Kandahar Mahali Transit & Forwarding Ltd.
Docket: ASBCA 62319
Decision date: 2020-06-16

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeal of - )  
 )  
Kandahar Mahali Transit & Forwarding Ltd. ) ASBCA No.  62319 
 )   
Under Contract No. W91B4N-11-D-7009 )  
    
APPEARANCES FOR THE APPELLANT: Theodore P. Watson, Esq.  
Wojciech Z. Kornacki, Esq. 
    Watson & Associates, LLC 
  Aurora, CO 
 
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. 
    Army Chief Trial Attorney 
 Daniel B. McConnell, Esq. 
MAJ Sean B. Zehtab, JA 
    Trial Attorneys 
 
OPINION BY ADMINISTRATIVE JUDGE O’CONNELL 
 
 The government has moved to dismiss the complaint of appellant, Kandahar 
Mahali Transit & Forwarding Ltd. (KMT), for failure to state a claim upon which 
relief may be granted.  We deny the motion. 
 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
 
 This appeal involves an August 12, 2011, indefinite-delivery, indefinite-quantity, 
contract for ground transportation of cargo in Afghanistan.  As relevant to the pending 
motion, the work included the movement of “dry cargo” and “heavy cargo,” each with a 
price schedule for numerous different types of trucks.  (R4, tab 1 at 8-11) 
 
 For example, it provided that for a 40-foot flatbed truck transporting dry cargo, 
the contractor would be paid 33,750 Afghani (AFN) per mission unit (MU) in the base 
year (id. at 8).  While the original performance work statement does not appear to be in 
the record, a subsequent version defined an MU as 50 kilometers of travel (R4, tab 36 
at 18). 
 
 The contract required KMT to prepare draft invoices and assemble supporting 
documents.  The parties would then meet on a monthly basis and discuss all completed 
missions (or “transportation movement requests”) against the contract requirements.  
Each completed mission would be classified as full payment, partial payment, no 
payment, or missions that required additional investigation.  (R4, tab 1 at 4, tab 82)  

2 
 
The contract provided that KMT would not be paid for failed missions (R4, tab 36 
at 22).  It defined “failed missions” broadly so that it included missions where the 
cargo had been delivered but some other aspect of the work had been done improperly, 
such as coordination of security (id.) 
 
 On February 12, 2018, KMT submitted a claim for demurrage charges.  The 
parties entered into a settlement agreement in June 2018 where the government agreed 
to pay KMT 57,209,855 AFN.  The settlement agreement contained the following 
language: 
 
KMT remises, releases, and discharges the Government . . . 
of and from all civil liabilities, obligations, claims, appeals 
and demands which it now has or hereafter may have, 
whether known or unknown . . . arising under or in any 
way related to the disputes which formed the basis of this 
Settlement Agreement. 
 
(R4, tab 80 at 1-3) 
 
 On September 3, 2019, a KMT representative informed the contracting officer 
that it intended to submit another claim and provided the contracting officer with a 
spreadsheet containing a list of hundreds of (allegedly) completed truck missions (R4, 
tabs 82 at 3, 82a). 
 
 The contracting officer immediately noticed that many of the missions might be 
untimely.  She wrote to KMT the next day (September 4th), observing that 662 of the 
718 dry cargo missions had delivery dates more than six years earlier, as did 175 of the 
206 heavy missions.*  She stated that if the actual delivery date proved to be later than 
the “Required Delivery Date” listed in the spreadsheet, she would review the mission 
to determine if payment were due.  She also cautioned KMT that the statute of 
limitations would continue to run until it submitted a certified claim.  (R4, tab 82 at 1) 
 
 KMT thereafter submitted a certified claim (albeit lacking the full Federal 
Acquisition Regulation (FAR) 33.207 certification language) for 201,595,566.07 AFN 
(R4, tab 83).  While the claim is dated September 4, 2019, the parties agree that the 
actual submission date was September 25, 2019 (am. compl. ¶ 15; R4, tab 97 at 9). 
 
 The claim contained no narrative description, although KMT did submit 
13 binders of documents and spreadsheets that summarized the claim (R4, tabs 83-96).  
                                              
* Demonstrating an admirable ability to look at the glass as half-full, KMT presents 
these facts as an admission by the contracting officer that “at least 56 of the 718” 
dry missions were timely, as were 31 of the heavy missions (am. compl. ¶ 131). 

3 
 
For each line item in the spreadsheets, KMT wrote:  “MISSION IS COMPLETE PER 
CUSTOMER REQUIREMENTS, PLEASE PAY AS FULL MISSION” (R4, tab 82a).  
Due to the lack of a claim narrative, it is unclear if KMT submitted these missions in 
its monthly draft invoice and, if so, whether they were addressed during the monthly 
meet and confer process. 
 
 On September 27, 2019 (two days after submission of the claim), the 
contracting officer denied the claim, contending that KMT had provided the 
government a “full release” in the demurrage settlement (R4, tab 97 at 9).  There is 
nothing in the record that indicates that she performed a review of the missions to 
determine if any of them were otherwise payable. 
 
 KMT filed a timely appeal on December 20, 2019, and a complaint dated 
January 23, 2020.  KMT used the complaint (including an argument section) to set 
forth its contentions as to why it had not released this claim as part of the demurrage 
settlement, but it once again failed to provide background information that explained 
how the claim arose except that KMT was allegedly not paid for its transportation 
costs. 
 
 The government filed a motion to dismiss for failure to state a claim.  The crux 
of the motion was that KMT had focused on the alleged release of claims in the 
demurrage settlement to such an extent that it had failed to allege any violation of the 
contract or the FAR (gov’t mot. at 5).  Importantly, the government did not move to 
dismiss for either of the two issues raised by the contracting officer, namely, the 
statute of limitations and the release of claims in the demurrage settlement. 
 
 After considering KMT’s response, the Board conducted a status conference, 
after which it granted KMT an opportunity to clarify its allegations in an amended 
complaint.  KMT filed the amended complaint on May 1, 2020.  The government 
responded with a letter to the Board on May 15, 2020, in which it contended that 
despite the amended complaint it still “is unable to discern what the claim is about.” 
 
DECISION 
 
FED. R. CIV. P. 12(b)(6) provides that a defendant may file a motion to dismiss 
for “failure to state a claim upon which relief can be granted.”  While the Board’s 
Rules do not specifically provide for such a motion, they do provide that the Board 
may consider motions that will “secure, to the fullest extent practicable, the informal, 
expeditious, and inexpensive resolution of appeals.”  Board Rule 7(a).  We have 
considered motions for failure to state a claim and have looked to cases interpreting 
FED. R. CIV. P. 12(b)(6), or Rule 12(b)(6) of the Court of Federal Claims, for guidance. 
  

4 
 
A complaint will be dismissed for failure to state a claim “‘when the facts 
asserted do not give rise to a legal remedy or do not elevate a claim for relief to the 
realm of plausibility.’”  Kellogg Brown & Root Servs., Inc. v. United States, 728 F.3d 
1348, 1365 (Fed. Cir. 2013) (quoting Laguna Hermosa Corp. v. United States, 671 
F.3d 1284, 1288 (Fed. Cir. 2012)).  We must accept well-pleaded factual allegations as 
true and must draw all reasonable inferences in favor of the claimant.  Id. (citing 
Lindsay v. United States, 295 F.3d 1252, 1257 (Fed. Cir. 2002)).  While we primarily 
consider the allegations in the complaint, we may also look to “‘matters incorporated 
by reference or integral to the claim, items subject to judicial notice, [and] matters of 
public record.’”  A & D Auto Sales, Inc. v. United States, 748 F.3d 1142, 1147 (Fed. 
Cir. 2014) (quoting 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL 
PRACTICE AND PROCEDURE § 1357 (3d ed. 2004). 
 
The Board agrees with the government that it would have been prudent for 
KMT to have provided more facts in the complaints that demonstrate why it is entitled 
to be paid and to have explained why missions completed more than six years before 
submission of the claim were timely.  See 41 U.S.C. § 7103(a)(4)(A) (“Each claim by 
a contractor against the Federal Government relating to a contract . . . shall be 
submitted within six years after the accrual of the claim.”).  Nevertheless, from 
reviewing the record, the basic outline of what KMT alleges is clear:  it had a contract 
with the government to provide truck transportation; the contract provided for payment 
at various rates; that at least some of the missions were within six years of the date of 
the claim; that it performed the transportation and is entitled to be paid; and, the 
government has not paid in full. 
 
This may be illustrated by returning to the 40-foot flatbed truck, which, as 
described above, was priced at 33,750 AFN per MU in the base year.  In the 
spreadsheet KMT submitted with the claim, the first six items in the dry cargo claim are 
for 40-foot flatbed trucks.  It seeks payment of one to four MUs for each, or 33,750 to 
135,000 AFN.  Next to each entry, KMT wrote:  “MISSION IS COMPLETE PER 
CUSTOMER REQUIREMENTS, PLEASE PAY AS FULL MISSION.”  (R4, tab 82a)  
While some more background information would have been helpful, we believe it is 
reasonable to infer that KMT contends it performed these six missions in full and that 
the government’s failure to pay is wrongful and a breach of the contract.  
 
Accordingly, KMT has pled sufficient facts, when considered in light of the 
claim and contract, for it to survive the government’s motion to dismiss. 
 
 
  

5 
 
CONCLUSION 
 
 The government’s motion to dismiss is denied. 
 
 Dated:  June 16, 2020 
 
 
 
 
 
 
 
 
 
MICHAEL N. O’CONNELL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 J. REID PROUTY 
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. 62319, Appeal of Kandahar 
Mahali Transit & Forwarding Ltd., rendered in conformance with the Board’s Charter. 
 
 Dated:  June 30, 2020 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals