Herai Alpha Construction Consultancy and Engineering Company
Docket: ASBCA 59386, ASBCA 59774
Decision date: 2015-08-17

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of --
Herai Alpha Construction Consultancy 
and Engineering Company 
Under Contract No. W5J9JE-13-C-0028 
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ASBCA Nos. 59386, 59774 
APPEARANCE FOR THE APPELLANT: William J. Spriggs, Esq. 
Spriggs Consulting Services 
Lynchburg, VA 
APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
James D. Stephens, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, Middle East 
Winchester, VA 
OPINION BY ADMINISTRATIVE JUDGE DELMAN 
ON APPELLANT'S MOTION FOR SUMMARY JUDGMENT 
Herai Alpha Construction Consultancy and Engineering Company (appellant) has 
filed a motion for a summary judgment, seeking reversal of a default termination under 
ASBCA No. 59386 and its conversion to a termination for convenience.* The government 
has filed in opposition to summary judgment. ASBCA No. 59774 relates to a deemed 
denial of appellant's affirmative claim for money and time. While appellant's motion 
captions both appeals, the motion does not substantively address appellant's affirmative 
claim. Accordingly, we address the motion solely as it pertains to the default termination 
under ASBCA No. 59386. We have jurisdiction under the Contract Disputes Act, 41 U.S.C. 
§§ 7101-7109. 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
1. On 3 1 May 2013, appellant and the government entered into this contract for 
design and construction of a "Forward Area Arming and Refuel Point," in Kunduz 
Province, Afghanistan (R4, tab 9). The contract incorporated the following standard 
provisions by reference: FAR 52.233-1, DISPUTES (JUL 2002); FAR 52.243-4, CHANGES 
* Appellant's motion was dated 23 March 2015. On 24 March 2015, appellant filed a 
revised motion, adding a paragraph to its "Statement of Undisp"uted Material 
Facts" and attaching a declaration of its project manager. 

(JUN 2007); FAR 52.249-10, DEFAULT (FIXED-PRICE CONSTRUCTION) (APR 1984) (R4, 
tab 9 at 18-19). 
2. The contract contained a 450-day period of performance (R4, tab 9 at 19). On 
24 June 2013, the government issued a notice to proceed to appellant, making the contract 
completion date (CCD) 18 September 2014 (supp. R4, tab 49). On 13 April 2014, the 
parties agreed to a 34-day time extension for weather and security-related delays, making 
the CCD 22 October 2014 (supp. R4, tab 46). 
3. During March-April 2014, the government sent appellant a number ofletters 
expressing concern with appellant's quality control, safety, and design implementation 
(R4, tabs 27, 28, 33). On 8 March 2014, appellant submitted to the government, by email, 
a request for equitable adjustment (REA). The REA sought a 167-day time extension for 
various delays for which appellant believed it was not responsible. (App. supp. R4, 
tab A-12) 
4. The contracting officer (CO) acknowledged receipt of the REA by email on 
10 March 2014. He replied as follows: 
Sir, 
I have received your SL H-0001 requesting 167 days - this 
is surprising to me since we have removed a large portion 
of the contract. You will be receiving a formal reply 
within the next 3 0 days - but based on this new 
information- I'm going to[] recommend to the customer 
that the entire project be terminated. 
(App. supp. R4, tab A-14) According to appellant's project manager, appellant did not 
receive any reply to its REA from the government (app. revised mot., attach., decl. if 6). 
5. The government issued to appellant proposals for work change on 18 February 
2014 (R4, tab 25) and on 22 March 2014 (R4, tab 31 ). Appellant submitted responses to 
these proposals but according to appellant's project manager, the government never 
responded (app. revised mot., attach., decl. if 7). 
6. The government issued a partial clearance for construction on 27 March 2014, 
as per 65% design approval (R4, tab 32). It also issued a partial clearance for 
construction on 24 April 2014, as per 95% design approval (R4, tab 34). 
7. On 30 April 2014, the CO issued a written notice to the appellant, suspending all 
work on the project. No reason was provided for this suspension. (R4, tab 35) 
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8. By letter to appellant dated 11May2014, the CO issued a final decision (COFD) 
terminating the contract for default. Insofar as pertinent, the COFD stated as follows: 
FACTUAL BACKGROUND: 
Currently, this contract is over 300 days into the period of 
performance and according to schedule the project should 
be 64% complete. However, HACC&E has only 
completed 9% of the work to date. HACC&E is still 
missing critical submittals to start construction work. In 
addition, mobilization was slow and the contractor has an 
insufficient workforce to complete the project by the 
required date. 
CONSIDERATION OF THE FACTORS: In 
accordance with FAR 49.402-3 (f), I am required to 
consider the following factors prior to reaching a decision 
as to whether to terminate this contract for default. Below 
is my consideration of each of the factors and my 
termination decision. 
2. The specific failure of the contractor and the excuses 
for the failure: 
i. As outlined above, HACC&E has failed to prosecute the 
work. HACC&C is currently over 300 days into the period 
of performance and has made little progress on this project. 
As noted, the construction as scheduled should be 64% 
complete at this point in the contrac[t]; however, 
HACC&E has only completed 9% of the work. HACC&E 
has been advised by the Government that it is not 
proceeding satisfactorily and has not adequately staffI ed] 
the project. 
Reference Serial letters: C-0006, Letter of Concern dated 
1 March 2014, C0007, Letter of Concern dated 3 March 
2014, al)d COOlO, Corrective Action dated 7 April 2014. 
ii. Given the contractor's lack of responsiveness and 
reliability, I cannot see how HACC(&E] can successfully 
complete this project. 
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(R4, tab 2) 
7. Any other pertinent facts or circumstances: 
Contractor has been slow to mobilize to the project 
site, they were slow to provide a list of government 
furnished material to the point that we were forced into a 
position that would have required the government to 
modify the contract to have the contractor provide the 
material. 
A partial Termination for Convenience (T4C) was 
issued to remove 6 buildings from the contract to ensure 
completion of the project in the required time frame. 
Instead of speeding up construction the contractor came 
back and asked for additional time to complete less work. 
An RFP was issued to change many of the facilities 
to a more austere standard, HV AC units were replaced by 
simple wood burning stoves, and roads were left unpaved, 
yet the contractor again requested more time. 
In conclusion, the acts and omissions constituting 
the default is because of no significant progress on the 
project. 
Based on the above, the undersigned determines 
that a termination for default of this contract is proper and 
in the best interest of the Government. USACE does not 
intend to 
reprocure this project. 
9. The COFD did not expressly address appellant's request for a 167-day time 
extension. According to the CO, he did consider the REA and concluded that it was 
without merit (gov't reply, attach., decl. ir 4). Appellant challenges whether the CO did 
in fact review the matter prior to the default termination decision, and even if he did, 
appellant challenges the CO's conclusion, asserting that appellant was in fact entitled to 
the 167-day time extension, and was thus entitled to a progress review based upon the 
CCD as so extended. 
10. Appellant timely appealed the COFD to this Board, and the appeal was docketed 
as ASBCA No. 59386. 
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11. On 30 October 2014, appellant submitted a certified claim to the CO, seeking an 
equitable adjustment in the amount of $1,722,800 and a time extension in the amount of 
239 days (supp. R4, tab 45). The CO did not issue a decision on this claim. Appellant 
appealed the deemed denial of its claim to the Board, and the appeal was docketed as 
ASBCA No. 59774. The appeals were consolidated. 
DECISION 
It is well settled that in order for a party to obtain 
summary judgment it must show 
that the material facts are undisputed and it is entitled to judgment as a matter of law. 
Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). 
Appellant has not shown that the material facts are undisputed here. We find a 
number of such fact disputes of record, including ( 1) whether the CO' s decision to terminate 
for default was based upon an assessment of appellant's construction progress, taking into 
account any of the 167-day excusable delay asserted by the contractor; and (2) ifthe CO 
made such an assessment prior to his decision, whether such an assessment was correct. 
Given these material fact disputes, summary judgment is not appropriate. 
Appellant's motion for summary judgment is denied. 
Dated: 17 August 2015 
I concur 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
_#_~-/~--'-/,/ y_.;._;:J_~ ---1.'----=~------~ ~ 
MARK N. STEMPL R RICHARD SHACKLEFORD 
Administrative Judge Administrative 
Judge 
Acting Chairman Vice Chairman 
Armed Services Board Armed Services Board 
of Contract Appeals 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 Nos. 59386, 59774, Appeals of 
Herai Alpha Construction Consultancy and Engineering Company, rendered in 
conformance with the Board's Charter. 
Dated: 
6 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals