Garco Construction, Inc.
Docket: ASBCA 57796, ASBCA 57888
Decision date: 2013-10-16

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of-- ) 
) 
Garco Construction, Inc. ) 
) 
Under Contract No. W912DW-06-C-0019 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 57796, 57888 
Steven D. Meacham, Esq. 
John V. Leary, Esq. 
Peel Brimley, LLP 
Seattle, WA 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
Francis X. Eugenio, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, Seattle 
OPINION BY ADMINISTRATIVE JUDGE CLARKE ON 
APPELLANT'S MOTION FOR SPOLIATION SANCTIONS 
This appeal arises from a contract with Garco Construction, Inc. (Garco) for the 
construction of housing on Malmstrom Air Force Base (MAFB). Garco moves for 
spoliation sanctions in the form of various adverse inferences against the U.S. Army 
Corps of Engineers (COE) for destroying documents. The COE opposes the motion and 
both parties filed briefs. We have jurisdiction pursuant to the Contract Disputes Act of 
1978 (CDA), 41 U.S.C. §§ 7101-7109. We deny Garco's motion. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
1. On 3 August 2006 the COE awarded Contract No.W912DW-06-C-0019 (0019) 
to Garco to replace family housing, phase VI, at MAFB (R4, tab D at 10-2, -3). The 
contract included FAR 52.243-4, CHANGES (AUG 1987) clause (R4, tab D at 113), and 
FAR 52.222-3, CONVICT LABOR (JUN 2003) clause (id. at 46). 
2. A pre-construction conference was held on 12 September 2006 that was 
documented in a 27 September 2006 set of minutes (R4, tab E, subtab 101 at 1-3). 
Representatives of Garco and its subcontractor James Talcott Construction, Inc. (JTC) 
attended (gov't opp'n, ex. Bat 2). The minutes included, "[n]o one with outstanding 
warrants, felony convictions, or on probation will be allowed on base" (R4, tab E, 
subtab 101 at 2). 

3. On 8 May 2007 JTC wrote Garco requesting "the opportunity to use 
Pre-Release Center individuals" on JTC's work as a subcontractor performing work on 
Contract No. 0019 (R4, tab E, subtab 102 at 2). The letter included: 
PerF AR 52-222-3 Convict Labor, this clause allows for the 
employment of persons on parole or probation. However, 
JTC does not understand why these individuals are 
continually being denied base access/passes. The 
unemployment rate in Montana is at a historical low. The 
construction industry is in need of qualified employees and 
these individuals should not be denied access to our jobsites. 
This issue is impacting and delaying JTC's performance of 
this contract. 
(!d.) On 9 May 2007 Garco forwarded JTC's letter to the COE stating that Garco agreed 
with JTC's request and that Garco was also concerned about the limited labor pool 
available in the Great Falls area (id. at 1). 
4. On 25 May 2007 a Background Paper concerning the request from Garco/JTC 
for base access for "convict labor" was prepared for the wing commander (gov't opp'n, 
ex. F). The paper presented three options from maintaining the status quo to relaxing 
the 
restrictions to allow "first offense non-violent offenders" access to MAFB (id. at 2). The 
paper concluded: 
(!d.) 
Conclusion: Reducing security access requirements for 
contractors creates a reward/risk situation. The reward is to 
facilitate the timely and cost effective completion of 
Malmstrom contracts. However, this benefit is not without 
the potential risk of offenses committed on base that may 
affect the good and discipline and safety of Malmstrom. 
5. On 10 September 2007 the COE sent JTC an email stating: 
All: fyi regarding Parollee labor Base access 
I've received an email from Nancy Sinclair of the JAG office. 
A new policy is being worked on. The Wing Commandeer 
has been briefed on the issue. Until the new policy is 
finalized, the Base has no further news to offer regarding the 
issue. Wish I could offer more insight on this. I can tell you 
that I was at a meeting in the June timeframe with COL Finan 
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regarding this issue, and I tried to stress to her just how tight 
the labor pool is right now. She was willing to readjust her 
policy, but she is concerned how the change would be 
implemented so that it is applied fairly to all Base contractors. 
(Gov't opp'n, ex. G) 
6. On 30 October 2007, Col Sandra E. Finan issued a policy memorandum 
regarding installation access for contractor personnel (R4, tab E, subtab 103). The policy 
included the following: 
c. The 911 Dispatch Center will input all listed 
employees' name and data into the National Criminal 
Information Center (NCIC) database for a background check 
in accordance with Air Force directives. Unfavorable results 
from the background check will result in individuals being 
denied access to the installation, including, but not limited to, 
individuals that are determined to fall into one or more of the 
following categories: those having outstanding wants or 
warrants, sex offenders, violent offenders, those who are on 
probation, and those who are in a pre-release program. 
(!d.) Persons passing the background check would be issued passes granting access to 
MAFB (id.) 
7. On 13 November 2007 Garco forwarded a 25 October 2007 Request for 
Equitable Adjustment (REA) from JTC wherein JTC requested an adjustment of 
$454,266.44 based on MAFB's refusal to allow ex-convicts and pre-release individuals 
access to the base (R4, tab E, subtab 104). The REA included the following: 
FAR 52.222-3 CONVICT LABOR (JUN 2003) specifically 
states that we are allowed to hire and employ individuals 
convicted of an offense for this contract. This FAR has been 
in previous contracts, and we planned on and used these 
individuals for other contracts. Because it is also in this 
contract, we based our cost estimates for Phase VI on our 
ability to use these same individuals or pool of individuals. 
There is a nationwide shortage of experienced construction 
workers. It is well documented that the problem is even more 
acute in Montana with our very low unemployment rate. 
(!d.) The REA did not contain a CDA claims certification (id. ). 
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8. By letter dated 18 December 2007 the COE contracting officer (CO) denied the 
REA (R4, tab E, subtab 1 06). The letter included reference to TS 01001 that is part of 
the contract (R4, tab D at 01001-1, -2): 
Your attention is directed to TS 01001-1.6. Paragraph 
(a) states that 
"the Contractor shall be responsible for 
compliance with all regulations and orders of the 
Commanding Officer of the Military Installation, respecting 
identification of employees, movements on installation, 
parking, truck entry and all other military regulations which 
affect the work." Paragraph (b) states that "The work under 
this Contract is to be performed at an operating Military 
Installation with consequent restrictions on entry and 
movement of nonmilitary personnel and equipment." 
(R4, tab E, subtab 106) 
9. By letter dated 21 February 2008, Garco reiterated its argument that JTC's 
REA should be allowed by the COE and requested reconsideration of the CO's denial 
(R4, tab E, subtab 1 07). 
10. By letter dated 1 April2008 the CO again denied Garco's REA and included 
the following: 
We researched the base security restrictions and 
according to Malmstrom Air Force Base personnel and 
documentation dated before March 2006, the security 
restrictions for certain types of convict labor were in 
effect before the August 2006 award of the 
aforementioned contract. The October 2007 policy 
was a reissue of the same restrictions as those 
implemented shortly after September 11, 2001. We 
have no information that indicates the base 
access 
policy has changed since September 2001. 
(R4, tab E, subtab 1 09) The letter ended with "[ s ]hould you disagree with this finding, 
you have the right to pursue remedy through the Disputes clause, FAR 52.233-1, ofthis 
contract" (id. ). 
4 

11. By letter dated 22 July 2008, Col Michael E. Fortney, Commander 341st 
Missile Wing, MAFB, responded to a 15 July letter from U.S. Representative 
Denny Rehberg inquiring about JTC's concerns with base access for employees (R4, 
tab E, subtab 112 at 5). The letter includes the following: 
(!d.) 
Mr. Brad Talcott's letter to you, dated June 24, 2008, 
infers that the inclusion of Federal Acquisition Regulation 
clause 52.222-3, Convict Labor, specifically allows 
contractors working on military installations to employ 
persons on parole, probation, or an approved prison work 
training program. The FAR clause in question, however, only 
states that a contractor is not prohibited from employing such 
persons. It does not state that such employees must be 
permitted to work on a military installation or that a 
contractor should anticipate being able to use such employees 
on a military installation. The military permits JTC to 
employee [sic] such individuals in support of government 
contract actions, but it does not necessarily permit all such 
individuals the ability to perform their work on a military 
installation. Malmstrom has taken no actions to prohibit JTC 
from employing persons on parole, probation, or an aJ1proved 
prison work training program, but 
instead has only limited 
base access to certain JTC employees who do not meet the 
base's security requirements. 
12. By letter dated 3 September 2008 to U.S. Senator Max Baucus, the COE 
responded to a 14 August 2008 inquiry relating to JTC's concerns over access to MAFB 
(R4, tab E, subtab 112 at 1-2). The letter includes the following: 
It is our understanding that the issue involves a request 
to allow these contractors to obtain Base access for certain 
convict laborers, as part of this contract. The Corps is 
administering this contract at Malmstrom AFB (Base); and 
the contract includes Federal Acquisition Regulations clause 
52.222.3, Convict Labor, and language that requires all 
contractor employees to comply with all restrictions, 
regulations and orders of the Commanding Officer of the 
Military Installation. It is our understanding that the current 
Base security restrictions, although reissued last year, were in 
effect before this August 2006 contract award. Actual copies 
of the written policy are controlled by the Base. The Corps 
5 

(!d.) 
Resident Office located at the Base does coordinate access 
applications between the contractor and the Base, but that is 
an administrative role not a policy role. The Base determines 
who is authorized access. I regret that the contractor is 
experiencing any monetary impact. 
13. By letter from Garco to the COE stamped "RECEIVED SEP 9 2008" but dated 
25 June 2008, Garco forwarded a 12 June 2008 letter from JTC, informing the COE that 
"James Talcott Construction intends to pursue a claim per the Disputes Clause if we can 
not [sic] reach a resolution to the REA concerning denial by base security to allow 
pre-release convict labor access to work on Malmstrom AFB" (R4, tab E, subtab 111; 
gov't opp'n, ex. H). The attached letter from JTC disputes the COE's contention that the 
security restrictions had been in place since 2001 and asserts that, "[i]n fact, the kinds of 
workers now denied entry to MAFB have been among our employees for at least the past 
20 years. They have worked for us on numerous projects at MAFB until the new edict 
was issued in the fall of 2007." (!d.) Copies of JTC' s letter were sent to Senator Baucus, 
Senator Jon Tester and Representative Rehberg (id. ). 
14. By letter dated 12 September 2008 to Garco, the COE responded to Garco's 
request for a CO's final decision stating in part: 
Prior to your September 8, 2008 email from 
Hollis Barnett to Brad Bradley, the Government had 
no record of your requesting a Contracting Officer's 
Decision in Serial Letter H-006, dated June 25th, 2008. 
Now that we have a copy (attached to Mr. Barnett's 
message), we must advise you that your request does 
not qualify as a claim per Contract Clause 52.233-1, 
Disputes. To qualify as a claim, Garco as the prime 
contractor must submit a sum certain using 
certification language stipulated by the clause. 
(R4, tab E, subtab 113) The COE attached the letters to Senator Baucus and 
Representative Rehberg for Garco's consideration (id.). 
15. JTC completed all work on its subcontracts on 28 November 2008 (gov't mot. 
for summ. J. at 11, .,-r 28; app. opp'n to mot. for summ. J., ex. 5, decl. of Brad Talcott). 
16. The record includes three emails sent on 9 December 2008. Mr. Brad Talcott, 
JTC, emailed Mr. Hollis Barnett, Garco, asking: 
6 

Are you going to confirm our claim to the COE or should we 
go a different route? After going back and reviewing in more 
detail (after your call requiring confirmation) we realize claim 
is probably on the light side. 
(Gov't opp'n, ex. I) Mr. Barnett responded: 
Yes, I will need to make a thorough review ofyour claim. 
This will involve a complete review of your cost and 
accounting of your labor productivity. 
The first thing I would like to see is JTC's convict labor 
employment history for 2003, 2004, 2005, 2006, 2007 and 
2008. 
I would like to see the total number of employment hours for 
each year for all field employees and what percentage of 
those hours were convict labor (both pre-release and 
ex-convict). 
I would also like to see a similar, but separate breakdown for 
all of JTC' s self performed work at Malmstrom Air Force 
Base for 2003, 2004, 2005, 2006, 2007 and 2008. 
(!d.) Mr. Barnett 
forwarded these two emails to Ms. Eileen Gallagher, MAFB Records 
Manager (gov't opp'n, ex. CC) stating the following: 
As you can see, Talcott is still pursing [sic] this claim and is 
willing to certify it is legitimate. However, we as Garco do 
not have the information necessary to make such a 
certification, but we are asking JTC to provide it to us. 
(Gov't opp'n, ex. I) 
1 7. On 23 March 2009 Garco wrote JTC reminding JTC that Garco had requested 
supporting data in order to justify Garco's certification of JTC's claim (gov't opp'n, 
ex. K). The letter included the following: 
I also requested to see JTC's convict labor employment 
history for 2003, 2004, 2005, 2006, 2007 and 2008 and the 
total number of employment hours for each year for all field 
employees and what percentage of those hours were convict 
labor (both pre-release and ex-convict). I also requested a 
7 

similar, but separate breakdown for all of JTC's self 
performed work at Malmstrom Air Force Base for 2003, 
2004, 2005, 2006, 2007 and 2008. 
In mid-December, 2008, both you and John Engerbretson 
advised me that the above requested data did not exist. You 
also asked me why it was necessary. I explained that I 
needed the supporting data in order to review the claim and 
certify that the claim is made in good faith and that the data is 
accurate and complete and that the amount requested is 
accurate in accordance with FAR 52.233-1. 
Please note, Garco has still not received any supporting 
data 
concerning JTC's convict labor claim and therefore can not 
[sic] certify the claim for submission to the government 
(!d.) JTC never provided Garco the requested data for years 2003 to 2008 (gov't opp'n, 
ex. L, dep. of Hollis Barnett at 36, line 20). 
18. On 24 July 2009 the COE accepted the construction for Phase VI housing at 
MAFB (gov't opp'n, ex. M). 
19. On 24 May 2011, Garco submitted a certified pass-through claim (R4, 
tab A, ex. 7). The 
certification read: 
Based on the information JTC provided to Garco 
Construction in the attached claim report prepared by 
Hainline & Associates, I hereby certify that the claim is made 
in good faith; that the supporting data are accurate and 
complete to the best of my knowledge and belief; that the 
amount requested accurately reflects the contract adjustment 
for which Garco Construction believes the Government is 
liable; and that I am duly authorized to certify the claim on 
behalf of Garco Construction. 
(!d.) The certification was signed by Hollis Barnett, Vice President. Attached to the 
pass-through claim was an REA dated 16 May 20 11. (!d.) 
8 

20. The CO denied the pass-through claim in a 23 November 2011 final decision 
(R4, tab B)1 The denial was appealed to the Board and docketed as ASBCA No. 57796 
on 29 September 20 11.2 
21. In response to Garco' s numerous document requests, the government 
repeatedly stated, "[p ]revious or non-current versions of the listed items were destroyed 
pursuant to the Air Force Records Disposition Schedule" or words to that effect 
(app. mot., ex. 1). 
DECISION 
To support a motion for adverse inference based on spoliation, the requesting 
party must prove the following three elements: 
( 1) [T]he party having control over the evidence had an 
obligation to preserve it when it was destroyed or altered; 
(2) the destruction or loss was accompanied by a "culpable 
state of mind;" and (3) the evidence that was destroyed or 
altered was "relevant" to the claims or defenses of the party 
that sought the discovery of the spoliated evidence, to the 
extent that a reasonable factfinder could conclude that the lost 
evidence would have supported the claims or defenses of the 
party that sought it. 
Ensign-Bickford Aerospace & Defense Co., ASBCA No. 57929, 13 BCA ~ 35,322 at 
173,382. As can be seen from these three elements, destruction of evidence is assumed. 
In this case the government acknowledged such destruction (SOF ~ 21 ). The burden of 
proof of spoliation is on the party seeking to use the evidence destroyed, in this case 
Garco. !d. at 173,383. 
Obligation to Preserve 
As to the first element "obligation to preserve," the duty attaches "when litigation 
is pending or reasonably foreseeable; from that point on, a party is obliged to preserve, 
for another's use, property within its control." Ensign-Bickford, 13 BCA ,-r 35,322 at 
173,383. "When litigation is 'reasonably foreseeable' is a flexible fact-specific standard 
that allows a district court to exercise the discretion necessary to confront the myriad 
factual situations inherent in the spoliation inquiry." Micron Technology, Inc. v. Rambus 
1 Amended on 5 December 2011 (R4, tab Bat 1) 
2 ASBCA No. 57888 was a "protective appeal related to ASBCA No. 57796" docketed 
on 16 December 2011 and later consolidated with 57796. 
9 

Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011) (citations omitted). The same is true for this 
Board. 
Garco contends that in this case the obligation arose when the uncertified 
pass-through REA was first submitted on 13 November 2007 (app. mot. at 19; SOF ~ 7).3 
The government counters that the obligation to preserve did not arise until a properly 
certified pass-through claim was submitted on 24 May 2011 (gov't opp'n at 21; SOF 
~ 19). The obligation to preserve attaches when "litigation is pending or reasonably 
foreseeable." Ensign-Bickford, 13 BCA ~ 35,322 at 173,383. We consider litigation to 
be "pending" when a case is docketed at a court or board. The government does not 
contend that its obligation should commence when Garco's appeal was docketed by the 
ASBCA on 29 September 2011. Therefore, both parties agree that the government's 
obligation to preserve arose before litigation was 
"pending." Thus the question here is 
when litigation was "reasonable foreseeable," something that depends on the facts of 
each case. In Ensign-Bickford it was the contractor that was accused of spoliation. 
Ensign-Bickford disposed of "spent detonators" from in-house testing after it had been 
notified that the government rejected lots 11 to 14. The government complained that the 
destruction prevented it from inspecting the spent detonators to possibly help prove that 
its rejection of the lots based on "venting" was proper. The destruction occurred three 
and one half months from submission of a certified claim. The Board held destruction of 
the spent detonators occurred "at a time when instigation of the instant litigation was 
solely within the contractor's control" and therefore Ensign-Bickford "knew or 
reasonably should have known of the potential litigation value of these functioned 
detonators and failed in its duty to preserve evidence." Ensign-Bickford, 13 BCA 
~ 35,322 at 173,383. In our case it is the government that is accused of spoliation and, 
since the government did not instigate this litigation, we cannot apply the logic of 
Ensign-Bickford to arrive at a conclusion. However, Ensign-Bickford illustrates the 
factual analysis required to determine when the obligation arises. 
In this case, three years and ten months passed between the submission of the 
uncertified REA and the certified claim, unlike the three and one half months in 
Ensign-Bickford. The CO denied the 13 November 2007 REA almost immediately on 
18 December 2007 (SOF ~ 8). On 21 February 2008 Garco requested reconsideration 
(SOF ~ 9). The CO affirmed the denial of the REA on 1 April2008 and referred Garco to 
the disputes clause, FAR 52.233-1 (SOF ~ 1 0). On 28 November 2008, JTC completed 
its work on the contract (SOF ~ 15). Also in 2008, the government responded to 
congressional inquiries (SOF ~~ 11, 12), pointed out to Garco the uncertified REA did 
3 Garco relies upon AAB Joint Venture v. United States, 75 Fed. Cl. 432,442 (2007) for 
the proposition that the obligation arises when an REA is submitted ( app. mot. at 
18); however, in AAB Joint Venture the government did not contest that the 
obligation arose when the REA was submitted, unlike the case here. 
10 

qualify as a claim (SOF ~ 14), and learned4 that Garco attempted, unsuccessfully, to 
obtain support for the claim from JTC in the form of employment records for 2003 to 
2008 in order for it to certify JTC's pass-through claim (SOF ~~ 16-17). The project was 
accepted on 24 July 2009 (SOF ~ 18). After the project was complete and accepted, 607 
days passed before a certified claim was submitted to the government. 
While under the right circumstances, the 13 November 2007 REA could create an 
obligation on the part of the government to preserve evidence, the right circumstances do 
not exist in this case. In December 2007 and April 2008 the government timely rejected 
both the REA and the request for reconsideration respectively. Although reminded about 
the disputes process, Garco/JTC did not then submit a certified claim. In 2008 Garco, by 
providing a copy of the December 2008 emails (SOF ~ 16), informed the government that 
JTC had not provided employment records supporting its claim and that Garco declined 
to provide pass-through certification. This was over six months from contract 
completion. A year and a half then passed between contract completion and the 
submission of the certified claim. Given this record, we cannot conclude that the 
litigation was reasonably foreseeable on 13 November 2007. Rather, we agree with the 
government that due to Garco's/JTC's delay, the obligation to preserve documents arose 
on 24 May 20 11 when a certified claim was finally submitted to the government. 
Culpable State of Mind 
Case law establishes that the required "culpable state of mind" may be bad faith or 
something less. In Ensign-Bickford the Board's standard was 
"that appellant acted in bad 
faith or to disadvantage the government." Ensign-Bickford, 13 BCA ~ 35,322 at 173,383. 
In Sean Gerlich v. United States Department of Justice, 711 F.3d 161 (D.C. Cir. 2013), 
the court found that future litigation was reasonably foreseeable and that records were 
"intentionally destroyed" and destruction was 
"neither accidental nor simply a matter of 
utilizing the Department's record destruction schedule." !d. at 171. From this, we 
conclude that the court would not find the requisite "culpable state of mind" if records 
were destroyed accidentally or in accordance with a destruction schedule. In United 
Medical Supply Co. v. United States, 77 Fed. Cl. 257 (2007) the court discussed both 
"gross negligence" ( id. at 2 71 ), and "reckless disregard of its duty to preserve relevant 
evidence." !d. at 274. 
Garco's argument concerning culpable state of mind is found on pages 21 through 
25 of its motion. In pages 21 through 23 Garco summarizes case law in this area. Its 
substantive argument is found on one and a half pages from 24 to 25. Garco relies on the 
government's response to Garco's Request for Admission No.8. The request reads, 
"Admit that the Corps did not issue a Litigation Hold for records concerning the 
4 Garco provided a copy of its request to JTC for substantiation to the government 
(SOF ~ 16). 
11 

Malmstrom AFB Phase 6 Housing project until April26, 2012" (app. mot., ex. 7 at 3). 
The government agreed that 
it issued a written litigation hold on 26 Apri12012, but 
denied the request for admission. The response reads: 
ANSWER: Objection mischaracterizes facts and therefore 
deny. The Corps issued a written litigation hold on 26 April 
20 12 for easier distribution to parties. After receipt of the 
24 May 2011 request for contracting officer decision (COD), 
the Corps verbally contacted the Corps Malmstrom Field 
office, the Corps Construction Division, the Corps 
Contracting Division, and Malmstrom Air Force Base 
General Counsel regarding the request for a COD and the 
potential for litigation. This was during the gathering of 
information and development of the COD to respond to the 
24 May 2011 request for a COD. It is standard practice that 
employees produce all relative [sic] information to the Corps' 
Office of Counsel and Contracting Division for development 
of a COD, and it is standard practice that employees retain 
information related to the request for a COD. Malmstrom Air 
Force Base 
counsel verbally informed all Malmstrom 
agencies that may have relevant information, including, but 
not limited to, Malmstrom Security Force Group, Malmstrom 
Contracting Division, and Malmstrom Base Records Manager 
of the potential litigation and requirement to retain all 
information related to the contract. Additionally, it was the 
Malmstrom counsel's practice to forward the email litigation 
hold received from the Army Corp of Engineers to all 
Malmstrom agencies that may have relevant documents. 
(!d.) Garco challenges the verbal notifications as "unsubstantiated" and complains that 
the government did not identify who made the verbal notification and when they were 
made. Garco also complains that MAFB's counsel, Ms. Sinclair, refused to testify at her 
deposition. (App. mot. at 21-25) Garco does not provide any additional argument 
relative to culpable mental state in its brief in reply to the government's opposition. By 
relying solely on the government's response to Request for Admission No.8, Garco 
leaves us with a "sparse" record regarding its "culpable state of mind" argument. See 
ADT Construction Group, Inc., ASBCA No. 55358, 13 BCA ~ 35,307. To the extent 
documents were destroyed after 24 May 2011 (when the obligation to preserve 
documents arose), they were destroyed pursuant to MAFB's disposition schedule. 
Nothing in Garco's discussion of the government's response supports a finding that the 
government "intentionally destroyed" evidence, destroyed evidence to "disadvantage" 
appellant, or acted in "reckless disregard" of its duty to preserve evidence. Therefore, we 
12 

conclude that Garco has failed to prove the second element of proof required for 
spoliation- culpable mental state. 
Evidence Destroyed was Relevant & Supportive of the Claim 
Garco's initial argument on this element of proof is contained on half of page 25 
and page 26. On page 25 Garco discusses legal precedents. On page 26, Garco first 
states, "[h ]ere, as the discussion and factual summary above has shown, Appellant has 
been prejudiced because the destroyed evidence goes to critical issues and the remaining 
evidence at hand is conflicting." Garco leaves it to the Board to figure out what 
"discussion" and "factual summary" it refers to and how it proves prejudice. Garco's 
statement, "[ f]or instance, and not surprisingly, the Government has never asserted that 
Col. Finan's destroyed emails and other correspondence would not have contained 
responsive material" appears to shift the burden of proof to the government. We give this 
argument no weight. Likewise, in the remaining argument on page 26, Garco fails to 
refer the Board to any of the facts in its Relevant Facts section on pages 10 to 17. In its 
reply to the government's opposition, Garco supplements its relevance argument (app. 
reply hr. at 23-25), but Garco's argument remains tied to its discovery requests, in 
particular RFP #8 (id. at 24). Considering Garco's reply brief, we remain unable to 
definitively conclude that the documents destroyed in accordance with Air Force rules 
were relevant to Garco's case. 
Adverse Inferences Sought 
Finally we consider the remedy Garco seeks. Garco states that it "seeks sanctions 
on the lesser end of the spectrum and does not seek a harsh, case-dispositive sanction" 
(app. mot. at 27). We do not agree with Garco's characterization of its desired sanctions. 
Garco's first request for a sanction reads, "Adverse factual inference that the 
Government's base access restrictions during the Project were a change to the 
contract (contrary to the Government's contention that there was no change to the 
policy or contract after the award)" (app. mot. at 27). We disagree that this request 
involves a "factual inference." Whether there is a change to the contract is a question of 
law. MA. Mortenson Co., ASBCA No. 53346, 05-2 BCA ~ 33,014 at 163,614 ("Whether 
there has been a change to the contract requirements is a question of law"). Additionally, 
inferring that there was a change is a dispositive inference because the Changes clause, 
FAR 52.243-4, entitles a contractor to an "equitable adjustment" for increased costs 
caused by the change. Imposing this inference would effectively 
determine that Garco is 
entitled to compensation leaving only quantum to be determined. A finding of bad faith 
is, however, required for the imposition of such dispositive sanctions: 
A determination of bad faith is normally a prerequisite to the 
imposition of dispositive sanctions for spoliation under the 
district court's inherent power, and must be made with 
13 

caution. In determining that a spoliator acted in bad faith, a 
district court must do more than state the conclusion of 
spoliation and note that the document destruction was 
intentional. See Mathis v. John Morden Buick, Inc., 136 F.3d 
1153, 1155 (7th Cir. 1998) ("That the documents were 
destroyed intentionally no one can doubt, but 'bad faith' 
means destruction for the purpose of hiding adverse 
information.") (emphasis added). 
Micron Technology, 645 F.3d at 1327. There is no evidence of bad faith on the part of 
the government and therefore Garco would not be entitled to its first requested adverse 
inference. 
The other three 5 adverse inferences that Garco requests relate to the government's 
sovereign act defense. In essence Garco asks that the Board impose an inference that 
there was no sovereign act. Again, this is a question of law not fact and is dispositive as 
to the affirmative defense. As such, these requests likewise require a showing of bad 
faith that has not been made. 
CONCLUSION 
For the reasons stated above, Garco' s motion for spoliation sanctions is denied. 
Dated: 16 October 2013 
I concur 
PETER D. TING 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
, 
-
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
rAvttLlL_atr5f-LI ETH M. GRANT 
A ministrahve Judge 
Acting Vice Chairman 
Armed Services Board 
of Contract Appeals 
5 Garco withdrew its request for monetary sanctions (app. reply br. at 27). 
14 

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. 57796, 57888, Appeals of 
Garco Construction, Inc., rendered in conformance with the Board's Charter. 
Dated: 
15 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals 
•