ASFA International Construction Industry and Trade, Inc.
Docket: ASBCA 57880
Decision date: 2014-09-02

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
ASF A International Construction Industry ) 
and 
Trade, Inc. ) 
) 
Under Contract No. F A5685-05-C-0004 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 57880 
D. Lee Toedter, Esq. 
Attorney at Law & Contract Consultant 
Orange Beach, 
AL 
Col Robert J. Preston II, USAF 
Acting Air Force Chief Trial Attorney 
W. Michael Rose, Esq. 
Senior Trial Attorney 
Gregory A. Harding, Esq. 
Trial Attorney 
OPINION BY ADMINISTRATIVE JUDGE MELNICK ON BOARD 
JURISDICTION AND APPELLANT'S MOTION FOR SUMMARY JUDGMENT 
This appeal arises from ASF A International Construction Industry and Trade, 
Inc.'s (ASFA's or appellant's) timely appeal of a contracting officer's (CO's) final 
decision (COFD) assessing liquidated damages for late completion of the construction 
of three environmental facilities at Incirlik Air Base, a Turkish Air Force installation, 
in Adana, Turkey. ASF A now moves for summary judgment asserting that the 
government improperly assessed liquidated damages because the government waived 
the scheduled completion dates for each facility. The Board raised 
the issue of its 
jurisdiction, sua sponte. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
1. The 39th Air Base Wing of the Department of the Air Force (Air Force or 
government) awarded Contract No. FA5685-05-C-0004 (contract) to ASFA 1 on 
11 May 2005 to complete construction of three partially constructed environmental 
facilities - a hazardous materials storage (HAZMA T) facility, a hazardous waste 
1 The contract was originally awarded to ASF A Insaat Pazarlama (1st R4, tabs 4, 6); 
however, by novation under Modification No. A00002, the contractor's name 
was changed to ASFA International Construction Industry & Trade (1st R4, 
tab 6). 
' 
f 

storage facility (storage), and a pesticide management facility (pesticide)- at Incirlik 
Air Base in Adana, Turkey (1st R4, 2 tab 4 at 2-5, 15-19 of 313). Contract line item 
number (CLIN) 0001 was for the construction of the pesticide facility, CLIN 0002 was 
for the construction of the storage facility, and CLIN 0003 was for the construction of 
the HAZMAT facility (1st R4, tab 4 at 4-5of31). 
2. The contract included the following pertinent Federal Acquisition 
Regulation (FAR) clauses by reference: 52.233-1, DISPUTES (JUL 2002); 52.232-5, 
PAYMENTS UNDER FIXED-PRICE CONSTRUCTION CONTRACTS (SEPT 2002); and 
52.249-10, DEFAULT (FIXED-PRICE CONSTRUCTION) (APR 1984) (1st R4, tab 4 at 
12-13 of 31 ). The contract also included the following pertinent FAR clauses in full 
text: 52.211-10, COMMENCEMENT, PROSECUTION, AND COMPLETION OF WORK 
(APR 1984); and 52.211-12, LIQUIDATED DAMAGES -CONSTRUCTION (SEPT 2000) 
(1st R4, tab 4 at 13-14 of 31 ). 
3. FAR clause 52.232-5, PAYMENTS UNDER FIXED-PRICE CONSTRUCTION 
CONTRACTS (SEPT 2002) provides the following, in part: 
(b) Progress payments. The Government shall 
make progress payments monthly as the work proceeds, or 
at more frequent intervals as determined by the 
Contracting Officer, on estimates of work accomplished 
which meets the standards of quality established under the 
contract, as approved by the Contracting Officer. 
4. Under contract clause FAR 52.211-10, COMMENCEMENT, PROSECUTION, 
AND COMPLETION OF WORK (APR 1984), the storage facility was to be completed no 
later than 131 calendar days from the date of the notice to proceed (NTP); the pesticide 
facility was to be completed no later than 152 calendar days from the date of the NTP; 
2 The government submitted its Rule 4 files in six separate hard copy submittals. The 
first submittal was for ASBCA No. 57773, which is ASFA's related appeal. 
The second submittal was for this appeal. ASBCA No. 57773 and this appeal 
were consolidated (ASBCA No. 57880, Bd. notice of docketing 
<ltd. 13 December 2011). The third, fourth, fifth, and sixth submittals were 
submitted 
for the consolidated appeals. This Opinion only involves matters 
relating to ASBCA No. 57880. Citations to documents in the Rule 4 files in 
this Opinion will be identified by the following: the first submittal will be 
identified as "1st R4," the second submittal as "2nd R4," and so forth. 
3 The government also submitted copies of its six Rule 4 file submittals with "Bates 
numbered" pages on compact discs. The Rule 4 file documents submitted in 
paper copies are not "Bates numbered." For the purposes of this Opinion, page 
number citations in the Rule 4 file are to the "Bates numbered" pages. 
2 

and the HAZMA T facility was to be completed no later than 218 calendar days from 
the date of the NTP (1st R4, tab 4 at 13-14 of 31; gov't opp'n at 11, ~ 15; app. reply at 
7,~15). 
5. The Liquidated Damages clause states the following, in part: 
(a) If the Contractor fails to complete the work within the 
time specified in the contract, the Contractor shall pay 
liquidated damages to the Government in the amount of 
$276.87 for the first day and $255. 72 for each calendar day 
of delay until the work is completed or accepted. The 
above amounts will be assessed separately for each project 
in which the work is delayed until the work is completed or 
accepted (i.e., CLIN 0001, CLIN 0002, CLIN 0003). 
(1st R4, tab 4 at 14 of 31) 
6. By memorandum dated 28 June 2005, the government issued a NTP to 
ASF A to begin performance 
under the contract stating the following, in part: 
1. Pursuant to the terms and conditions of Contract 
Number F A5685-05-C-0004, you are hereby notified to 
proceed with the work. Performance shall commence 
within 10 calendar days after receipt of this notice. This is 
your Notice to Proceed to start actual performance on the 
contract. Entire work required by the contract shall be 
completed not later than 218 calendar days after receipt of 
this Notice to Proceed. 
ASFA acknowledged receipt of the NTP on the same day. (1st R4, tab 14) 
7. After issuance of the NTP, the contract's scheduled completion dates for the 
three facilities were the following: 
3 

Facility Contract 
Completion Date 
Pesticide 27 November 20054 
Storage 6 November 2005 
HAZMAT 1 February 2006 
(Gov't opp'n at 11, ~ 15; app. reply at 7, ~ 15) 
8. ASFA failed to complete construction of the storage and pesticide facilities 
by the contract completion dates (gov't opp'n at 11, ~ 16; app. reply at 7, ~ 16). The 
storage facility was 12 percent complete by the contract completion date. The 
pesticide facility was 21 percent complete by the contract completion date. (Gov't 
opp'n at 15-16, ~~ 30, 31; app. reply at 11, ~~ 30, 31) 
9. By email dated 9 March 2006, CO Cummins, following up on an earlier 
meeting between the parties, stated that "it is at the [CO's] discretion whether or not to 
assess liquidated damages. At this time, I have not made a CO decision whether to 
assess or not assess liquidated damages .... " (Gov't opp'n, CO Cummins decl., 
attach. 1 at 1 of 10) In addition, CO Cummins also attached a spreadsheet for 
informational purposes "so 
[ASFA is] fully aware of the liquidated damages (LD) 
figures I have calculated for each of the above projects at this time as well as my 
methodology for arriving at these LD figures" (id.). The spreadsheet purported to 
project liquidated damages through 31 May 2006 for each facility (id. at 3-9of10). 
10. CO Cummins' 9 March 2006 email also requested letters from ASFA 
communicating the planned end dates for each facility, the number of additional days 
requested to complete construction for each facility, and justification for the requested 
additional days (gov't opp 'n, CO Cummins decl., attach. 1 at 3-9 of 10). 
CO Cummins stated that he would consider the additional days requested by ASF A 
and they may or may not be included in the modification that the parties were 
discussing (id. at 1 of 10). 
11. Between 2006 and 2007, the parties entered into discussions and 
negotiations concerning time extensions, schedules, and other work items during 
ASFA's continued performance (1st R4, tab 21passim;2nd R4, tab 2 passim). 
4 In their briefs, the parties stipulated that the contract completion date for the pesticide 
facility was 26 November 2005. The Board finds that the contract completion 
date for the pesticide facility was 27 November 2005, 152 calendar days from 
the date of the NTP. 
4 

12. By email dated 10 August 2006 with the subject line "RE: DURATION 
CALCULATION REGARDING ALL THREE PROJECTS," CO Moss stated the 
following, in pertinent part: 
It is unfortunate that you haven't produced the required 
information in time for today's meeting. I have to [sic] 
choice but to assume the calculations provided to me by 
CE are correct, as of this point you have no 
counter-information. According to my calculations, the 
total liquidated damages for these projects is now at 
approximately $130,000 (as of 10 Aug 06)[.] 
Because you haven't provided your 
information/documentation, we cannot proceed with 
negotiations. Without the negotiations, the subsequent 
modification can not take place. Also, this will show as a 
continued delay by ASF A, which in tum adds to the 
already accumulating liquidated damages. 
It is in your best interested [sic] to expedite your "delayed 
days" calculation and documentation as soon as possible. 
(App. mot., attach. 2 at 16 of 41) Further correspondence between the parties in 
August and September 2006 included government requests for meetings to discuss 
modification items and liquidated damages (id. at 22-28, 30, 32 of 41 ). By email dated 
28 September 2006, the government stated the following, in pertinent part: "[W]e are 
waiting for the contractor's decision in regards to 
the modification and [liquidated 
damages]" (1st R4, tab 21at163 of269; gov't opp'n at 12, ii 19; app. reply at 8, ii 19). 
13. By letter dated 16 October 2006, 5 ASFA informed the government that it 
would not agree to the modification package and liquidated damages discussed during 
negotiations stating the following, in pertinent part: 
We hereby would like to inform you that ASF A is not 
accepting your proposal which had been done during ref 
a) which is: To perform all the work items included in the 
MOD packages discussed during several meetings up 
today against the [liquidated damages] calculated as per ref 
b) since ASF A is not accepting [liquidated damages] and is 
5 The letter references a 20 September 2006 meeting and a 21 October 2006 email. 
Since the letter is dated 16 October 2006, we conclude that the latter is a typo, 
and the letter is most likely referencing a 21 September 2006 email. 
5 

asking for review of our files and the evaluation of the 
causation of delayed performance and possible equitable 
adjustment for correction of errors and omissions inherited 
with the project from the prior performance effort and 
compensation of additionally [sic] not in original contract 
included work items. 
(1st R4, tab 21, encl. 6 at 169of269) 
14. The parties eventually executed Modification No. P00002, effective 
20 April 2007. The modification 
added CLIN 0005, funding changes to the 
specifications, removing certain work items for the HAZMAT facility, and authorizing 
payment to ASF A for missing government furnished property purchased by ASF A. 
(1st R4, tab 9 at 1-2of7) 
15. Modification No. P00003, effective 17 May 2007, was bilaterally executed 
to extend the period of performance for the HAZMA T facility by 84 calendar days, 
accommodating changes incorporated under Modification No. P00002. The 
modification also included ASFA's reservation of rights language contained in 
Modification No. P00002. (1st R4, tab 10) As a result of this modification, the 
contract completion date for the HAZMA T facility was revised to 26 April 2006. The 
facility was 75 percent complete as of the revised completion date. (Gov't opp'n 
at 16, ~ 32; app. reply at 11, ~ 32) 
16. By memorandum dated 23 November 2011, the CO issued a final decision 
asserting a government claim for liquidated damages in the total amount of 
$279,309.69 for ASFA's late completion of the construction of the three facilities 
under the contract. In his COFD, the CO accepted, as substantially complete, the 
pesticide facility on 30 June 2006, the storage facility on 18 April 2007, and the 
HAZMAT facility on 27 April 2007. Liquidated damages for each facility was 
computed based upon the following: 215 days of liquidated damages for late 
completion of the pesticide facility; 511 days of liquidated damages for the late 
completion of the storage facility; and 366 days of liquidated damages for late 
completion of the HAZMA T facility. Liquidated damages for the storage facility were 
assessed from 23 November 2005 through 18 April 2007. (2nd R4, tab 1) 
17. ASF A timely appealed the 23 November 2011 COFD. 
6 

