board Rule 8( c )(2), a party may serve "[a] request for 
admission of specified facts ... to be answered or objected to within 45 days after 
service, the factual statements ... to be deemed admitted upon failure of a party to 
respond to the request[.]" A proper RF A will request admissions of fact, as opposed to 
statements of opinion or law. Rust Manufacturing, Inc., ASBCA No. 27511, 84-3 
BCA 117,518 at 87,234. Absent good cause and a motion to extend the discovery 
_, deadline, a movant generally must serve RF As at least 45 days prior to the dose of 
discovery. See, e.g., Alaska Comm. Action on Toxics v. Aurora Energy Services, LLC, 
2012 WL 12537417 at *3 n.36 (D. Alaska April 4,2012) (unreported decision) 
(internal citations omitted) ( compiling cases requiring a party serving discovery to 
give the responding party sufficient time to respond prior to the close of discovery). 
· Moreover, a movant must establish prejudice from any late RF A responses. Morris 
Guralnick Assoc., Inc., ASBCA No. 41888, 91-2 BCA 123,859 at 119,548; WH 
Moseley Co., ASBCA No. 28604, 88-1BCA120,506 at 103,674. 
Here, appellant served its RF As less than 45 days prior to the close of 
discovery, without good cause or seeking an extension (SOF 130). Moreover, many 
of the RF As requested statements of opinion or law (id.). Nor has appellant shown 
any prejudice from the government's late responses (id). Therefore, we deny 
appellant's third motion in limine, and permit the government's late RF A responses. 
D. Appellant's Fourth Motion in Limine (Judicial Notice) 
We take judicial notice of some - but not all - of the purported facts offered by 
appellant. We may take judicial notice of "a fact that is not subject to reasonable 
dispute because it (1) is generally known within the trial court's territorial jurisdiction; 
or (2) can be accurately and readily determined from sources whose accuracy cannot · 
reasonably be questioned." Fed. R. Evid. 20l(b). 7 Here, we decline to take judicial 
notice of the purported facts that "NATO supplies blocked in June, July and 
September 2010," and "visit ofNATO personnel to Torkham boarder, which closed 
7 While not binding on us, we may look to the Federal Rules of Evidence for guidance. 
ERKA Constr. Co., LTD, ASBCA Nos. 57618, 58515, 16-1BCA136,301 
at 177,023. 
10 

from October 26, 2010 through October 31, 201 O" because those purported facts are 
vague, not generally known, and not accurately and readily determined from a source 
provided by appellant whose accuracy cannot be questioned (app. combined motions 
at 4). However, we take judicial notice of the facts that Osama bin Laden died in 
April 2011, a President of Afghanistan was assassinated in September 2011, and 
Pakistan closed the border in November 2011, following a NATO air strike, because 
the government does not object to us taking judicial notice of those facts, other than 
based upon their relevance. 
II Summary Judgment Motions 
A. Standard of Review 
Summary judgment is appropriate only if there is no genuine issue as to any 
material fact, and the moving party is entitled to judgment as a matter of law. Celotex 
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A material fact is one that may affect 
the outcome of the decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 
(1986). There is a "genuine" dispute as to such a fact "if the evidence is such that a 
reasonable [fact-finder] could return a verdict for the nonmoving party." Id. 
B. Appellant's Motion for Summary Judgment on the GovermrJent's Claims 
Appellant is not entitled to summary judgment on the government's claims. 
Appellant argues that, if we grant its first three motions in limine, then that would 
leave no genuine issues of material fact, and it would be entitled to judgment as a, 
matter oflaw on the government's claims (app. combined motions at 5). However, as 
discussed above, we deny appellant's first three motions in limine. Therefore, we also 
deny appellant's motion for summary judgment on the government's claims. 
C. Appellant's Motion for Summary Judgment on Its Claims 
Nor is appellant entitled to summary judgment on its claims. Appellant first 
argues that, if we deem the RF As admitted pursuant to its third motion in limine, then 
those RF A admissions would leave no genuine issue of material fact, and appellant 
would be entitled to judgment as a matter of law on its claim (app. combined motions 
at 5-6). However, as discussed above, we do not deem that the government admitted 
the RFAs. Therefore, we deny appellant's-motion for summary judgment on its claims 
based upon the deemed RF A admissions. 
Second, appellant argues that it was impossible to perform the 0085 Contract 
within the period of performance (app. combined motions at 5-6). We do not possess 
jurisdiction over that claim: The Board does not possess jurisdiction to entertain a 
claim if it is a new claim that appellant did not present to the CO. Monica Walker, 
11 

ASBCA No. 60436, 16-1BCA136,452 at 177,657 (internal citations omitted). While 
an appellant may introduce on appeal additional facts that do not alter the nature of the 
original claim, its appeal must be based upon a common or related set of operative 
facts to those presented to the CO. Scott Timber Co. v. United States, 333 F.3d 1358, 
1365 (Fed. Cir. 2003); Trepte Const. Co., Inc., ASBCA No. 38555, 90-1 BCA 
122,595 at 113,385-86. A claim is new when it "present[s] a materially different 
factual or legal theory" of relief. Lee's Ford Dock, Inc. v. Secretary of the Army, 865 
F.3d 1361, 1369 (Fed. Cir. 2017) quotingK-ConBldg. Sys., Inc. v. United States, 778 
F.3d 1000, 1006 (Fed. Cir. 2015)). "Materially different claims 'will necessitate a 
focus on a different or unrelated set of operative facts."' Id. (quoting Placeway 
Constr. Comp. v. United States, 920 F.2d 903, 907 (Fed. Cir. 1990)). 
Appellant's claim did not set forth operative facts supporting a claim for 
impossibility of performance (SOF 1 19). Therefore, we do not possess jurisdiction 
over appellant's impossibility claim. Lee's Ford Dock, 865 F.3d at 1369. 
D. The Government's Motion for Summary Judgment on Appellant's Claims 
The government's motion for summary judgment is denied on appellant's claim 
for an equitable adjustment for government caused delay, but granted on appellant's 
claim for an equitable adjustment for non-government caused delays. Under 
FAR 52.242-14, a contractor is entitled to an equitable adjustment when the 
governm~nt constructively suspends work by delaying work for an unreasonable 
amount of time. CATH-dr/Balti Joint Venture, ASBCA Nos. 53581, 54239, 05-2 BCA 
133,046 at 163,793 (citing P.R. Burke Corp. v. United States, 277 F.3d 1346, 1359 
(Fed. Cir. 2002)); see also E. V Lane Corp., ASBCA No. 9741, et al. 65-2 BCA 
15,076, at 23,884-88. However, a contractor is not entitled to an equitable adjustment 
for delays with other causes besides the government's conduct or inaction. Sauer Inc. 
v. Danzig, 224 F.3d 1340, 1348 (Fed. Cir. 2000); E. V Lane, 65-2 BCA 15,076, 
at 23,892-95. 
Here, as discussed in greater detail below, the government is not entitled to 
judgment as a matter of law on appellant's claims for an equitable adjustment for 
purported delays caused by the government's late issuance of Diplomatic Notes and 
providing site-access to disruptive entities because there are genuine issues of materi_al 
fact as to whether those constitute unreasonable government caused delays. However, 
the government is entitled to judgment as a matter of law on appellant's claims for an 
equitable adjustment for purported delays caused by Afghanistan's slow tax exemption 
and customs processing, security and political circumstances, and the weather because 
there is no genuine issue of material fact suggesting that those constitute government 
caused delays. 
12 

i. Claims Based Upon Government Caused Delays 
The government is not entitled to judgment as a matter oflaw on appellant's 
claims for an equitable adjustment for purported delays caused by the government's 
late issuance of Diplomatic Notes and providing site-access to disruptive entities 
because there are genuine issues of material fact as to whether those constitute 
unreasonable government caused delay. Regarding the Diplomatic Notes, there are 
genuine issues of material fact as to how long it took the government to issue each 
Diplomatic Note, and whether that length of time was unreasonable in each instance 
(SOF 1 10). Regarding the provision of site-access to disruptive entities, there are 
genuine issues of material facts as to whether the government unreasonably required 
appellant to provide access to disruptive entities, whether that caused delay, and 
whether those delays are attributable to the government (SOF 1 12). 
In response, the government first argues that 0085 contract clauses 
FAR 52.229-6 and DF ARS 252.229-7001 do not create a right to payment for any 
costs incurred as a result of tax exemption processing, and instead limit appellant to a 
refund of any taxes it paid (gov't summ. judg. mot. at 14-15). However, appellant is 
not bringing this claim for a breach of FAR 52.229-6 or DF ARS 252.229-7001. 
Rather, it is claiming an equitable adjustment for delays. Appellant is entitled to an 
equitable adjustment for costs incurred as a result of any unreasonable government 
caused delays in tax exemption processing under a constructive suspension theory. 
CATH-dr/Balti Joint Venture, 05-2 BCA 133,046 at 163,793. · 
Second, the government argues that any delays did not cause the demurrage, 
detention, replacement rental equipment, and increased overhead costs for which 
appellant seeks an equitable adjustment because appellant could have avoided those 
costs by paying the taxes, and seeking reimbursement from the government (gov't­
summ. judg. mot. at 16-17). However, FAR 52.229-6 required appellant to make all 
reasonable efforts to obtain tax exemptions before the government would reimburse 
appellant (SOF 1 3 ). It may be inferred that it was reasonable for appellant to wait for 
the government to issue Diplomatic Notes, and thus that the government would not 
have reimbursed appellant if it had paid the taxes instead of waiting for the Diplomatic 
Notes. 
Third, the government argues that FAR 52.247-34 purportedly prohibited the 
payment of demurrage and detention costs (gov't summ. judg. mot. at 17). However, 
FAR 52.247-34 provided that "the Government shall not be liable for any delivery, 
storage, demurrage, accessorial, or other charges involved before the actual delivery ... 
of the supplies to the destination, unless such charges are caused by an act or order of 
the Government acting in its contractual capacity" (SOF 1 4) ( emphasis added). Under 
the emphasized exception, the government was liable for demurrage and detention costs 
13 

incurred as a result of delays caused by the government acting in its contractual 
capacity (id.). 
Fourth, the government argues that appellant is not entitled to an equitable 
adjustment for any delays caused by the Embassy because its actions in issuing 
Diplomatic Notes were 'sovereign acts (gov't summ. judg. mot. at 18). Under the 
Sovereign Acts Doctrine, the government is not liable for delays caused by the 
government's public and general acts as a sovereign, as opposed to its acts as a 
contracting party. Conner Bros. Constr. Co., Inc. v. Green, 550 F.3d 1368, 1372-73 
(Fed. Cir. 2008). An act is a public and general sovereign act if it is general and 
applies to all persons (id.). Here, the evidence suggesting that the purpose of the 
Diplomatic Notes was to allow appellant to seek a tax exemption on goods to be used 
exclusively to perform of the 0085 Contract for the government raises a genuine issue 
of material fact as to whether the Embassy was performing a public and general act 
applicable to all persons (SOF i19). Therefore, the government is not entitled to 
summary judgment on its sovereign acts affirmative defense. 
Finally, the government argues that it is entitled to judgment as a matter of law 
because appellant presents no CPM analysis (gov't summ. jridg. mot. at 22-23). In 
order to recover for a delay, an appellant must establish- usually through the CPM­
that the government caused delay delayed the ultimate project completion, and that 
there was no concurrent delay. Law v. United States, 195 Ct. Cl. 370, 384-86 (1971); 
Safety Training Sys., Inc., ASBCA No.s. 57095, 57166, 14-1BCAi135,509 at 174,055 
(quoting American Ordinance, LLC, ASBCA No. 54718, 10-1BCAi134,386 
at 169,795); Galaxy Builders, Inc., ASBCA Nos. 50018, 50136, 00-2 BCA i131,040 
at 153,282. Here, Mr. Nassar's declares that appellant used CPM schedules 
throughout the project, that the paperwork and subsequent issues went to the critical 
path of the project, that the overall project delay was due to governnient caused critical 
path delays, and that there was no concurrent delay. (SOF il 15) That declaration 
raises genuine issues of material fact as to whether the government delayed the overall 
project, and whether there was concurrent delay. The government replies that a 
fact-finder could not rely upon Mr. Nassar because appellant has not designated him as 
an expert (gov't summ. judg. reply at 5). However, the governm~nt does not cite any 
authority requiring appellant to use a CPM expert (id.; see also Cibinic and Nash, 
ADMINISTRATION OF GOVERNMENT CONTRACTS 541 (5th ed. 2016)). 
As a result, the government has not shown that it is entitled to summary 
judgment on appellant's claims for an equitable adjustment for delays caused by the 
government's late issuance of Diplomatic Notes and providing site-access to disruptive 
entities. 
14 

ii. Claims Based Upon Non-Government Caused Delays 
The government is entitled to judgment as a matter oflaw on appellant's claims 
for an equitable adjustment for purported delays caused by Afghanistan's slow tax 
exemption and customs processing, security and political circumstances, and the 
weather because there are no genuine issues of material fact suggesting that the 
government caused those delays (SOF 1110-15). It "is well s.ettled that the U.S. 
government is not liable for delays caused by foreign governments." Contrak 
International, Inc., ASBCA No. 59917, 16-1BCA136,532 at 177,954,.55. Moreover, 
the 0085 Contract expressly provided that appellant was responsible for customs and 
security (SOF 115, 7). Also, there is no genuine issue at material fact suggesting that 
the government caused the security and political circumstances (SOF 113). Finally, 
while authorizing the CO to allow additional tinie for severe weather delays, the 0085 
Contract did not indicate that appellant was entitled to compensation for any weather 
delays (SOF 16f 
Appellant attempts to shift the cost of Afghanistan's customs delays onto the 
government by arguing that, while the government provided assistance in obtaining 
approvals from Afghanistan, that assistance was "ineffective," in violation of the SOP 
(app. summ. judg. resp. at 10, 14). However, the SOP only required the government to 
provide assistance. It did not guarantee that that assistance would be effective. 
(SOF 19) On the contrary, the 0085 Contract expressly stated that the Corps "neither 
controls nor is responsible for any such customs clearance procedures" (SOF 1 7). 
In fact, an examination of the only specific instance cited by appellant - namely 
the transit mixers - confirms that the government took reasonable steps to provide 
assistance, and that appellant's real complaint is that the government was not effective 
in persuading Afghanistan to act quicker (app. summ. judg. resp. at 15). In that 
instance, the Corps immediately responded to a request from appellant for a letter from 
the DOS by requesting such a letter (SOF 1 11 ). Within a matter of days, the 
Consulate responded that the cause of the delay was the shipping agent (id.). Indeed, 
appellant does not complain that the government's conduct was unreasonable, but 
rather that it took Afghanistan about two months to allow the mixers into Afghanistan 
(app. summjudg. resp. at 15). However, nowhere in the SOP did the government 
guarantee that Afghanistan would act promptly in response to the government's 
reasonable efforts to assist appellant (SOF 1 9). Thus, appellant cannot use the 
government's promise to assist appellant to shift responsibility for Afghanistan's 
customs delay onto the government. 
Appellant also attempts to shift the costs of weather delays onto the government 
by arguing that government caused delays pushed performance into a period of severe 
weather (app. summ. judg. resp: at 3). A contractor is entitled to an additional 
equitable adjustment when a government delay pushes a contractor's performance into 
15 

a period of seasonal adverse weather-such as a rainy season-but a contractor is not 
entitled to such an adjustment when the government's delay pushes the contractor's 
performance into a period of unusual adverse weather because the additional weather 
delay is not reasonably foreseeable in that case. DTC Engineers & Constructors, LLC, 
ASBCA No. 57614, 12-1 BCA, 34,967 at 171,898; Charles G. Williams Const., Inc., 
ASBCA No. 42592, 92-1 BCA, 24,635 at 122,930. Here, there is no genuine issue of 
material fact suggesting that purported government-caused delays pushed performance 
into a period of seasonal adverse weather. Rather, appellant alleges that government 
caused delays pushed performance into a period of "unusually severe weather" and 
"record-breaking rainfall" (SOP, 14). Therefore, the government is entitled to 
judgment as a matter oflaw on appellant's claim for an additional equitable 
adjustment due to weather delays. Charles G. Williams Const., 92-1 BCA, 24,635 
at 122,930. 
As a result, the government is entitled to summary judgment on appellant's 
claims for an equitable adjustment for purported delays caused by Afghanistan's slow 
tax exemption and customs processing, security and political circumstances, and the 
weather. 
CONCLUSION 
Appellant's four motions in limine are denied, except for a portion of the fourth 
motion in limine. We take judicial notice of the facts that Osama bin Laden died in 
April 2011, ·a President of Afghanistan was assassinated in September 2011, and 
Pakistan closed the border in November 2011, following a NATO air strike. Further, 
we permit the government's late RF A. responses. 
Appellant's motions for summary judgment on its claims and the government's 
claims are denied. The government's motion for summary judgment on appellant's 
claims for an equitable adjustment for purported delays caused by the government's 
late issuance of Diplomatic Notes and providing site-access to disruptive entities is 
denied. The government's motion for summary judgment on appellant's claims for an 
equitable adjustment for purported delays caused by Afghanistan's slow tax exemption 
and customs processing, security and political circumstances, and the weather is 
granted. We strike the portion of the complaint related to those claims. 
16 

An order addressing further proceedings in these appeals will follow. 
Date: August 1, 2019 
I concur 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
MICHAEL N. O'CONNELL 
Administrative Judge 
Acting Vice Chairman 
Armed Services Board 
of Contract Appeals 
. I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA Nos. 58451, 59465, 59701, 
Appeals of Nassar Group International, rendered in conformance with the Board's 
Charter. 
Dated: 
17 
PAULLAK. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals