Rashed Elham Trading Company
Docket: ASBCA 58383, ASBCA 58619, ASBCA 58620
Decision date: 2017-10-12

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
Rashed Elham Trading Company ) 
) 
Under Contract No. W91B4N-l l-D-7001 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 58383, 
58619, 58620 
William J. Spriggs, Esq. 
Spriggs Law Group 
Lynchburg, VA 
Raymond M. Saunders, Esq. 
Army Chief Trial Attorney 
MAJ Christopher M. Coy, JA 
Erica S. Beardsley, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE NEWSOM 
These appeals concern the termination for cause of a commercial contract to 
transport cargo and fuel in support of contingency operations in Afghanistan, and a 
related claim for breach of contract. After a hearing and post-hearing briefing, the Board 
upholds the termination and denies the appeals. 
FINDINGS OF FACT 
1. On 12 August 2011, the Bagram Regional Contracting Center, a component of 
the United States Department of Defense Central Command, awarded Contract 
No. W91B4N-l l-D-7001 (contract) to appellant, Rashed Elham Trading Company 
(RETC) (R4, tab 1 at 2, 76). This contract was one of several National Afghan Trucking 
(NAT) contracts awarded to contractors to transport supplies, equipment, and other assets 
to and from sites in Afghanistan (id. at 77; tr. 1/33). 
2. RETC's NAT contract was an indefinite-quantity, indefinite-delivery contract 
for an estimated value of AFN 20,771,689,159 in Afghanistan currency (R4, tab 1 at 2, 
4). The contract included a 12-month base period of performance from 16 September 
2011 to 15 September 2012, followed by 2 option periods which together totaled 
15 months (id. at 14; tr. 1/29). 
3. The contract incorporated FAR 52.212-4, CONTRACT TERMS AND CONDITIONS 
- COMMERCIAL ITEMS (JUN 2010). Subsection (m), entitled Termination for cause, 

identifies the permissible grounds for a termination for cause, stating in relevant part: 
The Government may terminate this contract. or any part 
hereof, for cause in the event of any default by the Contractor, 
of if the Contractor fails to comply with any contract terms 
and conditions, or fails to provide the Government, upon 
request, with adequate assurances of future performance. 
(R4, tab 1 at 15) 
4. Transportation missions were divided into three categories, called "suites." 
Suite 1 was for transportation of bulk fuels, Suite 2 was for transportation of dry cargo, 
and Suite 3 was for transportation of heavy cargo (R4, tab 1 at 9-13; tr. 1/33). 
5. The contract's Performance Work Statement (PWS) described the work, 
performance standards, and procedural requirements. Pursuant to Subpart 1.4, RETC 
was required to provide "secure ground transportation of [various classes of] cargo 
throughout Afghanistan" and "all management 
and logistics support resources necessary 
to pickup material and equipment at origin and deliver material and equipment at 
destination on the dates required by the USG" and required to "ensure the integrity and 
safety of the materials and equipment being transported" (R4, tab 1 at 77). 
I. Significant Contract Requirements 
A. Minimum Assets 
6. Three general categories of contract requirements are significant to this dispute. 
First, PWS Subpart 5.1 and Technical Exhibit 4 required RETC to maintain availability 
of a minimum number of assets for assignment of transportation missions (R4, tab 1 
at 82-83, 99). "Assets" in this context meant trucks, containers, and specialized trailers 
called ""lowboys" or "super lowboys" (id. at 99). PWS Subpart 6.2 required RETC daily 
to report the status of its assets, including "assets available for dispatch within 96 hours'' 
(id. at 90). 
B. Documented Compliance with Mission Requirements 
7. Second, the PWS set forth detailed performance and documentation 
requirements. The government initiated a mission by issuing to RETC a Transportation 
Movement Request (TMR), also called a "mission sheet." (R4, tab 1 at 91, 101; tr. 1 /34) 
The TMR defined mission requirements, which could include origin and destination, 
dates for pickup and delivery, the commodity being transported, required security, or 
other data (R4, tab 165 at 16 I 5, tabs 22-23, 69 at 651; tr. 1134, 92-93). Pickup was 
2 

known as "upload" and the date for pickup was called the "required spot date" or RSD. 1 
Delivery was known as "download" and the date for delivery was alternately called the 
"required download date," or "required delivery date," or RDD. (R4, tab 1 at 26, 93) 
8. At upload and download, RETC was required to obtain signatures of authorized 
government personnel on the TMR; these signatures verified that the cargo had been 
picked up and delivered (R4, tab 165 at 1615-17; tr. 1/91-93). PWS Subpart 6.7 required 
RETC to submit the original, signed TMR to the government ""within 28 days" after 
delivery. If a TMR had been misplaced or a signature could not be obtained, RETC 
could obtain a memorandum from the government customer, in lieu of the TMR, 
verifying mission performance. (R4, tab 1 at 91; tr. 2/153) 
9. Along with the TMR, RETC was required to submit other supporting 
documentation, notably, satellite transponder 
"snapshots." PWS Subpart 4.4 required 
RETC to attach to its vehicles a satellite transponder that transmitted signals showing the 
vehicle location at points in time2 (R4, tab lat 81-82; tr. 1/41-44). Snapshots would show 
that RETC showed up at the correct locations by the RSD and RDD and would establish 
wait times for demurrage requests. 3 
l 0. PWS Subpart 6. 7 warned that "suspected fraudulent or altered mission sheets 
will be investigated by the USG. Payment for any suspected fraudulent or altered mission 
sheets will be suspended pending the results of the investigation." (R4, tab 1 at 91) In 
addition, certain performance deficiencies could cause the government temporarily to 
suspend a contractor from eligibility for new missions until the contractor submitted a 
corrective action plan, acceptable to the government, to prevent reoccurrence of the 
deficiency (id. at 49). 
C. Invoicing and Payment Requirements 
11. The third category of significant contract requirements were those governing 
invoicing, principally Paragraph Kand PWS Subpart 6.6 (R4, tab 1 at 5, 90-91). 
12. Paragraph K required RETC to coordinate with the government to "review all 
completed missions against the contract requirements" in advance of invoice 
submission. It did not specify who would prepare invoices. Paragraph K stated in 
1 In the original contract, the date for pickup was called "required load date" or RLD. 
Later, the contract was modified to change this term to "required spot date" or 
RSD. (R4, tab 26 at 349) 
2 Modification No. POOOO I required RETC to submit snapshots with its TMRs to verify 
timely performance (R4, tab 6 at 117 and Revised PWS at 7). 
3 "Demurrage" refers to excess time spent waiting on location for upload or download. 
PWS Subpart 5.9 entitled RETC to compensation for demurrage (R4, tab 1 at 84). 
3 

relevant part: 
Prior to the monthly 
invoice submission, the contractor and 
the Government will meet to review all completed missions 
against the contract requirements. The Contractor should 
have their draft invoice, using the format in Solicitation 
Attachment 5, and all supporting documentation covering the 
requirements of the PWS paragraph 6.6 available for 
discussion. 
(R4, tab 1 at 5) 
13. PWS Subpart 6.6 also did not specify who would prepare invoices, but 
required RETC monthly to submit an invoice "that includes all missions that are closed 
out each month." It stated in full: 
The Contractor shall provide an invoice to the USG monthly 
that includes all missions that are closed out each month for 
the invoicing period. The invoice will include charges for all 
successfully completed 
missions, cancelled/prorated 
missions, and demurrage, less all applicable deductions. 
Deductions may include charges for missing cargo items for 
which the Contractor is held financially liable, any items 
furnished by the USG (IA W ii 4.2.3, 5.11.2.1.2, 5.12.3.1.2), 
PRS deductions, and applicable Contractor demurrage (IA W 
ii 5.11.5.4, 5.12.5.4). 
(R4, tab 1 at 90-91) 
14. A mission would be deemed "failed" - resulting in no pay - for many reasons 
including RETC's failure to arrive at the origin or destination on time, its excessive loss 
of fuel during a fuel delivery mission, RETC's submission of"falsified or tampered 
mission paperwork" or if '"cargo delivery cannot be verified." The government could 
deduct from RETC's payments for lost or damaged cargo, RETC's failure to achieve 
performance quality standards, or other noncompliances. (R4, tab I at 84, 90-91, 94) 
15. On 16 October 2011, the government issued a Memorandum for Record 
(MFR) establishing deadlines for submission of TMRs and assigning responsibilities for 
invoice preparation. This MFR, which was not incorporated into the contract through a 
contract modification, stated in relevant part: 
The 257th JMCB has established the following timeline for 
the Nation[al] Afghan Trucking (NAT) contract monthly 
4 

invoice. The dates listed below will happen each month, 
regardless which day of the week the date falls on. 
a. 16th_ 15th (monthly), Mission sheets are turned in for 
the billing 
b. l 6th_NAT Cell prepares the invoice for COR review 
c. 17th_ 1 gth, COR reviews the prepared invoice 
d. 1 gth_ pre-invoices is sent to the carriers 
e. 19th_20th, Carrier has time to review the pre-invoice 
f. 21 st_22°ct, Discussion period between the COR and 
Carrier for monthly invoice (closeout) 
g. 2yct -24th, Carrier prepares the final invoice for 
WA Wf[ 4l or paper invoice for tum-in 
h. 25th (per PWS 6.6, deliverable), The final invoice for 
that month is submitted in WA WF or sent via email to 
the COR. 
(App. supp. R4, tab A-10) 
16. Two aspects of this MFR are significant. First, before invoice submission, the 
contracting officer's representative (COR) was to review the documents submitted by 
RETC to determine which missions were completed and entitled to payment, and whether 
any deductions should be applied. Second, the government - not RETC - was to prepare 
draft invoices. RETC could review and contest them, but ultimately RETC was required 
to submit a government-approved invoice for payment. (App. supp. R4, tab A-10~ 
tr. 2/104-08) 
II. RETC's Performance Problems 
17. Problems with RETC's performance surfaced shortly after RETC began 
performance in September 2011 and persisted throughout the approximately nine months 
that RETC accepted missions. In that period, the government issued at least seven 
"Letters of Concern" to RETC regarding what the government perceived as RETC's 
noncompliance with contract requirements or other performance issues (R4, tab 3 (failure 
to submit deliverables), tab 35 (super lowboy (SLB) inspection), tab 43 (SLB 
noncompliance), tab 93 (pilfered container), tab 115 (insufficient assets), tab 137 (failure 
to satisfy acceptable quality levels), tab 141 (various matters)). 
18. As detailed below, on three occasions the government suspended RETC from 
eligibility for new missions until it submitted an acceptable corrective action plan to 
4 Invoices were to be submitted into the Wide Area Work flow (WA WF), a Department 
of Defense application (R4, tab 6 at 132, tab 9 at 142). 
5 

address what the government perceived as performance deficiencies. On other occasions, 
the government deemed RETC to be responsible for a variety of performance problems. 5 
(Findings I9, 22, 24, 29, 36, 40, 47) 
A. First Suspension 
19. The first suspension occurred on 7 January 2012, when the government 
suspended RETC from eligibility for certain missions for RETC's failure to maintain a 
sufficient 
number of assets called "super lowboys" (R4, tabs 45, 46). RETC submitted a 
corrective action plan, which 
was accepted, and the government lifted the suspension on 
18 January 20 I2 (R4, tab 57). 
B. Accident Damaging Mine Resistant Ambush Protected Vehicle 
20. Another problem arose on 22 January 2012, when RETC's subcontractor 
crashed while transporting a government-owned Mine Resistant Ambush Protected 
(MRAP) vehicle, costing $224,341.94 in repairs (R4, tabs 75, 118-19, I29; tr. 1/49). 
On 29 March 2012, an investigator concluded that "[o]verwhelming facts point to the 
possible cause as either mechanical issues or the driver" (R4, tab 119 at I 
I 00). 
21. PWS Subpart 5. 7, Cargo Responsibilities, provided in pertinent part that: 
It is the Contractor's responsibility to properly secure loads 
for transport IA W PAM 55-20. The Contractor shall be 
financially liable for cargo loss, pilferage, or damage 
incurred due to improperly securing cargo loads, negligent or 
improper driving by the operator, improperly handling cargo, 
or unauthorized trans-loading or cross-loading of cargo. 
(R4, tab 1 at 84) (Emphasis added) 
22. On 30 March 2012, the government notified RETC that it would hold RETC 
liable for the repair costs. At the time, RETC did not object to being held liable; it only 
objected to the amount that RETC was charged, stating that RETC "should only be liable for 
the repairs not an added expenditure limit." (R4, tab 128 at 1233-34, tab 129; tr. 2/93-94) 
5 Despite the performance problems, the government's monthly surveillance reports 
assessed RETC as compliant with the contract requirements, at least for the period 
September 
2011 through February 20I2 (R4, tabs 8, 24, 44, 133-34). The COR 
testified, and we find, that the monthly surveillance reports were based on 
incomplete information and were inaccurate (tr. 3/132-33). 
6 

C. Second Suspension 
23. RETC's second suspension occurred on 8 March 2012 and arose out of a theft 
of a government container (R4, tab 93). Between 29 October 2011and22 November 
2011, a government container went missing while being transported by RETC (R4, tab 25 
at 339-40). In response to government queries, RETC at first asserted that the container 
had been delivered, and provided the "completed TMR#AAJ4928" for the mission (R4, 
tab 25 at 341, 345; tr. 2/72). Investigators detennined that the container had likely been 
stolen and the signature on the TMR likely had been forged (R4, tab 69 at 648, 651, 
tab 70 at 658; tr. 2/81-82). 
24. On 8 March 2012, the government suspended RETC from new missions until 
it submitted a corrective action plan (R4, tab 93 at 944). At the time, RETC conceded 
that the container had been stolen and the TMR had been forged, but blamed its 
subcontractor, stating: 
RETC does acknowledge that a registered 
sub-contractor for RETC was involved with an incident that 
initiated an investigation by CID. 
Omar Amin Trading Company was involved in theft of 
USG property and forgery in an attempt to collect payment.. .. 
RETC does understand that we are liable for 
the actions of all sub-contractors and drivers of each 
sub-contractor. 
(R4, tab 99 at 980; tr. 1/81) 
25. On 15 March 2012, the government lifted RETC's suspension but noted that 
RETC would be held liable for $257,675.00 in lost property (R4, tabs 70, 91, 100, 830 
at 379-383; tr. 2/83). As later developments showed, pilferage 
and concerns about 
possible forgery on RETC missions persisted (findings 27, 36, 41, 50). 
26. Indeed, a few weeks later, on 8 April 2012, RETC submitted to the 
government a memorandum, apparently signed by a government official, stating that the 
missing container had been located. RETC requested reimbursement for the charges 
assessed against it for the lost property. (R4, tab 149 at 1499-1500) 
7 

27. The person who purportedly signed this memorandum, SGT Erika Brooke,6 
informed the COR that "[t ]his is a forged memorandum of my signature. I have no[t] 
produced a memorandum like this and this is not my signature." (R4, tab 150 at 1502) 
She testified that the signature was "completely not mine" and that the memorandum had 
not been prepared by her (tr. 2/85-89). 
D. Difficulties with Invoicing and Payment 
28. In December 2011, RETC submitted invoices for missions completed between 
16 September 2011and15 November 2011, and received payment of$509,470.26 on 
24 January 2012 (R4, tabs 7, 11, 66). Thereafter, RETC experienced difficulties with 
invoice preparation (R4, tab 71 at 662, tab 84 at 832; tr. 11101-03). 
29. In many instances, RETC submitted late, incomplete, or inaccurate TMRs, or 
TMRs that the government suspected were forged (R4, tab 165; tr. 1191-96, 2169-72). 
SGT Brooke testified that when submitting requests for payment for demurrage, RETC's 
packages were "improperly put together." She '"explained several times'' to RETC's 
program manager "how to do this," adding: 
(Tr. 2/69-70) 
[F]or the most part the carriers could all put this together 
properly. But for some reason I just had issues with RETC . 
.. .I explain[ ed] to him that I need snapshots of the 
truck at origin or destination.... I need to know if your truck 
arrived at origin or destination on time because if they didn't 
you're not entitled to the demurrage per the PWS. 
So I needed that, and he didn't provide it. 
30. IfRETC lacked records to support payment, the government would allow it to 
roll that TMR over to the next month "giving the carrier [a] whole other month to find 
infonnation on that TMR" (tr. 2/111 ). In other instances, RETC failed to perform in 
accordance with the PWS, or government property went missing, resulting in a mission 
failure with no pay, or deductions (R4, tabs 91, 148-49, 383, 385; tr. 2172-78, 82-89, 
96-97). The government rejected approximately 55 percent of the invoices that RETC 
submitted, and on at least one occasion it took RETC months to revise and resubmit the 
paperwork (R4, tab 406; tr. 1127-28, 35-36). 
6 SGT Brooke was later promoted (tr. 2/64). We refer to SGT Brooke by the rank she 
held during the events leading up to the termination. 
8 

31. CPT Joseph Guess, the COR, reviewed TMRs submitted by RETC. He noted 
that he "personally [spent] hours confirming all the no shows" - meaning occasions in 
which RETC trucks did not arrive to pick up cargo (R4, tab 109 at 1032). Concerns 
about possible forgeries required additional investigation. For instance, while 
investigating a TMR turned in by RETC, CPT Guess asked a military service member 
whether his signature on a TMR was authentic. He replied, "[t]hat is not my writing on 
that TMR. My name is misspelled for one." (R4, tab I 07 at 1024-26) 
32. RETC contends that the government was slow to prepare invoices and that the 
resulting payment delays caused problems with RETC subcontractors "because they were 
not being paid" (tr. 3/24). RETC's evidence, including an invoice tracking log and 
emails complaining about slow delivery of invoices, is unpersuasive. While RETC's 
evidence established that there were delays in invoice preparation, it does not establish 
that the government caused these delays (R4, tabs 71, 90, 138, 192, 283; supp. R4, 
tab 406; tr. 3/23-24). In contrast, the government presented evidence that RETC's 
submission of late, incomplete, or inaccurate TMRs caused delay (R4, tab 109 at 1032, 
tab 165; tr. 1191-96, 2/69-72). 
33. Also, RETC offered no financial records or communications with 
subcontractors demonstrating a causal connection between delayed payments and poor 
subcontractor performance. Considering 
all the evidence, we find that government 
payment delays were not a controlling cause ofRETC's performance problems. 
34. Nevertheless, RETC complained about government rejections of its TMRs, 
particularly for fuel missions (R4, tab 84 at 832). On 22 March 2012, RETC's Program 
Manager, Ricky Jordan, claimed that the government improperly rejected "hundreds" of 
RETC's fuel TMRs that had "clear undeniable signatures," stating: 
There is a serious disconnect between the downloading units 
and the units doing the DD250[.] The military can say any 
signature[] is suspicious and that in tum hits the carrier with 
forgery. The military does not have a verifiable means of 
verifying signatures or persons dedicated to downloads or 
DD250 preparation and this leaves the carrier no way to 
defend its self 
(R4, tab 108) He requested a meeting with the contracting officer and COR (id.). 
E. Pilferage of Government-Owned Fuel During RETC Fuel Missions 
35. L TC Edward Gosline, who was the contracting officer at that time, and 
CPT Guess met with RETC on 22 March 2012 (R4, tab 109; tr. 1126, 74-76, 2/169). 
Based upon subsequent events detailed below, we surmise that L TC Gosline and 
9 

CPT Guess informed RETC during this meeting that government fuel had disappeared 
during RETC fuel transportation missions and that RETC would be charged for the 
losses. 
36. The following day, 23 March 2012, RETC's Mr. Jordan, admitted that 
approximately 80,000 gallons of government fuel "had come up missing," and blamed an 
RETC subcontractor forthe losses (tr. 1/74-76, 3155, 117-19; R4, tabs 111-12). 
37. These fuel losses could, under the contract, be charged to RETC. PWS 
Subpart 5.10.5 contemplated that some fuel loss on a fuel delivery mission could occur, 
and fuel loss of up to five percent was acceptable. But fuel loss of greater than five 
percent would result in a failed mission, no pay, and a charge to the contractor for 
missing fuel. Subpart 5.10.5 stated: 
The Contractor shall be financially liable for missing and/or 
contaminatedfuel at the rate of AFN 737 per gallon. The 
Contractor will be charged a maximum of AFN 3,685,000 for 
5,000 gallon fuel tanker missions and a maximum of AFN 
7 ,3 70,000 for I 0,000 gallon fuel tankers missions. Fuel 
losses of up to five percent (5%), due to evaporation and all 
other reasons (including inaccuracy of measurement) are 
acceptable. Fuel missions with losses exceeding 5% are 
considered a failed mission. This 5% allowance is not 
applicable to instances when the entire load is missing; the 
Contractor will be held liable for 100% of the fuel uploaded. 
If there is fuel remaining in the tanker after download, the 
Contractor must return all remaining fuel to the location 
designated by the USG. 
(R4, tab I at 85) (Emphasis added) 
38. On 25 March 2012, RETC requested, and was granted, permission temporarily 
to report fewer than minimum assets available "until [RETC] figure[s] out the extent of 
the problems with our subs" (R4, tab 115 at 1048, tab 116 at 1052; tr. 1/72). Starting 
5 April 2012 and continuing for the next five months until its termination in September 
2012, RETC reported zero assets available for new missions (R4, tabs 167, 169; tr. 2/177, 
3/115, 120). 
39. Mr. Jordan 
denied knowledge of the fuel pilferage and blamed his lack of 
awareness on the government's slowness in preparing invoices, stating: 
10 

Due to not receiving of the invoices on time from our 
previous COR, RETC was not able to distinguish or aware of 
the pilferage problems with the sub contractors[.] 
(R4, tabs 115-16 at 1051-52) He testified that 
"the only way that I could track 
performance was by the comments from the Government," and reiterated that he did not 
know that TMRs had been falsified or that fuel was being pilfered until the government 
so informed him (tr. 3/40-42, 54). Apart from this testimony, which is conclusory, RETC 
provided 
no explanation of why it was unable to detect that its subcontractor had not been 
delivering fuel and was apparently stealing it. 
F. Failure to Meet Acceptable Quality Levels, Failure to Submit a Corrective 
Action Plan, and Submission of Allegedly-Falsified TMRs 
40. Thereafter RETC's performance problems snowballed. On 3 April 2012, the 
government issued a letter of concern for RETC's failure to achieve minimum quality 
standards (R4, tab 137). The PWS acceptable quality level (AQL) required the contractor 
to be available on time for upload for 90% of missions (R4, tab 1 at 93 ), and to submit 
90% of mission sheets to the government on time (id.). The government asserted that 
RETC failed to achieve either of these standards for certain suites and directed RETC to 
submit a corrective action plan by 10 April 2012 (R4, tab 137). 
41. On 4 April 2012, the government identified at least four fuel TMRs submitted 
by RETC that the government suspected had been forged or altered to indicate, 
inaccurately, that an amount of fuel above the 95% acceptable threshold had been 
delivered (R4, tab 140; tr. 2/163-64). 
G. RETC Excuses for Performance Deficiencies 
42. Mr. Jordan testified that the government was to blame for RETC's failure to 
meet RSDs and for fuel losses. According to him, government holding yards were too 
small to accommodate the volume of delivery trucks. If a holding yard was too full to 
enter, the driver was unable to obtain a snapshot at the required time and location to meet 
the RSD. The mission would be recorded as "no pay" or "failed mission." (Tr. 3/69-70) 
Mr. Jordan also asserted that the government caused fuel loss by making trucks wait for 
days to download. While waiting, the driver "had to run the trucks to stay cool or stay 
warm .... That mean[t] burning of fuel." The truck would be ''out of compliance" with 
the fuel requirement, resulting in a backcharge 
to RETC for missing fuel and the mission 
treated as a "no pay" or "partial pay." (Tr. 3170-71) 
43. This testimony is unconvincing for three reasons. First, it is self-serving 
and RETC has not directed us to corroborating evidence. Second, we cannot credit 
Mr. Jordan's assertions as to RETC drivers' conduct during missions because Mr. Jordan 
11 

admitted that he was unable to monitor his drivers. He testified that "the only way that I 
could track performance was by the comments from the Government." (Tr. 3/40-42) 
Third, government testimony established that RETC had avenues available 
to it to redress 
these problems (tr. 3/139-40). 
H. 4 April 2012 Meeting with the Contracting Officer and Third Suspension 
44. On 4 April 2012, Mr. Jordan again met with government 
representatives 
including CPT Guess and L TC Gosline (R4, tab 141; tr. 1185-86, 3/45-46). 
45. LTC Gosline recalled that the meeting "essentially culminated to the point 
where [RETC] wanted to know how they could be terminated from the contract" 
(tr. 1/86). CPT Guess concurred (tr. 21174). Mr. Jordan testified that he "wanted to talk 
to them about options for RETC .... They told me the process that would occur ifl didn't 
continue to perform. They told me what I would have to do in order to stop that process 
of default determination and what would happen if I didn't." (Tr. 3/46-48) 
46. Shortly after the 4 April 2012 meeting,7 RETC sent a letter announcing that 
"RETC is cancelling our contract." The letter stated in pertinent part: 
RETC is cancelling our contract WlB4N-l l-D-7001 
SUITE 1- BULK FUELS SUBCLIN-OOlAA, SUITE 2-DRY 
CARGO SUBCLIN-OOOIAB, AND SUITE 3 HEAVY 
CARGO SUBCLIN- OOOlAC effective May 3, 2012. 
RETC is cancelling contract W9 l B4N-l l-D- 7001 as per 
terms of the contract, RETC is providing 30 day advanced 
notice, so the contract will terminate May 3, 2012. 
(R4, tab 90) RETC explained that it "is terminating this contract due to the Government 
Body violating their agreement under PWS Part 6: Deliverables Descriptions (reference 
Technical Exhibit 2) section 6.6 Monthly Invoices." The letter detailed what RETC 
characterized as government violations and claimed financial harm, stating: 
RETC operated with no funds for services rendered due to no 
invoices to enter into WA WF for payment, 6 months of 
operation with over a $10 million USD investment and have 
no return on investment has placed RETC on the brink of 
Bankruptcy forcing RETC to have to terminate the contract 
7 The letter bears the date 4 March 2012, but witnesses from both parties testified that 
that date was in error. We find that that the letter was received after the 4 April 
2012 meeting. (Tr. 1/87, 3/26; R4, tab 90) 
12 

for W91B4N-l 1-D-7001 for convenience of the USG and its 
valuable cargo due to the inability to continue to operat[ e] 
contract W91B4N-1 l-D-7001 with depleted funds and give 
the USG the standard Performance required by the contract. 
RETC promised to complete existing missions, stating: 
(R4, tab 90) 
RETC understands that a 24 Hour Operation and all standards 
of the PWS must be adhered to until the finale issued TMR 
currently operating a mission is completed and turned into 
COR for review and issue on Finale invoice submitted into 
WAWF. 
47. On 5 April 2012, the government suspended RETC for the third time and 
rescinded RETC's permission to report minimal assets. The government directed that 
RETC submit a corrective action plan by 19 April 2012. (R4, tabs 141, 146) 
48. Instead of submitting a corrective action plan, RETC inquired "[w]hen will 
RETC receive letter of default for this contract?'' The government replied as follows: 
Basically there are two courses of action: 
1) If RETC cannot, or chooses not to, submit a [corrective 
action plan] by 19 April, procedures for proceeding 
towards termination will then [be] initiated, which will 
include a cure notice or show cause notice. 
2) RETC may submit a corrective action plan (CAP) by the 
suspense date listed in the letter. If the CAP is accepted, 
RETC would be removed from suspension and would be 
required to report assets at that time, and could continue 
work. If RETC fails to report adequate assets at that time, 
procedures for proceeding towards termination will be 
initiated, which will include cure notice or show cause 
notice. 
13 

In either case, it is the discretion of RETC as to the course of 
action to take. 
(R4, tab 143 at 1459) 
49. The government asserts that RETC did not submit a corrective action plan in 
response to the 4 April 2012 notice (tr. 11101). RETC does not contend otherwise. We 
find that RETC did not submit this corrective action plan. 
I. Submission of Additional Documents that the Government Believed were Forged 
50. On 20 April 2012, the government identified at least four more TMRs 
submitted by RETC that the government suspected had been 
altered or forged (R4, 
tab 165). 
51. In May 2012, RETC submitted a memorandum purportedly signed by a 
military officer stating that the MRAP accident was not RETC's fault (R4, tab 179). The 
government believed this memorandum had been fabricated, in part because the 
investigator "could not find any proof' of the existence of the author, and because of 
irregularities in the memorandum 8 (id.; tr. 2/96-97). 
III. Cure Notice and Termination 
52. On 24 April 2012, the government issued a cure notice to RETC, stating that 
its '"overall lack of compliance and failure to perform" were "conditions that are 
endangering the performance of the contract." The "conditions" included fuel and cargo 
pilferage; RETC's submittal of documents that the government characterized as 
"fraudulent" or "forged"; RETC's failure to report adequate minimum assets; its driver's 
error resulting in government property damage; and what the government characterized 
as RETC's expression of a desire "to be removed from the contract." The notice stated 
that "[ u ]nless the above described conditions are cured within ten (10) days of 
receipt of this notice, the Government may terminate for default in accordance with 
[FAR 52.212-4(m)]." (R4, tab 170; tr. 1/99-100) 
8 The memorandum stated that "due to Military negligence" the mission "resulted in 
damage of the vehicle; the carrier is not responsible for damages." The 
memorandum identified the point of contact as "IL T Williams" at 
"William.leonard@afghan.swa.army.mil," and was signed "Williams Leonard." 
(R4, tab 179 at 1871) 
14 

53. RETC acknowledged receipt on 24 April 2012, but otherwise did not respond 
to the cure notice (R4, tab 171at1667; tr. 1/100, 127, 3/121). 
54. Mr. Jordan asked the government "ifRETC responded to the Cure Notice and 
we provided the documentation requested in the Cure Notice, if we would have to 
immediately start performing under all three suites again." The answer was yes. Then 
he 
asked "if RETC does not respond to the Cure Notice, what would be the result of that." 
He was informed that the government "would start preparing to terminate [RETC] from 
the contract." (Tr. 3/58) 
55. Mr. Jordan discussed it with the owners of RETC and together they 
determined not to respond to the cure notice, reasoning as follows: 
By answering the Cure Notice that would mean that I needed 
to have fuel trucks available. I didn't have the funds, we 
hadn't been paid, I didn't have the funds to continue. So I 
couldn't hire a new Suite 1 subcontractor. If I addressed and 
I answered the Cure Notice then I would have to continue on 
dry and heavy and I didn't have the funds to pay them to 
continue. We had already depleted all of our funds over a 
year's time. 
We couldn't come up with any other funding in any other 
manner, so the only thing that I could do without putting 
anymore US cargo in jeopardy of being lost, I did not respond 
to the Cure Notice. 
(Tr. 3/58-59) We infer that the reason RETC elected not to respond to the cure notice is 
that it wished to be terminated. As noted above, for the remainder of its contract, RETC 
reported zero assets available (finding 38). 
56. Ms. Efstathia Fragogiannis took over as contracting officer in June 2012. She 
determined to terminate RETC for cause. (Tr. 11122, 124-29) 
57. On 15 September 2012, she issued to RETC a notice terminating the contract 
for cause. The notice cited the following reasons: (1) previous letters of concern and 
suspensions; (2) RETC's failure to comply with super lowboy requirements; (3) pilferage 
of a government container while being transported by RETC and alleged forgery of the 
TMR by an "unknown" person; ( 4) RETC 's request to report minimal assets due to 
"excessive pilferage" of fuel; ( 5) RETC' s failure to achieve minimum acceptable quality 
15 

thresholds for certain requirements from September to December 2011; (6) RETC's 
correspondence stating that it was canceling the contract~ (7) the accident that damaged a 
government MRAP being transported by RETC; (8) RETC's submission of TMRs that 
the government believed had been altered or forged; (9) RETC's failure to submit a 
corrective action plan in response to the government's concerns; and (10) RETC's failure 
to submit a response to the cure notice or to cure the underlying concerns. (R4, tab 246) 
58. On 15 September 2012, the contracting officer executed contract Modification 
No. POOO 10, terminating the contract for cause under FAR 52.212-4(m) (R4, tab 245). 
IV. Claims and Appeals 
59. On 12 November 2012, RETC submitted to this Board an appeal from the 
contracting officer's decision to terminate the contract for cause. The appeal was 
docketed as ASBCA No. 58383. 
60. By letter dated 6 February 2013, RETC submitted a certified claim to the 
contracting officer in the amount of$5,763,180 alleging that the government breached 
the contract. RETC alleged that the government: 
[B ]reached its duty of good faith, fair dealing and the duty to 
cooperate and not interfere in RETC's performance by failing 
to properly administer the contract, by failing to heed RETC' s 
clarion calls for assistance, by failing to pay RETC as 
required by the contract, and by failing to provide 
commercially practicable contractual requirements and by 
improperly terminating the contract for cause rather than for 
convenience. 
(Supp. R4, tab 356) 
61. By 12 April 2013, no contracting officer's final decision regarding the claim 
had been issued, and RETC filed a notice of appeal from a deemed denial of the claim. 
The appeal was docketed as ASBCA No. 58619. On 14 April 2013, the contracting 
officer issued a written final decision denying RETC's claim. (Supp. R4, tab 357) On 
15 April 2013, RETC filed its notice of appeal of the contracting officer's final decision 
to deny its breach of contract claim. The appeal was docketed as ASBCA No. 58620. 
The appeals were consolidated (Bd. corr. !tr. <ltd. 15 April 2013). 
62. We expressly do not make any findings nor otherwise address whether or not 
RETC engaged in fraud, nor do we determine whether or not any documents were forged 
or falsified. 
16 

DECISION 
We address first the termination for cause in ASBCA No. 58383, then the appeals 
denying RETC's claim for breach of contract in ASBCA Nos. 58619 and 58620. For the 
reasons explained below, we deny the appeals and sustain the government's default 
termination. 
I. ASBCA No. 58383: Termination for Cause 
The termination in this appeal is governed by FAR 52.212-4(m), CONTRACT 
TERMS AND CONDITIONS-COMMERCIAL ITEMS (JUN 2010) (finding 3). The principles 
that apply under the FAR clauses that govern termination for default apply with equal 
force to terminations for cause under this clause. Genome-Communications, ASBCA 
Nos. 57267, 57285, 11-1 BCA ~ 34,699 at 170,889; General lnjectables & Vaccines, 
Inc., ASBCA No. 54930, 06-2 BCA ~ 33,401at165,593, ajf'd, 519 F.3d 1360, 
supplemented, 527 F.3d 1375 (Fed. Cir. 2008). 
Accordingly, the government bears the burden to prove that its termination was 
justified. Lisbon Contractors, Inc. v. United States, 828 F.2d 759 (Fed. Cir. 1987); New Era 
Contract Sales, Inc., ASBCA No. 56661 et al., 11-1BCA~34,738 at 171,022. If the 
government establishes a prima facie justification for termination, the burden shifts to the 
contractor to prove the default was excusable. ADT Constr. Grp., Inc., ASBCA No. 55358, 
13 BCA ~ 35,307 at 173,312 (citing Empire Energy Management Systems, Inc., ASBCA 
No. 46741, 03-1BCA~32,079 at 158,553). 
A. The Government Established a Prima Facie Justification for the Termination 
FAR 52.212-4(m) allows the government to terminate for cause for any one of 
three reasons: (I) default by the contractor~ or (2) failure of the contractor to comply 
with contract terms and conditions; or (3) failure to provide the government, upon 
request, with adequate assurances of future performance (finding 3 ). The government 
established a prima facie basis to terminate on all three grounds. 
First, the government established a prima facie basis for default by anticipatory 
repudiation. To demonstrate an anticipatory repudiation, the government must show 
appellant "communicated an intent not to perform in a positive, definite, unconditional 
and unequivocal manner, either by (I) a definite and unequivocal statement by the 
contractor that it refused to perform or (2) actions which constitute actual abandonment 
of performance." Production Services & Technology, Inc., ASBCA No. 53353, 02-2 
17 

BCA ii 32,026 at 158,293 (quoting Jones Oil Co., ASBCA No. 42651 et al., 98-1 BCA 
ii 29,691 at 147,150). 
Through its words and deeds, RETC communicated an intent not to perform. 
Its 4 April 2012 letter notified the government that 
"RETC is cancelling contract 
W9 l B4N-l l-D-700 I" and "the contract will terminate May 3, 2012," which were 
definite, unconditional, and unequivocal statements that RETC refused to perform 
(finding 46). As such, they constituted a primafacie basis for default by anticipatory 
repudiation. United Healthcare Partners, Inc., ASBCA No. 58123, 16-1BCAii36,374; 
Highland Al Hujaz Co., ASBCA No. 58243, 16-1 BCA ii 36,336. Similarly by reporting 
zero available assets from 4 April 2012 onward, RETC communicated an intent not to 
perform (finding 38). With no assets available, RETC could not be assigned new 
missions. Because the contract required RETC to maintain a minimum number of assets 
(finding 6), RETC's reporting of zero assets also constituted a primafacie failure to 
comply with contract terms and conditions, which is a separate basis for termination for 
cause (finding 3). 
RETC argues it did not repudiate the contract, and characterizes its 4 April 2012 
letter as a proposal that the government terminate the contract for convenience. It argues 
that it did not abandon performance because it continued to complete missions assigned 
prior to its 4 April 2012 letter. (App. hr. at 13) 
These arguments are without merit. RETC's 4 April 2012 letter does not indicate 
that it is a proposal; it unequivocally states that RETC "is cancelling our contract" 
(finding 46). That RETC continued to complete previously-assigned 
missions is of no 
moment. It continued to report zero assets available, making it unavailable for new 
missions (finding 38). This constitutes a refusal to perform in the future, which is a 
default by anticipatory repudiation. Free & Ben, Inc., ASBCA No. 56129, 11-1 BCA 
ii 34,719; DK's Precision Machining & Mfg., ASBCA No. 39616, 90-2 BCA ii 22,830. 
Moreover, RETC's attempt to recast its behavior as a proposal for a convenience 
termination cannot be reconciled with its contemporaneous conduct. In April 2012, 
after its third suspension, RETC asked when it would receive the "letter of default" 
(finding 48). Informed that termination would ensue if it failed to submit a corrective 
action plan, RETC did not submit a corrective action plan (finding 49). RETC behaved 
exactly as if it wanted a "letter of default." 
Finally, the government established a primafacie basis to conclude that RETC 
failed to provide adequate assurances of future performance when such assurances were 
requested. The government issued a cure notice on 24 April 2012, giving RETC ten days 
to cure conditions the government said were "endangering the performance of the 
contract" (finding 52). RETC did not respond to the cure notice (finding 53). RETC's 
failure to respond to the cure notice constituted a failure to provide the government, upon 
request, with adequate assurances of future performance. See Danzig v. AEC Corp., 224 
18 

F.3d 1333, 1338 (Fed. Cir. 2000) (holding that inadequate response to cure notice did not 
satisfy contractor's obligation to provide assurance of timely completion). 
B. RETC's Asserted Excuses Do Not Excuse its Default 
The government having established a prima facie basis for the termination for 
cause, the burden shifts to RETC to prove its default was excusable. RETC makes 
several arguments. 
1. The Government Did Not Breach the Contract 
First, RETC contends that the government materially breached the contract by 
unilaterally changing the contract's invoicing procedures. RETC asserts that "the 
contract originally required" that RETC prepare its own invoices, but claims the 
16 October 2011 Memorandum for the Record (MFR) directed that the government, 
rather than contractors, would prepare invoices. (App. br. at 12) 
We reject this argument because the contract did not confer on RETC the right 
unilaterally to prepare its own invoices. Two contract provisions are relevant: PWS 
Subpart 6.6 and Paragraph K. PWS 6.6 addressed invoice submission, stating that "[t]he 
Contractor shall provide an invoice to the USG monthly" (emphasis added). It did not 
address how invoices were to be prepared, or who was to prepare them. (Finding 13) 
Paragraph K addressed invoice preparation, but did not confer a right on RETC to 
prepare its own invoices. Rather, it directed RETC to coordinate with the government in 
the preparation of invoices. (Finding 12) 
Next, RETC contends that the government materially breached its duty of good 
faith and fair dealing by causing delays in the preparation of invoices. RETC claims 
these delays in turn caused its performance problems because RETC was unable to pay 
subcontractors, and unable, without the government's draft invoices, to detect that its 
subcontractor had been pilfering fuel (app. br. at 11-12). 
We note that "[ e ]very contract imposes upon each party a duty of good faith and 
fair dealing in its performance and enforcement." SIA Construction, Inc., ASBCA 
No. 57693, 14-1 BCA iJ 35,762 at 174,986 (citing Metcalf Construction Co. v. United 
States, 742 F.3d 984, 990 (Fed. Cir. 2014)). The implied duty of good faith and fair 
dealing is limited by the original bargain: it prohibits acts or omissions that, though not 
proscribed by the contract expressly, are inconsistent with the contract's purpose and 
deprive the other party of the contemplated value. See First Nationwide Bank v. United 
States, 431 F.3d 1342, 1350 (Fed. Cir. 2005) (duty was breached by legislation that 
"changed the balance of contract consideration"). When the government is accused of 
breaching the duty of good faith and fair dealing, we examine the reasonableness of its 
19 

actions, considering all of the circumstances. Free & Ben, Inc., ASBCA No. 56129, 09-1 
BCA ~ 34,127 at 168,742. 
The government acted reasonably and did not breach its duty of good faith and 
fair dealing. The government tried to coach RETC on how to prepare submissions 
(finding 29), and met with RETC's program manager to discuss invoicing problems 
(finding 35). Rather than delay or deny some pay requests, the government allowed 
RETC to "roll over" problematic TMRs to 
the next month, to allow more time for RETC 
to obtain supporting documents (finding 30). 
To the extent there were delays in invoice preparation, RETC was primarily if not 
entirely at fault because it submitted late, incomplete, inconsistent, and inaccurate 
supporting documentation (findings 29, 32). RETC conceded that it submitted at least 
one TMR that had been forged by its subcontractor (finding 24), and the government 
doubted the authenticity of many other RETC submissions (findings 27, 36, 41, 50). At 
least some delay was attributable to the additional investigation required to authenticate 
RETC submissions (finding 31). The contract entitled the government to suspend 
payment while investigating "suspected fraudulent or altered" TMRs (finding 10). 
Moreover, even if payments were delayed, RETC was still required to perform. A 
contractor is ordinarily responsible to provide sufficient financial resources for the 
performance of the contract; its financial incapacity is not a legitimate excuse for its 
failure to perform. See Danzig, 224 F.3d at 1339; TGC Contracting Corp. v. United 
States, 736 F.2d 1512, 1515 (Fed. Cir. 1984); Cosmic Constr. 88-2 BCA ~ 20,623. A 
government failure to satisfy a payment obligation can excuse nonperformance ifthe 
nonpayment was a "controlling cause" of the contractor's failure to perform. E.g., 
Cosmic Constr., 88-2 BCA ~ 20,623 at 104,242. That has not been shown here, because 
RETC has failed to prove that the government's delays, rather than RETC's own errors, 
caused RETC's performance problems (findings 32-33). 
We are likewise unconvinced that invoicing delays prevented RETC from 
detecting that its subcontractor was stealing fuel. The only evidence that RETC offered 
on this point was the conclusory assertion of its program manager that "the only way that 
I could track performance was by the comments from the Government." (Finding 39; 
app. br. at 7-8, 12). No explanation was given as to why RETC was unable to detect its 
subcontractor's misconduct without government input (finding 39). 
2. RETC Offers No Basis to Excuse its Performance Deficiencies 
Finally, RETC argues that its performance deficiencies cited in the termination 
notice should be excused. It argues that two deficiencies - its failure to comply with the 
super lowboy specification and the theft of a government container and related 
submission of an allegedly-altered TMR - were corrected and should not be grounds for 
20 

submission of an allegedly-altered TMR - were corrected and should not be grounds for 
termination. RETC contends that three problems - the MRAP accident, RETC's failure 
to satisfy quality thresholds, and RETC's submission of additional TMRs that had 
allegedly been altered -were not its fault. (App. br. at 12-15) 
Even if these performance deficiencies could be excused, it would not alter our 
holdings that RETC repudiated the contract, failed to comply with contract requirements, 
and failed to provide reasonable assurances of its future performance. 9 These 
deficiencies are grounds for a termination for cause under the termination provisions of 
FAR 52.212-4(m), regardless of any other performance failures. 
In any event, in all but one instance 10, RETC's attempts to excuse its deficiencies 
are unavailing. The government reasonably concluded that the MRAP accident was 
RETC's fault, based upon the investigative finding that the accident occurred as a result 
of either driver error or mechanical failure, and RETC contemporaneously did not dispute 
this finding (findings 20-22). RETC's excuses for its failure to meet the PWS quality 
standards are unpersuasive (findings 42-43). Finally, RETC has not carried its burden to 
demonstrate that it should be excused for its subcontractors' thefts nor for a submission 
of a TMR that it concedes was forged by its subcontractor (findings 24, 36, 39). 
Accordingly, we sustain the government's termination for cause and deny RETC's 
appeal in ASBCA No. 58383 (findings 62-63). 
II. ASBCA Nos. 58619 and 58620: Breach of Contract 
Next we address RETC's appeals in ASBCA Nos. 58619 and 58620. Both 
appeals relate to the same claim. The appeal from a deemed denial was designated 
ASBCA No. 58619, while the appeal from the contracting officer's written decision 
denying that claim was designated ASBCA No. 58620 (finding 
61). 
In its claim, RETC contends that the government breached its duty of good faith 
and fair dealing by failing to properly administer the contract, failing to heed calls for 
assistance, failing to pay as required by the contract, failing to provide commercially 
practicable contract requirements, and improperly terminating the contract for cause 
rather than for convenience (finding 60). These contentions are the same as those raised 
in RETC's challenge to the termination for cause; indeed, similarly mentioned in 
9 It is not necessary to reach the question of whether RETC submitted false or fraudulent 
documents in support of payment, and we expressly do not do so (finding 62). See 
Laguna Construction Company v. Carter, 828 F.3d 1364 (Fed. Cir. 2016). 
10 RETC appears to have resolved the government's concern regarding its compliance 
with the super lowboy requirement by its submission of an acceptable corrective 
action plan (finding 19). 
21 

RETC's post-hearing brief and reply brief, no additional arguments have been presented 
in support of its claim that were not presented in defense of the termination. 
We have already addressed, and rejected, RETC's arguments in the context of the 
termination. Accordingly, these appeals are denied. 
The appeals are denied. 
Dated: 12 October 2017 
I 
concur 
CKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
x ~~ 
DIANA S/DICKINSON 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
CONCLUSION 
22 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
OWEN C. WILSON 
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. 58383, 58619, 58620, 
Appeals of Rashed Elham Trading Company, rendered in conformance with the Board's 
Charter. 
Dated: 
23 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals