Alfajer, Ltd.
Docket: ASBCA 62125
Decision date: 2023-10-20

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT ON THE 
GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT 
 
 This appeal pertains to a dispute between the United States Army (the 
government or the Army) and Alfajer, Ltd (Alfajer or appellant) concerning Blanket 
Purchase Agreement No. W91B4N-18-A-5006 (the BPA), to provide the lease of 
Material Handling Equipment (MHE) depending on the requirements set forth in 
individual performance work statements (PWS).  Specifically, the dispute involves Call 
Order No. W91B4N-19-F-5034 (the call order or the contract) which required appellant 
to provide specific types of heavy equipment for six months.  The government filed a 
motion for summary judgment which appellant opposed.  Because of the terms of the 
contractual documents and the sovereign act defense, we grant the government’s motion 
for summary judgment. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
1.  On August 8, 2018, the government entered into the BPA with appellant 
(R4, tab 2). 
 
2.  The BPA incorporated by reference Federal Acquisition Regulation (FAR) 
52.212-4, CONTRACT TERMS AND CONDITIONS--COMMERCIAL ITEMS 
(JAN 2017) (R4, tab 2 at 114). 
 
3.  The BPA included DFARS 252.225-7995, CONTRACTOR PERSONNEL 
PERFORMING IN THE UNITED STATE CENTRAL COMMAND AREA OF 
Appeal of - )  
 )  
Alfajer, Ltd. ) ASBCA No. 62125 
 )  
Under Contract No. W91B4N-18-A-5006 )  
   
APPEARANCE FOR THE APPELLANT: Walt Pennington, Esq. 
  Pennington Law Firm 
  San Diego, CA 
 
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. 
    Army Chief Trial Attorney 
 MAJ James S. Kim, JA 
Dana J. Chase, Esq. 
    Trial Attorneys 

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RESPONSIBILITY (DEVIATION 2017-O0004) (SEP 2017).  This clause defined 
“contractors authorized to accompany the force” (CAAF) and non-CAAF contractor 
personnel:   
 
Government-furnished support to non-CAAF is typically 
limited to force protection, emergency medical care, and 
basic human needs (e.g., bottled water, latrine facilities, 
security, and food when necessary) when performing their 
jobs in the direct vicinity of U.S. Armed Forces. 
 
(DFARS 252.225-7995(a); R4, tab 2 at 124-25) (emphasis added) 
 
 In contrast, the support the government provided to CAAF personnel generally 
included security on the base, on-base housing, emergency medical and dental care, 
and travel with United States personnel.  The government required all  
government-provided support for CAAF personnel to be included in a general letter 
of authorization signed by the contracting officer (CO) and that the CAAF individual 
was required to carry at all times during a deployment.  (DFARS 252.225-7995; R4, 
tab 2 at 124-26)  The clause also stated “[c]ontract performance in USCENTOM AOR 
may require work in dangerous or austere conditions.  Except as otherwise provided in 
the contract, the Contractor accepts the risks associated with required contract 
performance in such operations” (DFARS 252.225-7995(b); R4, tab 2 at 125). 
 
 The clause allowed the Combatant Commander to provide security for any 
personnel, CAAF or non-CAAF.  For this to occur, the Combatant Commander was 
required to decide providing such support is in the best interest of the government 
because “(A) The Contractor cannot obtain effective security services; (B) Effective 
security services are unavailable at a reasonable cost; or (C) Threat conditions 
necessitate security through military means” (DFARS 252.225-7995(c)(1)(i); R4, tab 2 
at 125).  If the Combatant Commander made such a determination, “the Combatant 
Commander may provide security through military means, commensurate with the 
level of security provided DoD civilians.”  (DFARS 252.225-7995(c)(1)(ii); R4, tab 2 
at 125) 
 
4.  The BPA included DFARS 252.225-7997, CONTRACTOR 
DEMOBILIZATION (DEVIATION 2013-O00017) (AUG 2013).  This did not 
establish any specific timeframe for demobilization.  Instead, it required appellant 
to submit a demobilization plan 120 calendar days prior to the end of the contract.  (R4, 
tab 2 at 131-32)  However, because the contract was both of short duration and was 
modified to reduce work and deobligate funds, there was not enough time for the 
submission of a demobilization plan 120 days before contract expiration.  The call order 
did not address demobilization at all (R4, tab 4). 
 

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5.  On December 3, 2018, the government issued the call order to appellant 
whereby appellant agreed to provide material handling equipment to Forward 
Operating Base (FOB) Thompson, Afghanistan, for six months (R4, tab 4).  The call 
order incorporated all of the clauses and terms and conditions of the BPA (id. 
at 000160).  The PWS of the call order included language about security requirements, 
stating, “[t]he Contractor is required to provide his own security to escort all the MHE 
upon the initial delivery to [FOB] Thompson, and the final retrieval of the MHE from 
[FOB] Thompson upon contract completion/expiration” (R4, tab 4a at 000171). 
 
6.  On December 15, 2018, Alfajer’s personnel attempted to deliver equipment 
pursuant to the call order.  While en route, the Taliban confiscated a forklift and 
kidnapped the driver of a transportation company appellant hired.  Alfajer asked the 
government to allow additional time for mobilization.  The government approved the 
request.  The equipment was delivered in January 2019.  Appellant was granted 
approximately 40 days to deliver the equipment.  (App. resp. at 5, 12; gov’t mot. at 6) 
 
7.  On January 29, 2019, the government directed appellant to remove some of 
its equipment by February 1, 2019, and the remainder by February 4, 2019 (R4, tab 8 
at 204).  The government required this date because it anticipated that the base would 
be completely closed and evacuated by February 6, 2019 (gov’t mot. at 8-9, ex. G-6  
¶¶ 4-5 (Affidavit of MAJ Matthew Boise)). 
 
8.  Appellant removed all equipment by February 7, 2019 (R4, tab 10  
at 211-212).   
 
9.  Appellant used a third-party transportation company to remove the 
equipment from FOB Thompson in three convoys.  The first one arrived safely in 
Herat.  The second one was hijacked in Kanisk.  The third one was moved to a secure 
location in Farah; however, appellant is no longer able to contact the individual who 
knew where the equipment was stored.  (Gov’t mot. at 9; app. SOF at 16) 
 
10.  Appellant’s employees were not granted CAAF status and were, instead, 
considered “non-CAAF” (gov’t mot., ex. G-2 ¶ 3 (Declaration of Benjamin Wells); 
app. SOF at 2 (undisputed)).  
 
11.  Appellant did not request to carry arms (gov’t mot. at 5; app. SOF at 5). 
 
12.  Appellant was aware that hijackings were common in Afghanistan 
according to sworn testimony provided at a deposition by Alfajer’s President and 
owner (gov’t mot., ex. G-1 at 24-25, 29).  Appellant was aware of which areas were 
safe based upon reports from other local nationals (gov’t mot., ex. G-3 at 23-26 
(Deposition of an Alfajer employee)).  Appellant was aware of security concerns since 
2012 that had gotten worse in 2018 (gov’t mot., ex. G-1 at 31).  Appellant was aware 

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that all of Afghanistan was dangerous and admitted, “[y]ou can’t work in Afghanistan 
unless you accept risk” (gov’t mot., ex. G-1 at 141-42).∗  Accordingly, it is undisputed 
that appellant knew security was an issue in Afghanistan at the time of the BPA 
solicitation, BPA award, and the call order execution. 
 
13.  Appellant requested that the government “at least keep the contract for 
45 more days” so that the government could “use the MHE as [it] wish[ed] and 
[appellant could] be reimbursed for [its] costs” (R4, tab 9 at 206).  In the alternative, 
appellant requested “a couple of weeks” to remove the equipment because removing 
such a large amount of vehicles “can draw a lot of security issues” (id.).  The 
government asserted and appellant did not dispute that appellant never requested 
government-furnished security (gov’t mot., ex. G-1, at 38, 83; see also app.  
SOF ¶ 4 (disputing fact 7 but stating that appellant requested additional days to 
demobilize rather than disputing that appellant failed to request government-furnished 
security)).  It is undisputed that appellant requested additional days to demobilize but 
did not at any time during performance of the call order request that the government 
provide government-furnished security. 
 
14.  It is undisputed that the Combatant Commander did not receive a request 
for government-furnished security and thus did not analyze or determine that appellant 
required such security (gov’t mot. at 4; app. SOF at 3). 
 
15.  On February 26, 2019, the parties executed a bilateral contract modification 
that covered a number of items.  First, it changed CLINs 0001 through CLINs 0010 to 
decrease the time to demonstrate the time the items had been leased and updated the 
delivery schedule for those line items.  Second, it deobligated CLIN 0011.  Third, it 
added CLIN 0012 to pay demobilization costs in the amount of $160,002.  Finally, it 
deobligated the remaining unused funds.  (R4, tab 15 at 245-47)  No release of claims 
was included in the modification. 
 
16.  On February 12, 2019, appellant filed a claim with the CO for the theft of 
the equipment (R4, tab 18 at 290-91).  On April 8, 2019, the CO signed the 
Contracting Officer Final Decision denying the claim (R4, tab 19).  On May 23, 2019, 
 
∗ Appellant’s counsel technically stated that it disputed the admission of knowledge of 
security problems and complains in its statement of facts that he could not find 
the references in the government’s exhibits.  However, the Board found the 
cited material with ease.  Regarding the three volumes of exhibit G-1, the pages 
are numbered sequentially for all three volumes, starting after the end of the 
numbers for the prior volume.  For both exhibits G-1 and G-3, the government 
provides pinpoint citations.  It is unclear to the Board what more appellant 
thought the government was required to do to make the citation clearer or more 
appropriate. 

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the final claim determination was emailed to appellant which appellant acknowledged 
on May 30, 2019 (R4, tab 20).  On July 5, 2019, appellant filed an appeal with the 
Board and it was docketed as ASBCA No. 62125. 
 
17.  Appellant’s appeal lists four counts:  I) breach of contract; II) breach of the 
implied covenant of good faith and fair dealing; III) superior knowledge doctrine; and 
IV) quantum valebant (compl. at 4-8).  The government previously moved to dismiss 
Count IV for lack of jurisdiction, which the Board granted.  Alfajer, Ltd., ASBCA  
No. 62125, 20-1 BCA ¶ 37,660. 
 
18.  In its complaint, appellant alleged that there was an implied duty of good 
faith on the part of the government to provide safe passage for Alfajer and that the 
government was required to protect people and keep them from getting kidnapped 
(compl. at 6).   
 
19.  The parties completed briefing on the government’s motion for summary 
judgment.  In its response, appellant solely addressed its assertion that the government 
failed to perform its implied duty of good faith and fair dealing, or Count II of 
its complaint.  Appellant failed to respond to any of the government’s arguments for 
Counts I and III of appellant’s complaint.  Appellant also failed to respond to the 
government’s argument that the act of closing the base was a sovereign act.  We 
consider appellant’s failure to address Counts I and III as abandoning them.   
 
THE PARTIES’ POSITIONS 
 
 In its motion, the government requests summary judgment for three reasons and 
requests the Board deny Counts I through III of appellant’s complaint, thereby 
disposing of the counts remaining in the subject appeals.  First, the government argues 
that the order to close FOB Thompson was a sovereign act that precluded recovery for 
appellant.  Second, the government argues that appellant’s lost property due to the lack 
of security was a risk appellant assumed when it accepted the contract.  Third, the 
government argues the terms of the BPA and call order do not provide any entitlement 
for appellant to recover.  (Gov’t mot. at 1-2) 
 
 In its brief response, appellant broadly alleges there are genuine issues of 
material fact, without citing to the record to demonstrate those issues, and argues the 
government breached its implied contractual duties of good faith and fair dealing (app. 
resp. at 7).  Appellant applies great weight to the fact that Alfajer was granted 
approximately 40 days to mobilize in determining the appropriate amount of time to 
demobilize (id. at 12) (stating “[s]ince it was the [g]overnment that changed and raised 
the risk by decreasing the transport time from 40 days to less than three, it should have 
been the [g]overnment that made the offer to provide security.”). 

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 In its reply, the government argued that appellant failed to dispute the 
government’s defenses or abandoned most of appellant’s own posited claims.  
Specifically, “appellant provided some commentary relevant to the assumption of risk 
defense” but that “it utterly and completely avoids—and failed to respond to—the fact 
that the government’s order to depart the contract site was based on a sovereign act—
closure of the base.”  (Gov’t reply at 1)  Thus, the government concluded that 
appellant did not dispute the government’s defense.  Further, the government argues 
that the criminal acts of another party were the proximate cause of the loss, not any 
actions by the government, which is particularly important when appellant did not 
dispute the sovereign act defense (id. at 1-2).  Finally, the government argues that 
appellant only addressed its claim that the government breached its implied contractual 
duties of good faith and fair dealing, abandoning all other claims (id. at 2). 
 
DECISION 
 
1.  SUMMARY JUDGMENT STANDARD 
 
 Summary judgment is proper if the record and pleadings demonstrate that there 
are no genuine issues of material fact and that the moving party is entitled to judgment 
as a matter of law.  Alabama v. North Carolina, 560 U.S. 330, 344 (2010) (citing FED. 
R. CIV. P. 56(c)); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).  “The moving 
party bears the burden of establishing the absence of any genuine issue of material 
fact, and all significant doubt over factual issues must be resolved in favor of the party 
opposing summary judgment.”  Chugach Fed. Solutions, Inc., ASBCA No. 61320, 
20-1 BCA ¶ 37,617 at 182,594 (citing Mingus Constructors, Inc. v. United States, 
812 F.2d 1387, 1390-91 (Fed. Cir. 1987)).  To defeat a motion for summary judgment, 
a non-moving party must set forth sufficient facts to demonstrate that a genuine issue 
of material fact exists.  AXXON Int’l, LLC, ASBCA No. 61224 et al., 20-1 BCA 
¶ 37,489 at 182,144 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 
(1986)).  “A genuine issue of material fact arises when the nonmovant presents 
sufficient evidence upon which a reasonable fact finder, drawing the requisite 
inferences and applying the applicable evidentiary standard, could decide the issue in 
favor of the nonmovant.”  C. Sanchez & Son, Inc. v. United States, 6 F.3d 1539, 
1541 (Fed. Cir. 1993).  When considering motions for summary judgment, the 
evidence produced by the non-moving party is to be believed and all justifiable 
inferences are drawn in its favor.  Europe Asia Constr. Logistic, ASBCA No. 61553, 
19-1 BCA ¶ 37,267 at 181,351 (citing American Boys Constr. Co., ASBCA  
No. 61163, 18-1 BCA ¶ 36,949 at 180,051). 
 
 While we must believe the evidence produced by the non-moving party and 
draw inferences in its favor, “the non-moving party responding to a motion for 
summary judgment must oppose the motion with citations to record evidence sufficient 
to establish that there is a dispute regarding a material factual issue—that is, a fact 

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essential to proving or disproving a claim.”  Odyssey Int’l, Inc., ASBCA Nos. 62062, 
62279, 21-1 BCA ¶ 37,902 at 184,071 (citations omitted, emphasis in original).  
“Conclusory statements and mere denials are not sufficient to ward off summary 
judgment.”  Cellular Materials Int’l, Inc., ASBCA No. 61408, 22-1 BCA ¶ 38,022 
at 184,646 (citing Mingus, 812 F.2d 1387 at 1390-91 (Fed. Cir. 1987)).  Further, 
allegations or mere statements by the non-moving party are insufficient.  Instead, “the 
non-moving party must cite record evidence demonstrating that there is a basis in the 
record to support the factual finding.”  Odyssey Int’l, 21-1 BCA ¶ 37,902 at 184,071.  
Further, this record evidence must be enough to support entry in favor of the 
non-moving party.  Id.  (Citing Liberty Lobby, 477 U.S. at 252). 
 
2.  APPELLANT FAILED TO PRODUCE EVIDENCE OF GENUINE ISSUES 
OF MATERIAL FACT 
 
 To prevail, appellant must provide record evidence that there is a dispute 
regarding a material fact, which it has failed to accomplish.  Here, except for 
appellant’s argument that the government breached its implied contractual duties of 
good faith and fair dealing, appellant failed to even address any of its own claims, 
much less the other arguments the government raised in its motion for summary 
judgment.   
 
While failing to address any of the government’s arguments, appellant failed 
to cite to the record with any evidence of a dispute.  In the handful of instances where 
appellant stated that a fact was disputed, it responded with mere argument without 
citation to the record, entirely irrelevant facts, or unrelated facts.  For example, for 
government fact no. 10, where the government stated a clause existed in the BPA 
concerning carrying weapons and what the BPA required to do so as well as an 
explanation of how the process worked, appellant responded disputed.  However, 
appellant cited to a question and answer in a deposition that did not dispute the cited 
fact, and instead was a quoted exchange of an ambiguous question, at best, and the 
deponent’s answer.  The question as quoted by appellant was, “Are you saying that, 
no, you’re not familiar with any request, or yes, your familiar with the requests [for 
weapons] and none were granted [sic]?”  The deponent answered “that is no to both” 
as described by appellant.  Appellant concluded by stating, “[i]mplied duties not to 
interfere with the benefits of the contract are not superseded by express contract 
terms.”  (App. SOF at 5)  Appellant did not actually dispute the fact the government 
presented, which was that the BPA included a clause and the process for that clause.  
Instead, the fact that appellant cited to dispute the government’s fact, that the deponent 
was not familiar with any requests made to the CENTCOM Commander, was not 
relevant to the fact that the clause and process existed.  Further, appellant’s statement 
about implied duties, which appellant peppered throughout its “disputed” facts (see 
app. SOF at fact nos. 2-3, 9-10, 28), was not relevant to the government’s fact and was 

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a mere statement by appellant.  Appellant’s response to fact 10 is one of many 
examples that demonstrate appellant’s failure to identify material facts in dispute. 
 
Further, appellant frequently stated one of the government’s facts was disputed 
simply because appellant could not find the page in the evidence; however, the Board 
had no issues finding the information as cited by the government.  Rather than being 
disputed, these were appellant’s apparent misunderstanding of the evidence or inability 
to understand the page numbering.  (See app. SOF at 7-8, 11)   
 
The few facts appellant listed as disputed facts after responding to the 
government’s facts were simply a handful of quotes from three deponents regarding 
the number of days the government gave appellant to move equipment (app.  
SOF at 20-24).  The handful of quotes mostly concerned the amount of time it took to 
mobilize and provided detailed how demobilization occurred.  Specifically, the 
comments concerned appellant’s request for additional time to remove equipment and 
statements about the base closure and reopening (id.).  Other comments included that 
Alfajer believed the Taliban took its equipment and that appellant could not reach one 
of its managers (id.).  Appellant stated that it could have quoted security if it chose to 
do so but did not (id.).  Finally, appellant noted that the government admitted it was 
trying to keep Alfajer employees safe (id.).  None of these facts dispute anything the 
government cited as its facts.  Nor does the government dispute these facts.  Instead, 
appellant’s cited facts are actually consistent with what the government cited in its 
motion.  Put simply, appellant failed to demonstrate any genuine issues of material 
fact. 
 
3.  THE GOVERNMENT IS ENTITLED TO SUMMARY JUDGMENT AS A 
MATTER OF LAW BECAUSE APPELLANT ABANDONED COUNT I OF 
ITS COMPLAINT AND DID NOT RESPOND TO THE GOVERNMENT’S 
SOVEREIGN ACT DEFENSE 
 
 Similarly, except for the implied duty of good faith and fair dealing argument, 
appellant did not respond to anything in the government’s motion.  Appellant certainly 
did not respond to the sovereign act defense or the government’s argument that the 
actual terms of the BPA and contract did not allow for recovery of the stolen 
equipment.  Instead, appellant concentrated solely on what it perceived as the 
government’s breach of its implied contractual duty of good faith and fair dealing.  
Appellant also completely abandoned its claim that the government had superior 
knowledge. 
 
 In Count I, appellant alleged breach of contract.  In its motion, the government 
asserted that the closure of the base was a sovereign act that made performance of the 
contract impossible.  This necessitated the modification reducing the period of 
performance and deobligating funds in the call order and the government argued that 

9 
appellant failed to establish that the government breached the contract (gov’t mot. 
at 13-17).  We agree that appellant failed to establish that the government breached the 
contract because it failed to address the express terms of the contract in its motion 
briefing, instead focusing on the implied duty of good faith and fair dealing. 
 
Further, appellant failed to respond to the government’s argument that the 
sovereign act precludes appellant from recovery; thus, we review whether the 
government is entitled to summary judgment as a matter of law based on the 
undisputed facts cited.  “The sovereign acts doctrine provides that ‘the United States 
when sued as a contractor cannot be held liable for an obstruction to the performance 
of the particular contract resulting from its public and general acts as a sovereign.’”  
Conner Bros. Constr. Co., v. Geren, 550 F.3d 1368, 1371 (Fed. Cir. 2008) (quoting 
Horowitz v. United States, 267 U.S. 458, 461 (1925)).  When the government’s actions 
are “relatively free of Government self-interest,” the sovereign acts defense is 
available.  Id. at 1373 (quoting United States v. Winstar Corp., 518 U.S. 839, 896 
(1996)).  “In contrast, the sovereign acts defense is unavailable ‘where a substantial 
part of the impact of the Government’s action rendering performance impossible falls 
on its own contractual obligations.’”  Id. (quoting Winstar, 518 U.S. at 898).  Further, 
the Board must consider whether the sovereign act “is exclusively directed to aborting 
performance of government contracts” and in so deciding, “courts addressing the 
sovereign acts doctrine have looked to the extent to which the government action was 
directed to relieving the government of its contractual obligations.”  Id. at 1374. 
 
 Here, the government’s actions were to close the FOB and evacuate it (SOF ¶7).  
The actions were not directed at the government’s self-interest to relieve itself of any 
contractual obligations but instead were a matter of security that was public and general 
to all contractors doing business with the FOB.  The act of closing and evacuating the 
base was relatively free of government self-interest.  All personnel were ordered to 
evacuate, rendering it impossible for the government to do business with any 
contractors.  (Id.)  Thus, the sovereign act defense is available to the government and 
bars recovery for appellant. 
 
Based on the above, appellant abandoned Count I, without providing a scintilla 
of evidence to dispute the facts the government asserted.  Further, the 
government’s decision to close and evacuate the base was a sovereign act.  Thus, the 
government is entitled to judgment as a matter of law and we grant the 
government’s motion for summary judgment regarding Count I. 
 
4.  APPELLANT ABANDONED COUNT III AND FAILED TO RESPOND TO 
THE GOVERNMENT’S ARGUMENTS CONCERNING THE COUNT 
 
In Count III, appellant alleged the government had an advantage because of the 
superior knowledge that the area of contract performance was unsafe.  While the 

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government responded to this count in its answer and in the motion for summary 
judgment, appellant failed to respond in any way to the government’s arguments.   
 
Even if we read any comments in appellant’s response to the government’s 
statement of facts as indirectly responding to the government’s arguments regarding 
superior knowledge, appellant clearly knew the extent of the security risks in the area.  
Appellant had first-hand knowledge that the heavy equipment was at risk of theft in the 
area before it bid on the contract (SOF ¶ 12).  Further, the direct terms of the contract 
required the contractor to be responsible for providing its own security (SOF ¶¶ 3, 5).   
 
 Based on the above, appellant abandoned count III, without providing a scintilla 
of evidence to dispute the facts the government asserted.  Thus, the government is 
entitled to judgment as a matter of law and we grant the government’s motion for 
summary judgment regarding Count III. 
 
5.  IMPLIED CONTRACTUAL DUTIES OF GOOD FAITH AND FAIR 
DEALING 
 
 The only portion of the government’s motion for summary judgment that 
appellant responded to involved count II of its complaint, that the government 
breached its implied duty of good faith and fair dealing.  Appellant did not 
demonstrate any genuine issues of material fact so we look to the application of the 
law to the facts to determine the outcome and whether the government is entitled to 
judgment as a matter of law.  Here, appellant seemed to misunderstand the implied 
duty of good faith and fair dealing and attempted to assert that implied duties 
supersede the express requirements of the contract. 
 
As an initial point, Count II is problematic because of our decision that the 
sovereign act of closing the FOB bars recovery.  However, we review whether 
appellant’s appeal and arguments regarding the implied duty of good faith and fair 
dealing leave any room to allow recovery for appellant. 
 
 As appellant pointed out, the covenant of good faith and fair dealing is an 
implied duty that “imposes obligations on both contracting parties that include the duty 
not to interfere with the other party’s performance and not to act so as to destroy the 
reasonable expectations of the other party regarding the fruits of the contract.”  Centex 
Corp. v. United States, 395 F.3d 1283, 1304 (Fed. Cir. 2005) (citations omitted); see 
also Smart Way Transp. Servs., ASBCA No. 60315, 16-1 BCA ¶ 36,569 at 178,112.  
However, appellant misunderstood that the covenant of good faith and fair dealing 
does not expand express terms of a contract when those terms exist.  See Centex,  
395 F.3d at 1306 (explaining that the plaintiff in Centex was not expanding the express 
terms of the contract but, instead, enjoying “the benefits contemplated by the 
contract”).   

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The implied duty of good faith and fair dealing cannot somehow create duties 
that are inconsistent with the terms of the contract.  Bell/Heery v. United States,  
739 F.3d 1324, 1335 (Fed. Cir. 2014).  Appellant demonstrated it failed to understand 
this concept early in its statement of genuine issues of material fact when it responded 
to the government’s simple statements concerning clauses included in the BPA by 
stating, “[d]isputed that this express term changes the Government’s implied duties to 
appropriate the other parties’ benefits under the contract for itself” (app. SOF at 1-2, 
fact nos. 2-3).  Appellant seems to be attempting to argue that implied duties exist that 
are superior to the express terms of the contract, thereby nullifying the express terms 
of the contract.  Unfortunately, regardless of the amount of incredulousness appellant 
forced into its brief and statement of facts, implied duties do not change the express 
terms of the contract. 
 
 Appellant further cites Bell/Heery, 739 F.3d at 1335, by including the quote, 
“this implied covenant guarantees that the government will not eliminate or rescind 
contractual benefits through action that is specifically designed to reappropriate the 
benefits and thereby abrogate the government’s obligations under the contract” (app. 
resp. at 9).  However, appellant failed to demonstrate how this quote was relevant to 
its case.  It is actually unclear what benefit appellant alleges the government received 
or how it reappropriated benefits.   
 
Instead, appellant seems fixated on the fact that the government approved 
Alfajer’s request for additional time to mobilize—a request that occurred after award 
of the BPA, after appellant had agreed to the terms of the contract, and after appellant 
began performance of the contract—but then did not provide the same amount of time 
to demobilize.  Appellant’s argument seems to include only that it should have had 
at least 40 days to demobilize because it had that amount of time to mobilize (app. 
resp. at 10).  However, the government allowing a relaxation of the contract terms to 
accommodate Alfajer during mobilization does not mean that all other contract terms 
are disregarded.  It simply means that the government was sympathetic to 
appellant’s predicament and allowed a relaxation of the terms at a time when the 
mission could afford such a delay.  This was not the case after the termination because 
the base was closed and quickly evacuated. 
 
Appellant requests the government pay for the lost leased equipment under a 
theory of an implied duty of good faith and fair dealing because the conditions were 
unsafe and the government allowed extra time for the company to mobilize, after the 
start of the contract and the call order, regardless of the express terms of the contract.  
Appellant even suggested that the government was responsible for providing safe 
access and that it was the government’s responsibility to protect them from kidnapping 
(SOF ¶ 17).  However, the express terms of the BPA and contract dispute 
appellant’s position.  Further, the express terms of the contract allowed ways appellant 
could have requested additional security, but those avenues were not explored.   

12 
Several express terms of the BPA and contract are relevant to this appeal and 
defeat appellant’s argument concerning the implied duty of good faith and fair dealing.  
First and perhaps most relevant, in direct opposition to appellant’s argument that the 
government was required to provide security to Alfajer, the express terms of the 
contract required appellant to provide its own security for both delivery and retrieval 
of the equipment (SOF ¶ 5). 
 
Second, while appellant argued that it was the government’s duty to provide 
security for mobilization and demobilization, the BPA provided express terms for 
requesting government-provided security that included making particular requests for 
said security.  Appellant never made such a request, not at the beginning of the 
contract when it encountered difficulties beginning performance of the contract nor 
at the end when it was ordered to remove the equipment (SOF ¶¶ 3, 13).  Instead, 
appellant asked for additional time to remove the equipment, which the government 
could not approve based on the sovereign act decision to close and evacuate the FOB 
(SOF ¶ 7).   
 
 Third, the BPA expressly addressed that performance of the contract might be 
unsafe (SOF ¶ 3).  In addition to agreeing to the terms of the BPA and contract, 
appellant acknowledged several times that the conditions were not safe (SOF ¶¶ 9,  
12-13).  
 
Finally, the BPA clearly categorized employees working on appellant’s contract 
as non-CAAF, which provided government-furnished support, including security, only 
when performing their jobs in the direct vicinity of US Armed Forces (SOF ¶¶ 3, 10).  
Once the equipment left the base, the government was no longer responsible for 
furnishing anything for non-CAAF personnel working pursuant to the contract. 
 
The Board can find no evidence that the government interfered with 
appellant’s performance of the express terms of the contract, which did not dictate how 
appellant should remove the leased equipment.  While the BPA contained some 
limited information about a demobilization plan, it was impossible for the 
demobilization portions of the contract to be followed because the contract was 
reduced in scope and deobligated early and appellant never filed a demobilization plan 
of any sort (see SOF ¶ 4).  Thus, the government never approved a demobilization 
plan.  While objecting to the demobilization timeline, appellant developed the plan of 
how to remove the equipment and chose to use a third-party transportation company 
for demobilization (SOF ¶ 9).  That third party lost the equipment, not the government 
(id.).  The only aspect for which the government was responsible was the date it 
requested the equipment be removed because the act of closing and evacuating the 
FOB required the termination of all contracts and quick removal of all portions of the 
contracts. 

13 
The express terms of the contract put security for mobilization and 
demobilization squarely on the shoulders of Alfajer.  The government permitted 
additional time for mobilization but that did not create a duty, whether express or 
implied, for it to provide the same amount of time for demobilization.  The 
government did not dictate how appellant had to remove the equipment, just that it 
needed to be removed because the FOB was closing and evacuating.  Finally, at 
no time did appellant request the government provide security or make a formal 
request through the channels expressly contained in the contract.  The government 
did not violate the implied duty of good faith and fair dealing because the express 
terms of the contract dictated which party was responsible for security of the 
equipment while transporting it to and from the base—the contractor. 
 
For these reasons, we grant the government’s motion for summary judgment 
regarding Count II. 
 
CONCLUSION 
 
 For the reasons stated above, we grant the government’s motion for summary 
judgment for Counts I, II, and III.  Count IV was previously denied.  Thus, the appeal 
is denied and no further counts of the appeal remain under consideration at the Board. 
 
 Dated:  October 20, 2023 
 
 
 
 
 
 
 
 
 
 
 
HEIDI L. OSTERHOUT 
Administrative Judge 
Armed Services Board 
of Contract Appeals  
I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 MICHAEL N. O’CONNELL 
Administrative Judge 
Acting Vice Chairman 
Armed Services Board 
of Contract Appeals 


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 No. 62125, Appeal of Alfajer, 
Ltd., rendered in conformance with the Board’s Charter. 
 
 Dated:  October 23, 2023 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals