General Logistics Group, Ltd. d/b/a GLC Group
Docket: ASBCA 60838
Decision date: 2012-11-06

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of - ) 
) 
General Logistics Group, Ltd. d/b/a 
  GLC Group 
) 
) 
ASBCA No. 60838 
) 
Under Contract No. W56KJD-13-A-0004 ) 
APPEARANCE FOR THE APPELLANT: Eric S. Montalvo, Esq. 
  The Federal Practice Group 
  Washington, DC 
APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq. 
  Army Chief Trial Attorney 
Sean M. Connolly, Esq. 
MAJ Stephen P. Smith, JA 
Dana J. Chase, Esq. 
  Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE MCNULTY 
T
his appeal involves a claim arising under call orders issued pursuant to a 
Blanket Purchase Agreement (BPA) for the delivery of different types of fuel to 
various locations within Afghanistan.  The fuel was intended to be purchased from 
outside Afghanistan and imported.  Pursuant to a Status of Forces Agreement, between 
the United States and The Islamic Republic of Afghanistan, the fuel was to be exempt 
from importation taxes.  Appellant, General Logistics Group, Ltd. (GLC) asserts the 
government failed to provide the assistance required to obtain the tax exemption, 
which caused its cost of performance to increase.  GLC seeks to recover the alleged 
increased cost of performance.  We decide entitlement only.  Also pending before the 
Board is GLC’s motion for summary judgment.  This decision moots the motion. 
FINDINGS OF FACT 
1.
BPA W56KJD-13-A-0004 was issued November 6, 2012.  The original
performance period was just seven weeks, November 6, 2012 to December 31, 20121 
(R4, tab 1 at 1-2).  The BPA, by amendment, extended the performance period several 
times, ending finally on August 31, 2013 (R4 tabs 2-3, 5).  The BPA was for the 
1 Although the record includes no copy of the BPA signed by GLC signifying its 
acceptance, there is no dispute GLC accepted and performed delivery orders 
issued under the BPA. 
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2 
supply of petroleum, oil and lubricants (POL) to support the mission of the 
Afghanistan National Security Forces (ANSF).  The POL was a mission critical 
material.  (Tr.1/146, 2/57)  The POL was requested through call orders issued by the 
contracting officer or the authorized representative of the contracting officer (R4, tab 1 
at 4; tr. 2/21).  The BPA stated that calls would be placed with the vendor who could 
offer the lowest pricing and meet the delivery requirements (R4, tab 1 at 3).  The BPA 
stated that invoicing for the delivered POL was to be submitted at least monthly (id. 
at 4).   
2
. The BPA provided that either party could terminate the agreement upon
30 days’ notice (id. at 4).  The BPA included lists setting forth the estimated quantities 
of the different types of POL that would be required throughout the Islamic Republic of 
Afghanistan and also stated that for planning purposes the vendors should anticipate 
delivery being required within 48 hours of a call being issued (id. at 5-9, 15).  Deliveries 
were often required within 24 to 72 hours of the call being issued (tr. 1/ 35-36, 138-39, 
2/171). 
3. T
he BPA required the vendors to submit firm fixed per liter pricing lists to
be updated at least monthly (R4, tab 1 at 3-4; tr. 1/56, 2/170).  Additionally, the 
government was entitled to a 10% discount, whenever more than 2,000,000 liters of 
diesel fuel was delivered in a month and to a 13% discount, whenever more than 
5,000,000 liters of diesel fuel was delivered in a month (R4, tab 1 at 17).  
4
. The BPA stated that because the fuel was being purchased for the benefit of
the government of the Islamic Republic of Afghanistan (GIRoA) the fuel deliveries 
were exempt from taxes and customs duties.  The vendors were instructed to exclude 
taxes and duties from their pricing calculations.  (Id. at 18; tr. 1/27-29) 
5.
The BPA incorporated by reference FEDERAL ACQUISITION
REGULATION (FAR) 52.229-6, TAXES—FOREIGN FIXED PRICE CONTRACTS 
(JUN 2003), which states in part: 
(
d)(1)  Except as provided in subparagraph (d)(2) of this 
clause, the contract price shall be increased by the amount 
of any after-imposed tax or of any tax or duty specifically 
excluded from the contract price by a provision of this 
contract that the Contractor is required to pay or bear, 
including any interest or penalty, if the Contractor states in 
writing that the contract price does not include any 
contingency for such tax and if liability for such tax, 
interest, or penalty was not incurred through the 
Contractor’s fault , negligence, or failure to follow 
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3 
 
instructions of the Contracting Officer or to comply with 
the provisions of paragraph (i) of this clause. 
 
. . . .  
 
(i)  The Contractor shall take all reasonable action to 
obtain exemption from or refund of any taxes or duties, 
including interest or penalty, from which the United States 
Government, the Contractor, any subcontractor, or the 
transactions or property covered by this contract are 
exempt under the laws of the country concerned or its 
political subdivisions or which the government of the 
United States and of the country concerned have agreed 
shall not be applicable to expenditures in such country by 
or on behalf of the United States.   
 
(R4, tab 1 at 25) (emphasis added) 
 
 6.  The BPA also incorporated by reference DEFENSE FEDERAL 
ACQUISITION REGULATION SUPPLEMENT (DFARS) 252.229-7000, 
INVOICES EXCLUSIVE OF TAXES OR DUTIES
 (JUN 1997), which states: 
 
 Invoices submitted in accordance with the terms and 
conditions of this contract shall be exclusive of all taxes or 
duties for which relief is available. 
 
(Id. at 25) 
 
 7.  The BPA included C³ CLAUSE 952.225-0019, COMMODITY SHIPPING 
INSTRUCTIONS (AFGHANISTAN)
 (AUG 2011), which required that all shipments 
into the Combined Joint Operations Area-Afghanistan (CJOA-A) be coordinated 
through the Defense Transportation system (DTS) to expedite the customs clearance 
process.  This clause included the following documentation required for imports: 
 
a.  An original Customs Clearance Request (CCR) 
prepared by the COR in accordance with Afghanistan 
customs guidance referenced in paragraph 4 below. 
b.  Bills of Lading (for shipments by sea), Airway Bills 
(for shipment by air) or Commodity Movement Request 
(CMRs) (for overland shipments). 
 
. . . . 
 
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4 
f. A Diplomatic Note, prepared by DoD Customs, to the
Ministry of Foreign Affairs requesting the initiation of
customs formalities with the Ministry of Finance,
Department of Customs and Exemptions.
T
he clause also included a provision listing a point of contact in the United States, 
with telephone number, for customs issues (C3 CLAUSE 952.225-0019(d)(2); id. 
at 36-38). 
8. T
his clause adopts procedures set forth in a document dated March 31, 2010,
issued by the United States Embassy in Kabul entitled “SOP For Customs Clearance 
Request (Import/Export) Operations” (R4, tab 19).  The SOP indicates that DOS 
(Department of State) is responsible for issuing Diplomatic Notes requesting 
exemptions from customs duties and that DOD (Department of Defense) appoints an 
officer to be responsible to oversee the DOD portion of the process (id. at 2).  Each 
request is entered into a database maintained by DOS by a DOS Liaison Officer 
(LNO).  The SOP also indicates that only DOD CORs are authorized to send CCRs to 
the LNO office and that no CCR will be accepted and processed until a DD 577 
appointment memo has been received from the COR.  (Id. at 2, 6)  The SOP makes it 
clear the Diplomatic Note requesting the exemption will not be issued by the LNO 
until the other documents required have been received by the LNO because the note 
will include the Bill of Lading/CMR number or other information specific to the 
shipment in it.  (Id. at 3, 7)  A flow chart included in the documents annexed to the 
SOP indicates the very first step in the customs duty exemption process, before any 
other documentation is prepared, is the COR sending the CCR to DOS (id. at 23; 
tr. 1/ 32-34).  Without the CCR, fuel could not be imported into Afghanistan (tr. 1/42).  
Captain 2, the contracting officer during the initial period of contract performance 
when the vast majority of GLC’s performance, measured by quantity of fuel delivered 
occurred, testified he was not familiar with the SOP, nor with the CCR (tr. 2/19-20, 
59-60, 71-74). 
9.
GLC was one of several companies who were selected by the government as
vendors (tr. 2/169).  Although GLC had several years of past performance experience 
supplying fuel to the government in Afghanistan, exemption from taxes and customs 
duties was a new development for both GLC and the government personnel 
responsible for administering the contract.  GLC’s previous fuel delivery contracts had 
not been tax or customs duties exempt.  It was also the first time the U. S. government 
personnel involved in administering the BPA and the call orders issued pursuant to it 
dealt with a tax exempt fuel delivery contract.  (Tr. 2/44, 64-66, 3/20-22, 34, 39)  
Major  testified that because this was the first BPA that was to be exempt from 
GIRoA taxes the Army had no formal procedures in place for helping the contractors 
2 By the time of the hearing Captain  had been promoted to the rank of Major.  
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5 
receive the exemptions.  (Tr. 2/66)  His supervisor, LCDR , similarly testified 
he could not recall there being any established processes in place for assisting the 
contractors in obtaining the customs duty exemption (tr. 2/201, 210-11). 
10.
GLC received notification via email dated November 6, 2012, that it was a
successful offeror followed by a more formal notification dated November 8, 2012 
(app. supp. R4, tab 344 at 5-6, 342; tr. 1/58).  The first call to GLC was issued 
December 15, 2012, for delivery on December 31, 2012.  (R4, tab 31; tr. 1/43-44)  The 
record includes 105 calls issued to GLC between December 15, 2012 and August 2, 
2013 (app. supp. R4, tabs 31-135).  The record does not include the calls’ delivery 
schedules, which presumably would set forth fuel types, quantities, and delivery 
locations.  Of the 105 total calls GLC received, 48 were issued in December 2012, 38 
in January 2013, and the remaining 19 were issued mostly after May 20133.  (Id.)  Not 
only did the largest number of calls occur early in the performance of the contract, but 
the quantity of the fuel ordered was greater in the early calls than it was in the later 
calls (tr. 1/50-51). 
11.
Immediately thereafter, although the government sought to assist the
awardees, including GLC in obtaining the applicable exemptions from taxes, the effort 
was at best only partly successful (tr. 3/41-43, 87-88).  In a series of emails beginning 
with a date of November 17, 2012, and extending to December 1, 2012, the record 
indicates the government had contacted both the U.S. Embassy in Kabul and the 
GIRoA on behalf of the awardees, but that the awardees were having trouble obtaining 
all of the applicable exemptions and some awardees were declining to accept orders 
because they could not receive exemptions (R4, tab 21; tr. 2/83-84).  In a message 
dated December 1, 2012, the contracting officer advised the awardees who were 
accepting orders were losing 20 cents “give or take” for each dollar of fuel delivered 
without the exemptions (R4, tab 21 at 1). 
3 GLC’s  testified the call documents at tabs 31-135 were generated 
after the fuel had been delivered and GLC had invoiced the government for it, 
which it did at the end of each month.  The orders that initiated the fuel 
deliveries were sent via email.  GLC was required to wait until the end of the 
month to invoice, to see if the government had ordered a large enough quantity 
of fuel to qualify for the discounts provided for in the pricing provisions of the 
BPA.  (Tr. 1/43-47, 107-13; app. supp. R4, tabs 105, 216; finding 3)  This 
testimony was confirmed by the contracting officer and his supervisor (tr. 2/24, 
167, 186).  The initial calls via email are not in the record.  Based on this 
testimony it appears the vast majority of the fuel delivered by GLC was 
delivered before January 31, 2013, during Captain  tenure as contracting 
officer.   also testified that a large portion of GLC’s performance under 
the BPA occurred between December 2012 and January 2013.  (Tr. 3/88) 
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6 
12. In late December 2012, GLC thanked the contracting officer for his
assistance in helping GLC receive exemptions from taxation on salaries and business 
receipts and requested that the Army issue a tax exemption letter for the importation of 
8,000 metric tons of diesel fuel and 2,000 metric tons of Mogas.  Major  testified 
he had no recollection of GLC ever requesting that a CCR be issued.  He also testified 
he could not recall whether the DD 577 forms referred to in the SOP and necessary for 
the CCR had ever been issued.  The contracting officer also testified that despite having 
legal advisors and senior contracting officials available to him, no one ever advised him 
that following the procedures set forth in the BPA’s Commodities Shipping Instructions 
clause might solve the problem.  (Tr. /99-101)  Additionally, the COR, initially 
Lieutenant, later Captain , did not seek  any tax exemption on behalf of GLC (app. 
supp. R4, tab 376; tr. 2/126, 132).  The government never issued any CCRs necessary 
for the importation of fuel (R4, tab 7 at 71; app. supp. R4, tabs 28, 28A; tr. 1/155-59, 
2 /35-36, 40, 3/81-83).  The record includes no documentary evidence that GLC 
requested exemption from customs duties or CCRs for other fuel importations except 
for a single instance set forth in an email chain that occurred in late May to June 2013, 
but GLC’s CEO,  testified GLC had requested custom clearance documents 
several times, including orally (R4, tab 7 at 86-89; tr. 3/44).   
13. T
he record includes no evidence that any Diplomatic Note as set forth in
subsection f of the Commodities Shipping Instructions clause of the BPA and the SOP 
was ever prepared by the Army and submitted on its behalf by DOS to the GIRoA 
Ministry of Foreign Affairs.  
14.
The contracting officer wrote a letter to the GIRoA Ministry of Finance in
mid-January 2013, on behalf of all eight awardees seeking exemptions from taxes and 
customs duties (R4, tab 7 at 79-80).  A week later, in an email dated January 22, 2013, 
the contracting officer advised GLC that a process had been established with the 
GIRoA Ministry of Finance to begin processing GLC’s exemptions from taxes and 
customs duties for fuel delivered under the BPA.4  The contracting officer also advised 
that he would be redeploying and that the new contracting officer would be LCDR 
 with SSgt  having responsibility for day to day contracting operations.  
(Id. at 74)   
15.
When GLC was unable to obtain the exemption from customs duties it was
not able to import fuel and purchased fuel inside Afghanistan rather than importing 
fuel as it had planned to do.  The fuel purchased within Afghanistan had been subject 
to customs duties and in order to comply with the BPA requirement that the offerors’ 
fuel prices include no taxes or customs duties for which exemptions existed, GLC 
subtracted from the prices it charged the government, the customs duty component it 
4 GLC had already completed the lion’s share of its performance at this point 
(finding 10). 
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7 
had to pay its suppliers5.  (Tr. 1/83-99, 118-23, 140-41, 170-72, 3/51-53, 122; app. 
supp. R4, tab 29 at 82, tab 216 at 2, tab 255) 
16. GLC
 attempted to obtain a refund for the customs duties it had paid indirectly
through the prices it had paid its suppliers for the fuel it purchased inside Afghanistan, 
both with the help of the contracting office personnel and directly from the government 
of Afghanistan, but these efforts were unsuccessful (tr. 1/166-69, 2/89-92, 3/117-18; R4, 
tab 7 at 82-83, 121-22, tab 23). 
17. G
LC subsequently raised its prices on its monthly price lists, when it
realized the government would not issue the CCRs and assist it in obtaining the 
exemption from the custom duties (tr. 3/62-63). 
18. In an a
udit report released several months after performance of the contract
began, the Special Inspector General for Afghanistan Reconstruction (SIGAR) 
reported that contractors performing work that should have been exempt from Afghan 
taxes and customs duties were often being assessed the same6 (app. supp. R4, tab 26).  
In a section of the report entitled “Contracting Agencies Erroneously Reimbursed 
Contractors For Afghan Taxes And Have Not Taken Sufficient Steps To Help 
Contractors Obtain Tax Exemption Certificates” SIGAR stated in pertinent part: 
CENT
COM Joint Theater Support Contracting Command 
(CJTSCC) also operates as a contracting command for 
DOD in Afghanistan.  Like USACE, CJTSCC’s operations 
fall under the protections delineated in the SOFA.
7  Unlike 
USACE CJTSCC has not developed any procedures to 
ensure its contractors receive tax exemption.  CJTSCC 
contracting officers we spoke with stated that they were 
unaware of how the taxation provisions in the SOFA and 
5 The record includes price quotes from six different fuel suppliers.  Each supplier’s 
quote sets forth as a separately identified component of the total price quoted, 
customs duty.  (App. supp. R4, tabs 250-55; tr. 3/58-59, 173) 
6 The report was dated May 2013, but the actual audit work occurred between 
June 2012 and January 2013 (app. supp. R4, tab 26 at 25).  The report indicates 
it was focused on business income taxes, which does not include customs duties 
(id. at 8-9).  However the report is peppered with references to customs duties, 
which we understand as being included in the problems discussed more 
specifically in the report with respect to business taxes (e.g., id. at 17, 19). 
7 Status of Forces Agreement.  The SOFA, which went into effect in May 2003, states 
that acquisition of articles and services by or on behalf of the United States in 
implementing the SOFA shall not be subject to any taxes, customs duties or 
similar charges in Afghanistan (R4, tab 18 at 2).  
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8 
the Afghan tax code affect their contracts.  They stated 
they have refused to sign letters of introduction or assist 
contractors in the tax exemption process because they 
believe tax issues are beyond the contracting officer’s 
responsibility. 
. . .
 . 
C
JTSCC maintains an Acquisition Instruction meant to 
provide guidance to its contracting personnel for the 
appropriate handling of common contracting issues in Iraq 
and Afghanistan.  However, this Acquisition Instruction 
does not include any explanation of contracting personnel 
responsibilities or requirements for assisting in contractor 
taxation issues or tax-exempt status. 
(I
d. at 18-20) 
S
IGAR made the following recommendation to the government’s 
contracting activities to help ensure that contractors gain tax-exempt status: 
D
evelop procedures to help contractors obtain appropriate 
documentation of tax-exempt status with the Afghan 
government. 
(I
d. at 21)  
T
he report includes a response, dated April 17, 2013, from CJTSCC to this 
recommendation indicating that a bulletin was published on January 21, 2013, 
summarizing the tax exemptions Department of Defense (DOD) contractors were 
entitled to.  The response also indicates that letter templates had been included with 
the bulletin to be signed by senior DOD contracting officials to allow contractors to 
seek the appropriate exemptions from taxes.  The response further states the CJTSCC 
Acquisition Instruction will be revised to include guidance that advises contracting 
officers of their responsibilities and the command’s procedures in this area.  
(Emphasis added) (Id. at 26)  The templates were not issued until January 21, 2013 
and the guidance was not issued until December 13, 2013 (app. supp. R4, tabs 360, 
362). 
19.
  GLC submitted a claim certified by  to the contracting officer 
under date of January 21, 2016, demanding payment for taxes it had incurred under the 
BPA (R4, tab 7).  GLC claimed it had incurred additional costs in the amount of 
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9 
$9,584,327.19 for taxes, which it asserted it was entitled to reimbursement for under 
the contract and the FAR (id.).    
20. I
n a decision dated July 8, 2016, the contracting officer denied the claim
(R4, tab 16). 
21. G
LC filed its notice of appeal on October 5, 2016.  The Board docketed
this appeal as ASBCA No. 60838 on October 6, 2016.  (Bd. corr. ltr. dtd. October 6, 
2016) 
POSITIONS OF THE PARTIES 
G
LC asserts the Army has breached the contract by failing to follow the 
procedures set forth in BPA for obtaining the exemption from customs duties 
including failing to issue the CCR’s (compl. ¶¶ 41, 51-55, 66-69).  GLC asserts the 
Army breached the implied duties of good faith and fair dealing and to cooperate by 
directing GLC to comply with a tax exemption procedure that was not in accordance 
with the procedure set forth in the BPA (id. ¶¶ 73-78).  GLC also asserts it is entitled 
to an equitable adjustment pursuant to FAR 52.229-6 (id. ¶¶ 44-48).  GLC asserts the 
government should be estopped from denying payment (id. ¶¶ 81-89).  Finally, GLC 
asserts the Army’s actions rendered the contract commercially impracticable to 
perform (id. ¶¶ 91-93). 
T
hese assertions, other than the assertion GLC was entitled to an equitable 
adjustment pursuant to FAR 52.229-6, were fully briefed in its motion for summary 
judgment.8  The motion also included a new legal argument, that the government 
constructively changed the contract.  (App. mot. at 16-18)  GLC incorporated its 
briefing relating to its motion into its post-hearing brief by reference (app. br. at 1). 
T
he government argues GLC has failed to establish a breach has occurred 
because it cannot establish, a duty owed to GLC the government failed to fulfill, or 
that the damages alleged were foreseeable, caused by the government or reasonable.  
Although neither clearly argued, nor supported by citation to applicable case law, we 
understand the government also argues GLC failed to mitigate damages.  The 
8 The Board in an order dated June 20, 2018, advised the parties it was unlikely to be 
able to rule on the motion before the hearing of the appeal occurred, because 
the briefing of the motion would not be completed until shortly before the 
hearing.  The Board requested the parties to advise the Board whether they 
preferred to reschedule the hearing to give the Board the opportunity to decide 
the motion.  The parties elected to proceed with the hearing.  Accordingly, the 
decision on the motion was deferred. 
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10 
government also argues that GLC abandoned a number of its theories of recovery. 
(Gov’t br. at 7, 12-14, 17-19, 28-409)    
DECISION 
W
e hold that GLC is entitled to an equitable adjustment to the contract price 
pursuant to the Taxes—Foreign Fixed Price Contracts clause of the BPA agreement 
and thus need not discuss the alternate theories of recovery and defenses thereto 
asserted.  This provision states the contract price shall be increased for any taxes a 
contractor is required to bear, which are specifically excluded from the contract price.  
(Finding 5) 
W
e begin by noting that although neither GLC, nor the government expressly 
and directly addressed GLC’s argument that it is entitled to an equitable adjustment 
under FAR 52.229-6, TAXES—FOREIGN FIXED PRICE CONTRACTS (FEB 2013) 
in their briefing, we do not consider this theory of recovery to have been abandoned 
and find the record to be sufficiently developed for us to decide this issue.  We have 
held on multiple occasions that failure, to provide evidence relating to a claim or 
theory of recovery, or to discuss the claim or recovery theory in post-hearing briefing 
may constitute abandonment and excuse us from having to discuss the issue in our 
decision.  E.g., Sci. & Mgmt. Res., Inc., ASBCA No. 60412, 19-1 BCA ¶ 37,236 
at 181,243 (failure to enter evidence of claim constituted abandonment), United 
Launch Servs., LLC, ASBCA Nos. 56850 et al., 16-1 BCA ¶ 36,483 at 177,765 
(failure to address release of claims contentions in post-hearing briefing equated to 
abandonment of the issue); Hanley Indus., Inc., ASBCA Nos. 54315, 56383, 08-2 
BCA ¶ 33,932 at 167,922 (failure to present evidence constituted abandonment of 
issue).  However, in this appeal the evidence and the arguments relating to GLC’s 
claim it is entitled to an equitable adjustment, both with respect to advocating for and 
defending against the claim  significantly overlap with that of the other theories of 
recovery GLC asserted and expressly briefed.  Accordingly, there is plenty of evidence 
in the record relating to this issue and both parties have adequately briefed the issue.  
We do not consider the claim for an equitable adjustment to have been abandoned by 
GLC despite its failure in its post-hearing briefing to have expressly identified the 
arguments it made as relating to this claim.   
I
n order to prevail under an equitable adjustment theory, the contractor must 
establish liability, causation, and resultant injury.  CATH-dr/Balti Joint Venture, 
9 The government argues GLC abandoned the following claims:  (1) constructive 
change; (2) breach of implied duty of good faith and fair dealing; 
(3) detrimental change in position; and (4) commercial impracticability, by
failing to put on evidence relating to these claims.  Despite arguing they were
abandoned, the government addressed these claims in its post-hearing briefing.
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11 
ASBCA Nos. 53581, 54239, 05-2 BCA ¶ 33,046, at 163,782, citing Servidone Constr. 
Corp. v. United States, 931 F.2d 860, 861 (Fed. Cir. 1991); Wunderlich Contracting 
Co. v. United States, 351 F.2d 956,968 (Ct. Cl. 1965). 
T
here is no dispute the contract specifically excluded customs duties from the 
price of the fuel GLC was to provide to the government.  The government argues that 
GLC paid no customs duties because it purchased fuel within Afghanistan rather than 
importing the fuel itself.  This argument ignores the unrebutted testimony of GLC’s 
witnesses that all fuel is imported into Afghanistan and is subject to customs duties.  
This testimony was partially supported by the evidentiary record; i.e., the price quotes 
GLC received from its vendors, which included a separate component for the customs 
duties the vendors had paid when the fuel was imported, which GLC’s witnesses 
testified were deducted from the price it charged to the government.  The government 
also argues there is no evidence the vendors actually paid any customs duties.  This 
argument is unpersuasive in the absence of any evidence that the vendors were able to 
avoid having to pay the customs duties that GLC’s witnesses testified are required by 
Afghanistan law.  To the extent the government is arguing the clause is inapplicable to 
contractors who do not incur taxes directly themselves and instead experience taxes 
only indirectly as costs passed through to them from vendors and suppliers who are the 
parties who actually paid the taxes, we disagree with this argument.  There is nothing 
in the language of the clause that would limit it only to directly incurred taxes and 
exclude taxes incurred as pass through costs from vendors or subcontractors, who were 
subjected to taxes the contract would otherwise exclude.  Taxes incurred as pass 
through costs included in the pricing from vendors or subcontractors who paid the 
taxes could raise quantum issues when they have not been expressly identified, which 
could lead to a failure to prove any injury, but in this appeal the record before us is that 
GLC paid its vendors a per liter cost that included an expressly identified component 
for the customs duty its vendor had incurred when the fuel was imported.  GLC 
subtracted this custom duty cost from the price it quoted and was paid by the 
government.  This evidence was unrebutted by the government.  This unrebutted 
testimony and documentary evidence of GLC’s additional costs is sufficient to prove 
that an injury occurred.  Anham FZCO, LLC, ASBCA No. 58999, 2018 WL 6588212 
(Nov. 13, 2018)
10 (unrebutted testimony of additional costs sufficient to demonstrate 
injury).  Both parties introduced expert testimony and reports, which we have 
considered.  We find the expert evidence to pertain more to quantum and to be of little 
assistance with respect to deciding the issue of entitlement, which is the only issue 
before us at this time.    
T
he government argues it did not cause GLC’s damages, and that it was 
unreasonable for GLC to have incurred the additional costs it claims because GLC was 
10 For reasons unknown to the Board, this decision has not been published in the 
official reporter. 
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12 
performing pursuant to a blanket purchase agreement and had no obligation to accept 
the delivery orders and perform at a loss.  In the circumstances we find this argument 
unpersuasive.  The government’s argument ignores that the lion’s share of the 
damages claimed were incurred during the first two months, or less, of the 
performance period.  Both parties’ personnel had no experience with a tax exempt 
contract and were not familiar with the various documents and steps required to 
actually obtain the exemption.  Although the government attempted to assist GLC in 
obtaining the exemptions to which it was entitled, the assistance was only partially 
successful; successful with respect to the exemptions for business taxes and 
completely ineffectual with respect to customs duties.  Although the contracting 
officer never made any express promise that GLC would be reimbursed for the 
customs duties it had incurred, in the circumstances, particularly given the short time 
frame involved when the alleged damages occurred, we conclude it was not 
unreasonable for GLC to continue to perform and deliver the mission critical fuel 
because it was reasonable for it to believe that the paperwork would eventually catch 
up with its performance.  The record includes evidence that GLC did mitigate its 
damages by increasing its prices after it realized that it would not be receiving relief 
from the customs duties included in the prices it was paying to its suppliers and that it 
would not be able to obtain the documentation necessary to import the fuel free of 
customs duties into Afghanistan. 
T
he clause further requires that the contractor be without fault or negligence 
and not to have failed to follow the direction of the contracting officer.  The evidence 
in the record establishes that GLC followed the contracting officer’s directions, which 
were erroneous.  The record also establishes that although GLC could have done a 
better job of using the terminology used in the contract to request the documents from 
the government necessary to start the exemption process, that GLC did request the 
contracting officer issue the documents necessary to import fuel into Afghanistan and 
avoid the customs duties it would otherwise have to pay.  On the evidence before us 
we do not conclude that GLC was negligent or responsible for not being able to obtain 
the documents necessary to avoid having to pay customs duties on the fuel it delivered 
in performance of the contract.         
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13 
CONCLUSION 
F
or the reasons set forth above the appeal is sustained and returned to the 
parties for a determination of quantum   
D
ated:  March 16, 2021 
CHRISTOPHER M. MCNULTY 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
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 No. 60838, Appeal of General 
Logistics Group, Ltd. d/b/a GLC Group, rendered in conformance with the Board’s 
Charter. 
D
ated:  March 16, 2021 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals 
REDACTED VERSION. This version has been approved for public release.