DECISION 
I. Jurisdiction 
Sua sponte, we directed the parties to address whether the Board has 
jurisdiction to adjudicate this appeal (Bd. corr. ltr. dtd. 6 March 2014). First, we 
sought briefing on whether the government's claim for liquidated damages for late 
completion of the storage facility was untimely under 41 U.S.C. § 7103(a)(4)(A) of the 
Contract Disputes Act (CDA) for being submitted more than six years after claim 
accrual. Second, we sought commentary about whether ASF A met the jurisdictional 
prerequisites of the CDA in asserting a waiver defense to the government's claim for 
liquidated damages in light of M Maropakis Carpentry, Inc. v. United States, 609 F.3d 
1323 (Fed. Cir. 2010). 
A. Whether the Government's Claim for Liquidated Damages for Late 
Completion of the Storage Facility is Time-Barred under the CDA 
For the government's claim to be timely and cognizable under the CDA, the 
claim "shall be submitted within 6 years after the accrual of the claim." 41 U.S.C. 
§ 7103(a)(4)(A). Timely submission of a claim is a prerequisite for the Board to 
exercise jurisdiction under the CDA. Arctic Slope Native Ass 'n v. Sebelius, 583 F.3d 
785, 793 (Fed. Cir. 2009); The Boeing Co., ASBCA No. 57490, 12-1BCAif34,916 
at 171,676. FAR 33.201 defines "Accrual ofa claim," in pertinent part, as "the date 
when all events, that fix the alleged liability of either the Government or the contractor 
and permit assertion of the claim, were known or should have been known." 
As the proponent of its claim for liquidated damages for late completion of the 
storage facility, the government bears the burden of proving the Board's jurisdiction. 
The R.R. Gregory Corp., ASBCA No. 58517, 14-1BCAif35,524 at 174,111. The 
23 November 2011 COFD assessed liquidated damages in the amount corresponding 
to 511 days for the storage facility, from 23 November 2005 to the government's 
alleged substantial completion date of 18 April 2007 (SOF if 16), although the contract 
completion date for the storage facility was 6 November 2005 (SOF ifif 7, 8). The final 
decision did not explain a rationale behind the assessment based upon the 
23 November 2005 date. 
The government admits that its storage facility claim accrued on 7 November 
2005, and we agree (gov't br. on statute of limitations at 2, 8). That is the date when 
the alleged liability for late completion was known or should have been known. As 
such, the government's 23 November 2011 claim for liquidated damages was asserted 
more than six years after the claim accrued. Nevertheless, the government argues that 
the "continuing claim" doctrine permits it to assert its claim from 23 November 2005, 
which falls within the six-year limitation period (id. at 2, 7-8). The government argues 
7 

that each day of delay created a separate and distinct event or wrong with its own 
associated damages. The government cites to our decisions in Gray Personnel, Inc., 
ASBCA No. 54652, 06-2 BCA ~ 33,378; DynCorp International LLC, ASBCA 
No. 56078, 09-2 BCA ~ 34,290; and Fluor Corp., ASBCA No. 57852, 14-1 BCA 
~ 35,472, as support. ASFA counters that the liability became fixed by the single 
event of ASFA's failure to complete performance by the scheduled completion date, 
and 
any subsequent late days were continuing ill effects (app. resp. to gov't br. on 
statute of limitations at 5-6). 
Under the "continuing claim" doctrine, portions of the claim within the 
statutory limitation period can survive although the statute of limitations has lapsed for 
earlier events. Ariadne Financial Servs. Pty. Ltd. v. United States, 133 F.3d 874, 879 
(Fed. Cir. 1998). For the government's claim to be a continuing claim, the claim 
"must be inherently susceptible to being broken down into a series of independent and 
distinct events or wrongs, each having its own associated damages." Furthermore, "a 
claim based upon a single distinct event, which may have continued ill effects later on, 
is not a continuing claim." Gray Personnel, 06-2 BCA ~ 33,378 at 165,476-77 (citing 
Brown Park Estates-Fairfield Development Co. v. United States, 127 F.3d 1449, 1456 
(Fed. Cir. 1997)). 
Gray Personnel involved a personal services requirements contract in which the 
government's potential liability for making constructive changes to the performance 
requirement was not fixed until the issuance of delivery orders. Gray Personnel, 06-2 
BCA ~ 33,378 at 165,476. In DynCorp, the contractor's equitable adjustment claim as 
to the option periods was a continuing claim because the option periods were 
separately awarded by the government, and if the government exercised no additional 
option periods, there would be no claim for those years. DynCorp, 09-2 BCA ~ 34,290 
at 169,407. In Fluor, we denied appellant's motion to dismiss the government's 
claims over CAS non-compliance cost accounting practices as untimely because "the 
government. .. could not know 
at that time, much less submit a CDA claim for, the 
increased cost of those practices to the government work over the next seven years 
until that work was performed, billed, and paid." Fluor, 14-1 BCA ~ 3 5 ,4 72 
at 173,929. In each of these decisions, we found the underlying claims to be 
continuing. 
The government fails to establish how each late day here is an independent, 
distinct event having its own associated damages. ASF A was required to complete 
performance of the construction of the storage facility by 6 November 2005. ASFA's 
failure to deliver by the scheduled date fixed ASFA's liability. The claim accrual date 
was 
7 November 2005. On 
that date, the government incurred "some injury" and 
ASF A was liable for liquidated damages under the clause. Gray Personnel, 06-2 BCA 
~ 33,378 at 165,476. Unlike our previous decisions in Gray Personnel, DynCorp, and 
Fluor, no other performance or contingency was necessary to fix liability. Once 
8 

ASF A failed to meet its obligations, the government had the right to assess liquidated 
damages under the contract. Subsequent days until substantial completion of the 
storage facility were damages accumulating and, therefore, continuing ill effects. See 
Ariadne, 133 F.3d at 879 (no continuing claim where each denial of the use of an asset 
did not rise to a separate cause of action and flowed from the original repudiation by 
the government); Hart v. United States, 910 F.2d 815, 818 (Fed. Cir. 1990) (death of 
widow's husband was single event necessary to fix liability of the government for 
husband's military annuity benefits paid in monthly installments after his death and 
therefore not a continuing claim). It is not necessary for the total costs of the liability 
to be incurred; rather once a party is on notice that it has a potential claim, the statute 
of limitations can start to run. Gray Personnel, 06-2 BCA il 33,378 at 165,476. 
For the reasons discussed above, the government's claim is not a continuing 
claim. Since the claim accrual date was 7 November 2005, and the government 
asserted its claim more than six years after the accrual date, the government's storage 
facility claim is untimely under the CDA, and we lack jurisdiction to adjudicate that 
portion of this appeal. 
B. Whether the Board has Jurisdiction to Entertain ASFA's Affirmative 
Defense of Waiver 
We next determine whether, under Maropakis, ASF A has met the jurisdictional 
prerequisites under the CDA to assert the 
affirmative defense of waiver. In 
Maropakis, the government counterclaimed for liquidated damages against the 
contractor for late performance. The contractor's defense to the government's 
assessment was based on a letter it sent to the CO requesting time extensions. 
Maropakis, 609 F.3d at 1326-27. After determining that the letter was not a valid 
CDA claim, the court also held that the contractor could not defend against the 
government's 
claim based on its request for contract modification because "a 
contractor seeking an adjustment of contract terms must meet the jurisdictional 
requirements and procedural prerequisites of the CDA, whether asserting the claim 
against the government as an affirmative claim or as a defense to a government 
action." Id. at 1330-31 (emphasis added). 
ASF A asserts that the government waived the scheduled completion dates for 
the late completion of the pesticide and HAZMA T facilities. ASF A argues that we 
have jurisdiction because the government submitted a CDA claim against ASF A, and 
ASFA timely appealed to the Board within the CDA's appeal period (app. br. on 
Maropakis at 6). Likewise, the government also agrees that we have jurisdiction to 
hear both the government's claim and ASFA's affirmative defense, because ASFA 
asserted defenses of excusable delay when it submitted a November 2007 equitable 
adjustment claim to the CO which was denied in a 
1 July 2011 COFD (gov't resp. to 
app. br. on Maropakis at 7-8). ASF A has appealed the 1 July 2011 COFD which is 
9 

currently docketed before the Board as ASBCA No. 57773 (Bd. notice of docketing 
dtd. 12 September 2011 ), and consolidated with this appeal (Bd. notice of docketing 
dtd. 13 December 2011). 
We agree that Maropakis did not require ASF A to submit a CDA claim 
contending the government waived its right to liquidated damages before it could 
pursue that defense here. Maropakis requires contractors to submit CDA claims to the 
CO as a prerequisite to their "seeking an adjustment of contract terms," regardless of 
whether the claim is asserted "as an affirmative claim or as a defense to a government 
action." Maropakis, 609 F .3d at 1331; see also ERKA Construction Co., ASBCA 
No. 57618, 12-2 BCA if 35,129 at 172,474 (limiting Maropakis' claim mandate to 
defenses seeking contract modifications). Liquidated damages are simply the damages 
the parties fix to be paid in case of a breach, saving the time and expense of litigation. 
DJ Manufacturing Corp. v. United States, 86 F.3d 1130, 1133 (Fed. Cir. 1996). 
ASFA's defense that the government waived both the completion dates and its right 
to 
collect liquidated damages does not seek an adjustment or modification of the contract 
terms; it simply maintains the government waived rights already granted by the 
contract. Nothing in Maropakis requires the submittal of a CDA claim before such a 
defense can be advanced. Thus, we may entertain ASFA's defense of waiver. 
II. Disposition of ASFA's Motion 
A. Legal Standard 
Summary judgment is properly granted if it is shown that there are no genuine 
issues of material fact and the movant is entitled to judgment as a matter of law. 
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material fact is one which may 
make a difference in the outcome of the case. Anderson v. Liberty Lobby, Inc., 
477 U.S. 242, 248 (1986). All reasonable inferences are drawn in favor of the party 
opposing the motion. Scott v. Harris, 550 U.S. 372, 378 (2007). 
B. Contentions of the Parties 
In its motion, ASF A contends that there are no material facts in dispute and 
ASF A should be entitled to judgment as a matter of law because unusual 
circumstances are present and the government waived the scheduled completion dates 
for each facility under the doctrine enumerated in Devito v. United States, 413 F.2d 
1147 (Ct. Cl. 1969) (app. mot. at 21). To support its contention ofwaiver, ASFA 
asserts that the government failed to mention that ASF A would be subject to a default 
termination or assessment of liquidated damages after the original contract completion 
dates had passed, and the government was required to reestablish new completion 
dates pursuant to the Default clause in the contract. The "substituted" completion 
dates for all three facilities were the dates upon which ASF A completed performance. 
10 

ASF A argues that it incurred additional costs resulting from continued performance 
with the government's knowledge. Lastly, ASFA argues that the assessment of 
liquidated damages was arbitrary and capricious because the government's assessment 
occurred approximately 4Yi years after the government's acceptance of the last 
completed facility. (Id. at 19-22) 
The government opposes the motion, contending that there are material facts in 
dispute, and ASF A has failed to show that the government waived its right to assess 
liquidated damages (gov't opp'n at 20). The government argues that both parties were 
aware of the potential assessment of liquidated damages and points to the 
9 March 2006 email from CO Cummins and subsequent discussions between the 
parties (id. at 23). 
In its reply, ASF A contends that discussions subsequent to the 9 March 2006 
email did not bring closure on the liquidated damages issue and there was no 
indication by the government that it was intending to assess liquidated damages (app. 
reply at 17, 22-23). 
C. Discussion 
ASF A contends that the "waiver" doctrine in Devito is controlling. In Devito, 
the elements required for establishing waiver of the government's right to terminate 
the contract for default are the government's: "(l) failure to terminate within a 
reasonable time after the default under circumstances indicating forbearance, and 
(2) reliance by the contractor on the failure to terminate and continued performance by 
him under the contract, with the Government's knowledge and implied or express 
consent." 413 F.2d at 1154. With fixed delivery dates in the contract which have 
passed, "the inference is created that time is no longer of the essence so long as the 
constructive election not to terminate continues and the contractor proceeds with 
performance." Id. Time does not become of the essence again until establishment of a 
new completion date. Olson Plumbing and Heating Co., ASBCA Nos. 17965, 18411, 
75-1BCAif11,203 at 53,336, ajf'd, 602 F.2d 950 (Ct. Cl. 1979); Brent L. Sellick, 
ASBCA No. 21869, 78-2 BCA if 13,510 at 66,194. 
Both parties acknowledge that Devito, which involved a supply contract, is 
rarely applicable in construction contracts because the contractor will receive payment 
for work completed past the specified completion date, and the government can seek 
liquidated damages for late completion under the relevant clauses. Thus, detrimental 
reliance would be difficult to prove merely from a period of government forbearance 
and continued contractor performance. Olson, 75-1 BCA if 11,203 at 55,336; Sellick, 
78-2 BCA if 13,510 at 66,194-95; Corway, Inc., ASBCA No. 20683, 77-1 BCA 
if 12,357. To the extent Devito has been applied to waive the scheduled completion 
dates for assessing liquidated damages or the right to terminate for default in 
11 

construction cases, its usage is generally limited where "unusual circumstances" were 
found to exist. See Technocratica, ASBCA No. 47992 et al., 06-2 BCA ~ 33,316. 
It is undisputed that ASF A missed the scheduled completion dates, continued 
performance past the scheduled completion dates, and completed construction of all 
three facilities (SOF ~ 16). However, with construction contracts, "[g]overnment 
encouragement to expedite completion during a forbearance period should not be 
interpreted as a disestablishment of the contractually-prescribed completion date 
absent further manifestation by the [g]overnment that it no longer considered that date 
to be enforceable." Sellick, 78-2 BCA ~ 13,510 at 66,195. In determining whether 
"unusual circumstances" exist, the government's failure to mention or assess 
liquidated damages was 
an indicator that time was no longer of the essence in the 
contract, and the scheduled completion dates were no longer enforceable for assessing 
liquidated damages. See Technocratica, 06-2 BCA ~ 33,316 at 165,188; Corway, 77-1 
BCA ~ 12,357 at 59,804 (government never mentioned or assessed liquidated damages 
and showed no urgency in resolving problems); Overhead Electric Co., ASBCA 
No. 25656, 85-2 BCA ~ 18,026 at 90,473; JEM Development Corp., ASBCA 
No. 42872, 92-1BCA~24,709 at 123,339 (during two-week period where contractor 
left the work site, the government did not communicate any intention it was going to 
assess liquidated damages if work was not completed by completion date); D&S 
Roofing Co., ASBCA Nos. 28130, 29109, 85-2 BCA ~ 18,114 at 90,947 (government 
approved substituted schedule without manifesting intent to maintain original 
schedule). 
The record shows at least three instances that suggest the government made 
ASF A aware of the potential assessment of liquidated damages. The 9 March 2006 
email from CO Cummins (SOF ~~ 9, 10), the 10 August 2006 email from CO Moss 
(SOF ~ 12), and other correspondence from the government between August and 
September of 2006 (SOF ~ 12) specifically mention, at a minimum, the possible 
assessment of liquidated damages. Additionally, ASFA's 16 October 2006 letter 
indicates that ASF A was aware of the government's position regarding liquidated 
damages as it informed the government that it would not be accepting liquidated 
damages (SOF ~ 13). This evidence contradicts ASFA's assertion that the government 
did not issue any notices or communications regarding the assessment of liquidated 
damages, and establishes a genuine issue precluding summary judgment. 
Lastly, ASF A argues that the assessment of liquidated damages was arbitrary 
and capricious because the assessment was approximately 4Yi years after the last 
facility was accepted, and after ASFA had filed its appeal under ASBCA No. 57773. 
The burden is on ASFA to prove the CO's assessment was arbitrary and capricious. It 
is presumed the CO acts in good faith. Am-Pro Protective Agency, Inc. v. United 
States, 281 F.3d 1234, 1239 (Fed. Cir. 2002). ASFA's bald accusations that the 
liquidated damages assessment was later than it thinks it should have been do not 
12 

overcome the presumption of good faith. Therefore, we deny ASF A's motion to the 
extent it claims the assessment was arbitrary and capricious. 
CONCLUSION 
The government's claim for liquidated damages for late completion of the 
storage facility is time-barred under the CDA. ASFA's motion for summary judgment 
as to the government's claim for liquidated damages for late completion of the 
pesticide and HAZMA T facilities is denied. 
Dated: 2 September 2014 
I concur 
~~Et1$' 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
~~ 
MARK A. MELNICK 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
RICHARD SHACKLEFORD 
Administrative Judge 
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 No. 57880, Appeal of ASF A 
International Construction Industry and Trade, Inc., rendered in conformance with the 
Board's Charter. 
Dated: 
13 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals