Al Arrab Contracting Co. Ltd.
Docket: ASBCA 58493, ASBCA 58877
Decision date: 2015-07-29

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
Al Arrab Contracting Co. Ltd. ) 
) 
Under Contract No. W90BRJ-06-C-0016 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 58493, 58877 
Drew A. Harker, Esq. 
Stuart W. Turner, Esq. 
Lauren J. Schlanger, Esq. 
Arnold & Porter LLP 
Washington, DC 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
Kyle E. Chadwick, Esq. 
MAJ Michael G. Pond, JA 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE PEACOCK ON THE 
GOVERNMENT'S MOTION FOR PARTIAL SUMMARY JUDGMENT 
These appeals involve delays in the performance of a contract for the 
construction of schools in Saudi Arabia. The government has filed a motion for partial 
summary judgment (motion) regarding appellant's entitlement for delay. Subsequent 
filings and briefing related to the motion concluded on 6 July 2015. 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
1. Al Arrab Contracting Co. Ltd. (ACC or appellant), was awarded the 
referenced contract on 21January2006 by the United States Army, Office of the 
Program Manager (Army or government), in the amount of SR 50,000,400 (Saudi 
riyals) for the construction of three school buildings in Riyadh, Saudi Arabia, for the 
Saudi Arabian National Guard (R4, tab 1 at 1-2). 
2. As awarded, the contract required completion of the buildings within 
730 days by 4 February 
2008 (gov't statement of undisputed facts ifif 2, 3). 
3. Construction of the schools was completed on or before 30 June 2012. 
Between 5 May 2008 and 23 July 2012, the parties executed ten bilateral modifications 
and two unilateral modifications extending the contract completion date to 31 August 
2012. None of the bilateral modifications contained an express reservation by 

appellant of rights to file claims for delays and impacts resulting from the extended 
performance of the contract by in excess of four years. Bilateral Modification 
Nos. P00004, P00006, and P00007 increased the contract price by SR 150,000, 
SR 84,619 and SR 351,000, respectively. Bilateral Modification No. P00005 
decreased the contract price by SR 55,000. The remaining modifications made no 
adjustment to the contract price. (R4, tabs 3.4-3.7, 3.18) Each of the pertinent 
modifications contained the following "Release" language: "In consideration of the 
modification agreed to herein, the Contractor hereby releases the Government from 
any and all liability under this contract for further equitable adjustments attributable to 
such facts or circumstances giving rise to this modification" (id.). 
4. In a sworn "Declaration" appended to ACC's reply to the motion, 
appellant's project manager avers that to the extent that the modifications included 
price adjustments they were of "limited scope" and that "on multiple occasions" the 
government "assured [its] representatives that the Government would ... consider" a 
future delay/impact claim from appellant relating to alleged government-caused delays 
(Syed Laique Hashmi (Hashmi) decl. iii! 11, 14, 15). 
5. In particular, the project manager's Declaration avers that he discussed 
ACC's pending delay/impact claim with the government's chief construction engineer 
(CCE) on 20 July 2011. According to ACC's project manager, the CCE encouraged 
appellant to submit the claim and also recommended a claim expert whom ACC 
subsequently retained. (Hashmi decl. iii! 17-19) 
6. Appellant's project manager also states that in February 2012, a "senior" 
government official inquired about the ACC's intent to submit the claim (Hashmi 
decl. il 21 ). 
7. ACC submitted a total cost claim on 1 July 2012 seeking compensation for 
the cumulative effect of the government's conduct, including project delay costs (R4, 
tab 5 at 2-4). 
8. In early September 2012, ACC's project manager avers that he and the CCE 
discussed possible procedures for negotiating a settlement of the claim (Hashmi decl. 
ii 23). 
9. The contracting officer (CO) issued an initial final decision on the claim on 
25 September 2012 and, following a settlement conference, an amended final decision 
on 17 June 2013. Both decisions addressed the merits and substance of ACC's claim. 
Neither final decision alleged that ACC had released its rights to file the claim by 
virtue of its execution of the bilateral modifications noted above. (R4, tab 4B 
at 725-27, tab 6) The amended final decision also evinced the government's 
2 

willingness to revisit the possible settlement of the claim following further 
substantiating documentation stating as follows: 
All contract modifications that extended time only with no 
changes to the requirements were issued to allow the 
contractor time to complete corrective actions required due 
to workmanship deficiencies or were in response to the 
contractor's request for additional time to complete 
specified tasks. In the spirit of supporting the contractor 
through project completion, the Saudi customer and 
ultimate bill payer for the 3 school buildings requested that 
no liquidated damages be assessed. Only 662 days of the 
total contract extension were associated with approved 
contract changes. 
(R4, tab 6, ~ 5) 
10. Both decisions were timely appealed. Prior to the instant motion, there is 
no assertion in the record cited by the Army that appellant released its claim rights as a 
result of its execution of the bilateral modifications. 
DECISION 
The government contends that appellant's rights to pursue the claims involved 
in these appeals were "extinguished" by virtue of its execution without reservation of 
the bilateral modifications noted in our findings. We have carefully considered the 
Army's allegations and the underlying modifications in question but conclude that 
there are genuine issues of material fact that preclude summary judgment. In 
particular, these triable issues pertain to the parties' intentions and course of conduct 
regarding the scope of the modifications and treatment of delay/impact costs resulting 
from the extended performance of the referenced contract for more than four years 
after its originally scheduled completion date. That course of conduct culminated in 
the issuance of two CO final decisions without mention of the Army's release defense 
which was first asserted on appeal. 
3 

The government's motion for partial summary judgment is denied. 
Dated: 29 July 2015 
I concur 
MARK N. STEMPL 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
CKLEFORD 
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 Nos. 58493, 58877, Appeals of 
Al Arrab Contracting Co. Ltd., rendered in conformance with the Board's Charter. 
Dated: 
4 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals