Contrack International, Inc.
Docket: ASBCA 59549, ASBCA 59733
Decision date: 2016-10-19

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
Contrack International, Inc. ) 
) 
Under Contract No. W5J9LE-12-C-0017 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 59917 
Dirk Haire, Esq. 
Jessica Haire, Esq. 
Fox Rothschild LLP 
Washington, DC 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
Pietro 0. Mistretta, Esq. 
Nancy L. Pell, Esq. 
Engineer Trial Attorneys 
U.S. Army Engineer District, Middle East 
Winchester, VA 
OPINION BY ADMINISTRATIVE JUDGE O'CONNELL 
ON APPELLANT'S MOTION FOR SUMMARY JUDGMENT 
This appeal 
arises out of a building construction contract in Afghanistan. 
The parties agree that appellant, Contrack International, Inc. (Contrack) suffered a 
52-day delay because a large number of vehicles owned by the Afghan National Army 
(ANA) occupied a portion of the work area. The contracting officer granted appellant 
52 additional days. The only issue before us is whether appellant is also entitled to 
compensation, which it seeks in the principal amount of$2,148,314.68. We deny 
appellant's motion for summary judgment. 1 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
The following facts are undisputed unless stated otherwise. 
1. On 6 January 2012, the U.S. Army Corps of Engineers, Afghanistan Engineer 
District 
South, awarded Contrack a contract in the amount of $62,966, 776 for the design 
and construction of the "Afghanistan National Army (ANA) 2/205 RCC/MP/Transient 
and Base Additions at Qalat facilities" for the ANA in Zabul Province, Afghanistan 
(app. mot., undisputed facts (AUF) ii 1; R4, tab 3 at 4, tab 6 at 4-8). The contract required 
1 This appeal has been consolidated with ASBCA Nos. 59549, 59733 and 59754. The 
pending motion concerns ASBCA No. 59917 only. 

appellant to complete performance within 540 days (AUF ,, 3-4; R4, tab 6 at 35). It also 
incorporated FAR 52.236-3, SITE INVESTIGATION AND CONDITIONS AFFECTfNG THE 
WORK (APR 1984) (R4, tab 6 at 9). 
2. The contract required appellant to perform work in or around existing facilities. 
The contract included section 01060, Special Clauses. This 
section included the 
following clause: 
1.11 SCHEDULING OF WORK IN EXISTING 
FACILITIES 
As soon as practicable, but in any event not later than thirty 
(30) calendar days after award of this contract, the Contractor 
shall meet in conference with the Contracting Officer, or his 
duly authorized representatives, to discuss and develop 
mutual understanding relative to the scheduling of work in 
and access to the existing facilities where work has to be 
performed under this contract, so that the Contractor's 
proposed construction schedule is coordinated with the 
operating and security requirements of the installation. 
(R4, tab 3 at 110, tab 6 at 3) 
3. Although the exact nature of the facilities on site at the time of contract 
execution is not clear, the solicitation contained numerous references to existing facilities. 
For example, in a section governing unexploded ordinance, the solicitation stated, "The 
existing site has had numerous construction projects including underground utilities and 
foundations etc., and has been occupied and under security for an extended period of 
time" (R4, tab 3 at 6). It is not clear to what extent the ANA controlled these facilities 
and to what extent American/coalition forces controlled them. 
4. During the course of the project, Contrack experienced a 52-day delay because 
vehicles on the project site owned by the ANA were not removed in a timely manner. 
Specifically, there were 200 to 300 abandoned and inoperable vehicles, including 
passenger cars and tanks, CONEX storage containers, and garbage. The government 
referred to this area as the "boneyard." (Gov't resp. at 4, ,, 1-2) 
5. Prior to award, the government conducted a site visit on 21November2011 
(gov't resp. at 5,, 8). The government asserts in its brief that the vehicles were visible 
on the site visit (gov't resp. at 10). Contrack did not dispute this in its reply but contends 
it is "irrelevant" (app. reply br. at 4 ). Accordingly, it is undisputed that the vehicles were 
visible during the site visit. 
2 

6. As a result of the delay, the contracting officer issued Modification No. P00006, 
which extended the performance period by 52 days but provided no additional 
compensation (AUF ,, 11-12; R4, tab 114). 
7. There is a material dispute as to whether the U.S. Government had the authority 
to move the vehicles from the boneyard. The government contends through the 
declaration of its lead project engineer that it lacked not only the authority, but also the 
equipment and manpower to move the vehicles (Williams decl. ,, 9-10). The documents 
cited by appellant fail to demonstrate that the government had the authority, or had 
promised explicitly in the contract, to move the vehicles (AUF, 8). 
8. The parties agree that the government had the responsibility to facilitate or 
coordinate movement of the vehicles (AUF, 7; gov't resp. at 5,, 7, at 7, 9). However, 
there is a material dispute as to whether the government made appropriate attempts to 
facilitate movement of the vehicles. 
9. Appellant cites various documents in support of its assertion that the 
government failed to make enough effort to facilitate the movement, including a 22 April 
2013 email from a U.S. Army major to the lead project engineer that reads in part: 
(R4, tab 170) 
2/205 has put in a request through Corps for support. Corps 
has not place [sic] much emphasis on the move. 
While I acknowledge that this is a hot issue for many of those 
involved, I am tracking that this is not a hot issue on the ANA 
BDE or ANA Corps either. If it was, they would have made 
the BDE move by now. 
10. Appellant reads the word "Corps" in this email to mean the U.S. Army Corps 
of Engineers (USACE). Thus, to appellant the email states that, despite a request, 
USACE had not placed much emphasis 'on moving the vehicles because it was not a hot 
issue for USACE. (App. br. at 4) 
11. The government counters by asserting that 205 is a reference to a corps in the 
ANA, which includes a second brigade (2/205) (gov't br. at 2-3). The government reads 
the email to mean that the 205 Corps of the ANA had not placed much emphasis on the 
move and that it was not a hot issue for the ANA at either the Corps or brigade level. We 
find that the government's interpretation is more than plausible based on the language of 
the email ("While I acknowledge that this is a hot issue for many of those involved,. .. this 
is not a hot issue on the ANA BDE or ANA Corps"). 
3 

12. There are several other documents in the record that counter appellant's assertion 
that the government failed to facilitate movement of the vehicles. To the contrary, these 
documents indicate that both parties recognized that the ANA had to move the vehicles and 
that they repeatedly requested that the ANA do so (R4, tab 110 at 2, tab 112 at 2, tab 156 at 
2, tab 157 at 4, tab 158 at 2, tabs 161, 162 at 4, tab 164 at 1, tab 167 at 5, tabs 168, 177). 
Accordingly, there is a material dispute of fact and this issue must be resolved at a hearing 
13. Contrack submitted a certified claim on 6 October 2014 seeking $2, 148,314.68 
(R4, tab 107). It does not assert in the claim that it had to move the vehicles or pay for their 
movement. Rather, the damages in the claim consist primarily of extended job site overhead 
($1,674,905.00), along with insurance, attorney/consultant fees, overhead, and profit (id. at 6). 
DECISION 
Standard of Review 
Pursuant to Board Rule 7(c)(2), we look to Rule 56 of the Federal Rules 
of Civil Procedure for guidance in deciding motions for summary judgment. Under 
FED. R. CIV. P. 56(a), the Board may grant summary judgment ifthere is no genuine 
dispute as to any material fact. In considering such a motion, the evidence of the 
nonmovant is to be believed, and all justifiable inferences are to be drawn in its favor. 
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 
Appellant Has Failed to Carry Its Burden 
In its brief, Contrack raises the following theories: 1) the government breached its 
duty to cooperate and not hinder its (Contrack's) performance by, among other things, 
failing to cooperate in the relocation of the vehicles (app. br. at 5-8); 2) that relocation of 
the vehicles was solely in the hands of USA CE and that it is therefore entitled to 
compensation for the delay (id. at 8-10); and 3) the government impliedly warranted access 
to the site (id. at 10-12). Because we have already rejected Contrack's assertion that there 
are undisputed facts demonstrating that the government either had the authority to move 
the vehicles or failed 
to facilitate ANA movement of the vehicles, we deny its motion with 
respect to the first two theories. However, we will discuss the warranty theory. 
We start with the contract language. As we stated (SOF ~ 2), the contract provided 
that appellant and the contracting officer would meet within 30 days of award "to discuss 
and develop mutual understanding relative to the scheduling of work in and access to the 
existing facilities where 
work has to be performed ... so that the Contractor's proposed 
construction schedule is coordinated with the operating and security requirements of the 
installation." It is somewhat difficult to interpret this clause because, as we observed 
above, we do not know the precise extent of the existing facilities, nor do we know who 
controlled them. The government has made non-conclusory allegations that the ANA 
4 

exerted sufficient control to populate the site with inoperable vehicles (visible at the time 
of the site visit) and had the final say on moving them. The Rule 4 documents cited by 
the parties also speak of an "Afghan army base commander" who met with USA CE and 
Contrack to discuss the movement of the vehicles (R4, tab 110 at 2). This suggests that 
the ANA exerted some measure of authority at the site and that part of the coordination 
referred to in the contract would be with the ANA. Accordingly, we do not read this 
clause as a representation by the government that it enjoyed full control of the site or that 
it had plenary authority to move Afghan equipment. 
Accordingly, we must decide whether the government or Contrack should bear the 
cost of the ANA's failure to move vehicles off the project site. As such, it is a question 
of third-party delay. The law has not been favorable to contractors making such claims.2 
Gilbane Building Co. v. United States, 333 F.2d 867 (Ct. Cl. 1964) is a notable 
case in this line. In this case, the government represented in the specifications that work 
being performed on the project site would be completed and ready for the plaintiff on 
22 November 1954. The prior contractor suffered weather delays, however, and the 
plaintiff could not begin work until the following spring. Id. at 868-69. 
The Court of Claims held that the language stating that the site would be ready by 
22 November 1954 did not create a warranty that the site would be ready by that date. 
Rather, the court held that "it is not within the realm of normal expectation that the 
Government would voluntarily stand as a guarantor of the performance of his contract 
by another contractor within the specified time." Gilbane, 333 F.2d at 869 (citing 
H.E. Crook Co. v. United States, 270 U.S. 4 (1926)). The court looked for express 
language in the contract warranting the availability of the site. Finding none, the court 
held that the plaintiff was not entitled to recover. Id. at 870. 
Similarly, in Oman-Fischbach International (JV) v. Pirie, 276 F.3d 1380 
(Fed. Cir. 2002), the contract required appellant to haul debris from its construction work 
to one of three disposal sites indicated in the contract. (The project was at a base in the 
Azores controlled by the Portuguese Armed Forces. Oman-Fischbach, 276 F.3d at 1385). 
Nearly two years after award of the contract, one of the disposal sites reached full 
capacity. When appellant attempted to use one of the other sites, it found that the 
Portuguese Armed Forces had locked the access gate, which ultimately required 
appellant to transport the waste using a route around the base, resulting in increased 
2 One commentator has advised contractors contemplating such claims that "The cases 
are stacked so heavily against contractors that the odds of winning are minuscule. 
A better financial decision might be to go to the local track and put the money on a 
high-odds horse." RALPH C. NASH, Recovery for Government Promises that a 
Third Party Will Perform: The Most Difficult Claim, 22 No. 11, THE NASH & 
CIBINIC REP.~ 69 (Nov. 2008). 
5 

costs. Id. at 1382. Oman-Fischbach appealed to the Board, which held a merits hearing 
and then denied the appeal. Oman-Fischbach International, a Joint Venture, ASBCA 
No. 44195, 00-2 BCA ~ 31,022 at 153,216. 
The Federal Circuit affirmed our decision. The court of appeals held that to be 
successful Oman-Fischbach had to establish that the Navy provided a warranty either 
explicitly or implicitly in its contract by showing that: "( 1) the Government assured the 
plaintiff of the existence ofa fact, (2) the Government intended that plaintiff be relieved 
of the duty to ascertain the existence of the fact for itself, and (3) the Government's 
assurance of that fact proved untrue." Oman-Fischbach, 276 F.3d at 1384 (quoting 
Kolar, Inc. v. United States, 650 F.2d 256, 258 (1981)). The court of appeals examined 
various clauses in the contract, including the Site Investigation and Conditions Affecting 
the Work clause that is also in the contract at issue in this appeal (SOF ~ 1). The court of 
appeals held that this clause made it clear that it was the responsibility of the contractor to 
determine the availability of the roads. Oman-Fischbach, 276 F.3d at 1384-85. 
The Federal Circuit also rejected appellant's implied warranty of access theory. It 
observed that when it comes to third-party delays, it is "settled that absent fault or 
negligence or an unqualified warranty on the part of its representatives, the Government 
is not liable for damages resulting from the action of third parties." Oman-Fischbach, 
276 F.3d at 1385 (quoting Dale Constr. Co. v. United States, 168 Ct. Cl. 692, 698 
( 1964) ). Thus, the court of appeals held that "[ u ]nless the parties in unmistakable terms 
agreed to shift the risk of increased costs due to acts by the Portuguese military, no 
liability 
on the part of the Navy attaches from such acts." Id. Because appellant failed to 
identify any such language, the Federal Circuit affirmed our decision. 
Earlier this year, the Federal Circuit issued its decision in Zafer Taahhut Insaat ve 
Ticaret A.S. v. United States, No. 2015-5083, 2016 WL 4375654 (Fed. Cir. Aug 17, 2016), in 
which the plaintiff encountered a different sort of third-party delay. In that case a contractor 
constructing a facility in Afghanistan experienced a delay in the delivery of materials after 
Pakistan 
closed its border with Afghanistan. Zafer, 2016 WL 43 7 5654, at * 1. Zafer is 
different in some respects than this appeal in that: 1) it involved a delay at the border, not at 
the project site; 2) the contractor never asked for a specific number of days in extended time; 
and 3) the opinion of the court of appeals discusses some theories not before the Board in the 
present motion. Nevertheless, it contains a holding significant to the present matter. 
The plaintiff in Zafer contended that the U.S. Government was responsible for the 
border closure because its actions caused Pakistan to close the border and because it 
prolonged negotiations to reopen it. The Federal Circuit rejected these arguments, 
finding it to be undisputed that Pakistan had closed the border. It held that "the 
U.S. Government is not responsible for the sovereign acts of a foreign nation." Zafer, 
2016 WL 4375654, at *1. The government has asked us to come to a similar conclusion 
in this appeal with respect to Afghanistan (gov't br. at 11-12). 
6 

Based on this precedent, we conclude that Contrack is not entitled to judgment as a 
matter of law on its implied warranty theory. The government has raised the defense that the 
delay at issue was caused by the ANA. While we will wait until after the merits hearing to 
make a final determination on this issue, the government's non-conclusory allegations must 
be credited for summary judgment purposes. Thus, for present purposes we conclude that the 
actions, or inaction, of the ANA caused the 52-day delay. Contrack has not identified any 
contract language in which the government expressly warranted that the ANA would remove 
the vehicles from the site. Gilbane and Oman-Fischbach teach that the government cannot be 
held liable for delays of third parties absent unmistakable language to the contrary. Gil bane, 
333 F.2d at 869; Oman-Fischbach, 276 F.3d at 1385. Contrack has not identified any such 
contract language. And to the extent not already clear from Oman-Fischbach, the Federal 
Circuit held in Zafer that the government is not liable for delays caused by foreign 
governments. Zafer, 2016 WL 4375654, at *6. 
Further, as we observed above, the Federal Circuit in Oman-Fischbach rejected the 
claim based in part on the same site investigation clause as in the present contract. 
Applying the Oman-Fischbach analysis to the present matter, we conclude that it was 
Contrack's obligation to ascertain who had responsibility for removing the vehicles and 
how it would be done by the time it needed access to that area. Con track's claim is 
arguably weaker than that of appellant in Oman-Fischbach, because the obstruction in this 
appeal was visible at the time of the site visit in this appeal (SOF ii 4). By contrast, the 
Portuguese Armed 
Forces did not lock the gate in Oman-Fischbach until after the award. 
Oman-Fischbach, 00-2 BCA ii 31,022 at 153,214. Thus, Contrack was on notice of this 
potential problem at the time of contract execution and accepted the risk that the ANA 
would not provide access in a timely manner, just as appellant in Oman-Fischbach accepted 
the risk that the Portuguese Armed Forces would restrict access at some time in the future. 
Accordingly, there is no basis on which we could 
grant Contrack summary 
judgment for delays caused by the ANA. 
The Cases Cited by Appellant are Distinguishable 
The cases cited by Contrack do not change our opinion. It relies primarily on D&L 
Construction Co. v. United States, 402 F .2d 990 (Ct. Cl. 1968); and Blinderman Construction 
Co. v. United States, 695 F.2d 552 (Fed. Cir. 1982). The Federal Circuit rejected the 
applicability of D&L in Oman-Fischbach because it concluded that the facts in D&L were 
strikingly different. Oman-Fischbach, 276 F.3d at 1384. D&L involved a claim for closing 
access roads. The Court of Claims concluded that the government had warranted access to the 
site based both on contract language and a letter from the contracting officer stating that the 
government would make existing streets available. Oman-Fischbach, 276 F.3d at 1384 (citing 
D&L, 402 F .2d at 999). Contrack has not identified any comparable facts in the present 
matter. 
7 

Blinderman involved a contract to install meters in the apartments of naval personnel 
at a naval base. The contractor experienced delays after it notified occupants that it needed 
to perform work in the apartment, most commonly because the occupant was not at home at 
the scheduled time. The contractor would then notify the Navy project manager but in some 
cases the contractor did not receive access to the apartment until several days had passed. 
Blinderman, 695 F.2d at 555-56. The Federal Circuit held that the contractor discharged its 
contractual obligation when it provided the occupants the notice required by the contract. 
When the contractor failed to gain entry despite notice, the court of appeals held that the 
Navy had an implied obligation to provide access to the apartment. To the extent that the 
Navy failed to provide access within a reasonable time, the contractor was entitled to an 
increase in the cost of performing. Id. at 557. The court remanded the appeal to the Board 
.to determine whether the Navy had unreasonably delayed the contractor. Id. at 559. 
Blinderman does not support Contrack's contention that the government is liable for 
delays caused by the ANA at an ANA facility. To the extent that there were unreasonable 
delays in Blinderman, they occurred as a result of the actions or inactions of Navy personnel 
(namely, the project manager and/or the occupants of the apartments) at Navy apartments on 
a Navy base. In other words, these were not third-party delays and Blinderman does not 
speak to this appeal. 
CONCLUSION 
Appellant's motion for summary judgment is denied. 
Dated: 19 October 2016 
I concur 
MARK N. smMPLER ... -
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
8 
1''1~W'11. ~"--~J, ( 
MICHAEL N. O'CO L 
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. 59917, Appeal of Contrack 
International, Inc., rendered in conformance with the Board's Charter. 
Dated: 
9 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals