ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE HERZFELD 
 
Al Ghanim Combined Group W.L.L. (Al Ghanim) seeks its delay costs from 
the United States Army Corps of Engineers (Army Corps) for awaiting the arrival of 
security escorts before it could travel to do construction work at two buildings 
at Camp Ali Al Salem, Kuwait, in 2018.  The parties submitted the appeals on the 
record under ASBCA Rule 11.  For the reasons discussed below, we sustain 
Al Ghanim’s appeal in the amount of $34,320.11, plus applicable Contract Disputes 
Act (CDA) interest. 
 
FINDINGS OF FACT 
 
I. The Contract and the Security Escort Process 
 
On November 7, 2013, the Army Corps awarded Al Ghanim an indefinite 
delivery/indefinite quantity job order contract (Contract) to perform “sustainment, 
restoration, and modernization . . . projects at installations in Kuwait” (62321 R4, tab 3  
at 3; 62984 R4, tab 5 at 3).  On September 29, 2017, the Army Corps awarded two task 
orders to Al Ghanim to perform minor construction and repair work at Camp Ali Al 
Salem’s Joint Logistics Operations Center Facility A office (JLOC-A) and Joint 
Logistics Operations Center Facility B office (JLOC-B) (62321 R4, tab 12 at 2 (JLOC-
Appeals of - )  
 )  
Al Ghanim Combined Group W.L.L. ) ASBCA Nos. 62321, 62984 
 )  
Under Contract No. W912ER-14-D-0005 )  
   
APPEARANCE FOR THE APPELLANT: Sam Zalman Gdanski, Esq. 
    Gdanski Law PC 
    Teaneck, NJ 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Cara M. Mroczek, Esq. 
Ken T Kajihiro, Esq. 
Aimee L. Rippeon, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Middle East 

2 
 
A); 62984 R4, tab 7 at 3 (JLOC-B)).  The task orders included a contract completion 
date of July 16, 2018 (62321 R4, tab 12 at 3; 62984 R4, tab 7 at 4). 
 
To perform the task orders necessarily required Al Ghanim to work on-site  
at Camp Ali Al Salem in Kuwait.  The base’s Air Force wing served “as the primary 
airlift hub and gateway for delivering combat power to joint and coalition forces in the 
U.S. Central Command Area of Responsibility” (supp. R4, tab 28 at 1; tab 29 at 1).  
The air base is located approximately 39 miles from the Iraqi border (supp. R4, tab 29 
at 1; tab 27).   
 
Before the parties entered the contract, the Air Force’s Commander of the Ninth 
Air Force had issued an order requiring military escorts while on base:  “All [local 
national/other country national] personnel under [United States Air Force] control and 
performing contracted services require escort unless the wing commander deems 
otherwise” (supp. R4, tab 24 at 3 (Air Force Central Instruction 32-1002); tab 36 – 
Lantz decl. ¶ 4).
1  This order – Air Force Central Instruction 32-1002 – applied to “all 
Air Force military, civilian, and contracted personnel” of the Ninth Air Force “while 
deployed to the” United States Central Command area of responsibility, which 
included Camp Ali Al Salem (supp. R4, tab 24 at 3 (Air Force Central Instruction 32-
1002); tab 36 – Lantz decl. ¶ 4).  The instruction’s “Commander’s Intent” section 
explained that “escorts are needed for [local national], [other country national] and 
contract employees in areas containing essential personnel, equipment, or information 
that must be protected from sabotage or disclosure to enemy forces” (supp. R4, tab 24 
at 3 (Air Force Central Instruction 32-1002)).  However, later in the instruction under 
the “Personnel Requiring Escort” section, it clarified that it only applied to contracting 
personnel:  “All [local national/other country national] personnel under USAF control 
and performing contracted services require escort unless the wing commander deems 
otherwise” (id.).  The order also warned service members that “[f]ailure to comply is a 
potential violation” of the Uniform Code of Military Justice (id.).   
 
Consistent with the order, the Contract warned that “[a]ll work under this 
contract is to be accomplished on secure sites,” which meant “[c]ontractor personnel 
and work crews shall be required to be in the presence of Government Escorts at all 
times they are on the installations” (62321 R4, tab 3 at 53-54; 62984 R4, tab 5 at 53-
54).  The Contract further explained, “Security requirements and restrictions are for 
the specific purpose of protecting the security and force protection interests of the 
government.  Protecting these interests will at all times take precedence over the 
accomplishment of the work under this contract.”  (62321 R4, tab 3 at 54; 62984 R4, 
 
1 The Army Corps provided a 2021 version of Air Force Instruction 32-1002, but 
explained by declaration that this version is “substantively similar” to the 
version in effect in 2018 at the time the Al Ghanim escorts at issue took place 
(supp. R4, tab 36 – Lantz decl. ¶ 4).  Al Ghanim has not disputed these facts. 

3 
 
tab 5 at 54)  The Contract also warned, “The capacity of the government to provide 
Escorts is limited, and subject to unavoidable shortages” (62321 R4, tab 3 at 54; 62984 
R4, tab 5 at 54).  “Work and work schedule shall be required to be adjusted in 
accordance with the Government’s ability to provide Escorts” (62321 R4, tab 3 at 54; 
62984 R4, tab 5 at 54).   
 
The Contract set up a process for Al Ghanim to obtain escorts (62321 R4, tab 3  
at 54; 62984 R4, tab 5 at 54).  The Contract required Al Ghanim to “provide the 
Contracting Officer with a twice per week report (in writing) with projections of 
manpower to be working on a daily basis . . . . to obtain accurate estimates weekly in 
order that the number of Government Escorts can be planned and provided to meet 
Contractor work requirements” (62321 R4, tab 3 at 54; 62984 R4, tab 5 at 54).  “No 
later than 1200 hours each day, Contractor shall provide the Contracting Officer with 
an accurate report as to numbers of personnel, crews and crew sizes to be working on 
the following work day, and shall confirm that the required escorts will be available” 
(62321 R4, tab 3 at 54; 62984 R4, tab 5 at 54).   
 
The Contract indicated that site locations requiring escorts “[m]ost commonly . 
. . pertain to U.S. Air Force and they shall provide escorts” (62321 R4, tab 3 at 56; 
62984 R4, tab 5 at 56).  As anticipated by the Contract, the Air Force conducted the 
escorts at Camp Ali Al Salem and required Al Ghanim to submit escort request forms 
(app. R11 br., ex. F; supp. R4, tab 30; tab 33 at 50 (Al Ghanim representative 
acknowledging Air Force provided escorts)).  The escort forms stated:  “An escort 
request does not guarantee availability” (app. R11 br., ex. F at 147; supp. R4, tab 30).   
 
As part of the bidding process on the Contract, contractors (including 
Al Ghanim) had to submit a price based on a coefficient, which meant “a numerical 
factor that represents costs not considered to be included in ‘Unit Price Book’ unit 
prices” that were provided as an attachment to the Contract (62321 R4, tab 3 at 37, 39; 
62984 R4, tab 5 at 37, 39).  “Coefficients shall consist of items such as:  general and 
administrative and other overhead costs, insurance costs, bonding and alternative 
payment protection costs, protective clothing, equipment rental, sales tax and 
compliance with tax laws and also contractor’s profit, as applicable” (62321 R4, tab 3 
at 39; 62984 R4, tab 5 at 39).  The Contract also stated, “In formulating his proposal 
for the coefficients, Contractor will consider and account for the cost implications 
inherent in accomplishment of work on secure installations” (62321 R4, tab 3 at 54; 
62984 R4, tab 5 at 54).  The Contract specifically stated that it should include all costs 
of “complying with security measures including obtaining host nation gate passes, 
DBIDS [Defense Biometric Identification System] Registration . . . Local Employed 
Personnel (LEP) interviews, processing times through vehicle search area both in and 
out of base, and complying with escort policies” as part of the coefficients (62321 R4, 
tab 3 at 40; 62984 R4, tab 5 at 40).  Al Ghanim’s coefficients factored in all these 
security requirements including delays of up to 30 minutes to account for the 

4 
 
contractor’s completion of all required on-base processing at the facility and when 
government escorts would be available to shepherd the contractor around the base to 
conduct work (app. R11 br., Lakshmi aff. ¶¶ 9, 15; 62321 R4, tab 3 at 9-11; 62984 R4, 
tab 5 at 9-11). 
 
II. Delays During Performance 
 
Consistent with the Contract, Al Ghanim submitted escort request forms in 
advance of days the contractor planned to work (app. R11 br., ex. F).  Al Ghanim 
usually identified the time it would arrive at the Visitor Control Center and the time 
30 minutes later when the Air Force would need to provide the security escort (id.).
2   
Air Force enlisted personnel with the force protection unit regularly coordinated with 
and approved Al Ghanim’s escort requests, usually stating that the force protection 
unit could “accommodate” the escort request (id.; supp. R4, tab 38 – Nichols decl. ¶ 6 
(officer noting that he was sometimes copied on escort requests, but he was not part of 
the force protection unit).  Al Ghanim copied the Army Corps when it submitted its 
security escort requests and the Corps’ project manager “actively monitored” the force 
protection process in an attempt to avoid or mitigate delays (supp. R4, tab 35 – 
Heffern decl. ¶¶ 13-15). 
 
Each day, Al Ghanim personnel and equipment had to present their base access 
badges and to pass through the vehicle and contractor security checkpoint at the 
Visitor Control Center before joining the security escorts (supp. R4, tab 40 – Yassin 
decl. ¶¶ 5-8; tab 35 – Heffern decl. ¶¶ 6-10).  The Army Corps’ contracting officer’s 
representative agrees with Al Ghanim that this process normally took about 30 minutes 
(supp. R4, tab 40 – Yassin decl. ¶ 11).  Thus, we find this 30-minute estimate to be 
reasonable. 
 
During performance, Al Ghanim notified the contracting officer that it was 
encountering weather and government-caused delays for both the JLOC-A and JLOC-
B task orders (supp. R4, tab 7 at 20, 22; 62321 R4, tabs 46, 47, 52; 62984 R4, tabs 40, 
51).  As to government-caused delays, Al Ghanim explained:  “Nearly every time[,] 
the escort arrives late at the [Visitor Control Center] to pick up our crew, consequently 
our crew reaches late to the site” (62321 R4, tab 49 at 1; 62984 R4, tab 47 at 1).  The 
government had approved Al Ghanim’s escort requests for a particular time but 
frequently did not come at the specified time to escort Al Ghanim’s personnel to the 
site (supp. R4, tab 33 – Krishna tr. at 58; app R11 br., ex. F).  On its daily quality 
 
2 The record is missing escort request forms for March 10-31, 2018, April 1-2, 4-15, 
23-30, 2018, May 1-3, 5-8, 12-15, 2018, for the JLOC-A crew; and March 12-
31, 2018, April 1-2, 5-15, 23-30, 2018, and May 1-3, 5-8, 12-15, 2018, for the 
JLOC-B crew (supp. R4, tab 39 – Witherington decl. ¶ 25(f)(v); tabs 39e, 39f 
(orange highlighted); app. R11 br., ex. F).   

5 
 
control reports, Al Ghanim noted when Al Ghanim’s personnel arrived at the Visitor 
Control Center, when the security escort arrived at the Visitor Control Center (for most 
days), and when Al Ghanim arrived at the work site that day (app. R11 br., exs. A.4, 
A.5).  On some days, however, Al Ghanim’s personnel arrived at the Visitor Control 
Center later than the agreed-to time (supp. R4 tab 39 – Witherington decl. ¶ 12(k)(v); 
tabs 39e & 39f (gray highlighted days); app. R11 br., ex. F; ex. A.4 at 668, 776-78, ex. 
A.5 at 135, 460, 568-669). 
 
III. Al Ghanim’s Requests for Equitable Adjustment and Claims Seeking Costs for 
Security Escort Delays 
 
On November 18, 2018, Al Ghanim submitted two documents styled as 
requests for equitable adjustment seeking time extensions and costs for security escort 
and weather delays from January through October 2018 (62321 R4, tab 57; 62984 R4, 
tab 3).  For JLOC-A, Al Ghanim requested a 41-day time extension and costs of 
$206,621.96 (62321 R4, tab 57 at 1).  For JLOC-B, Al Ghanim also requested a 41-
day time extension and costs of $206,328.89 (62984 R4, tab 3 at 1).  For each day on 
which Al Ghanim alleged a delay, Al Ghanim broke its delay costs into four items:  (1) 
technical staff and manpower costs; (2) equipment costs; (3) indirect extended 
overhead costs; and (4) other indirect expenses (62321 R4, tab 57 at 9-368; 62984 R4, 
tab 3 at 10-364).  Al Ghanim certified each request as required by the Requests for 
Equitable Adjustment clause, Defense Federal Acquisition Regulation Supplement 
(DFARS) 252.243-7002 (DEC 2012) (62321 R4, tab 57 at 2; 62984 R4, tab 3 at 2; 
62321 R4, tab 3 at 23 (Contract incorporating DFARS clause); 62984 R4, tab 5 at 23 
(same)).   
 
For the first several months of 2019, representatives from Al Ghanim and the 
Army Corps met and attempted to negotiate a resolution to Al Ghanim’s requests for 
equitable adjustment (supp. R4, tabs 16, 17; tab 40 – Yassin decl. ¶¶ 13-18).  By April 
2019, the parties had reached a stalemate.  The Army Corps would not award any cost 
adjustment for any delays, but recognized escort delays of 12 days (and delays of 22 
days due to badging appointments and seven days due to severe weather) (supp. R4, 
tab 16 at 2-3; tab 17 at 2-3; tab 40 – Yassin decl. ¶¶ 18, 20-21).   
 
On May 20, 2019 (after the unsuccessful negotiations and while waiting for a 
decision on its requests for equitable adjustment), Al Ghanim submitted a combined 
document styled as a request for equitable adjustment, reiterating its requests for a 41-
day time extension and $412,950.85 for delays encountered at the Visitor Control 
Center while accessing the base between January and October 2018 (62984 R4, tab 56 
at 1; 62321 R4, tab 58 at 1).  Of the total costs, Al Ghanim again reiterated that it 
sought $206,621.96 related to work on JLOC-A and $206,328.89 related to work on 
JLOC-B (62984 R4, tab 56 at 1-2, 16-21, 389-94; 62321 R4, tab 58 at 1-2, 16-21, 389-
94).  Al Ghanim attached a document labeled as a “draft” titled “Letter Request for 

6 
 
Contracting Officer Final Decision (‘COFD’) under the Contract Disputes Act 
(‘CDA’)” which Al Ghanim “submitted so that the Government can immediately 
review the matter for a mutual and amicable finalization, and . . . .  [i]f resolution 
cannot be achieved bilaterally, then consider this a ‘Claim’ under the Contract 
Disputes Act” (62984 R4, tab 56 at 2; 62321 R4, tab 58 at 2).  Al Ghanim included no 
certification with this submission,  neither as a claim under the CDA nor as a request 
for equitable adjustment (62984 R4, tab 56 at 2; 62321 R4, tab 58 at 2).  Although 
seeking delay costs, Al Ghanim cited the Contract’s Changes clause, which states:  “If 
any change under this clause causes an increase or decrease in the Contractor’s cost of, 
or the time required for, the performance of any part of the work under this contract, 
whether or not changed by any such order, the Contracting Officer shall make an 
equitable adjustment and modify the contract in writing.”  Federal Acquisition 
Regulation (FAR) 52.243-4(d) (JUN 2007) (incorporated by reference in Contract, 
62321 R4, tab 3 at 22; 62984 R4, tab 5 at 22; 62984 R4, tab 56 at 2; 62321 R4, tab 59 
at 2).  The Contract also includes a Suspension of Work clause that states:  
  
If the performance of all or any part of the work is, for an 
unreasonable period of time, suspended, delayed, or 
interrupted (1) by an act of the Contracting Officer in the 
administration of this contract, or (2) by the Contracting 
Officer’s failure to act within the time specified in this 
contract (or within a reasonable time if not specified), an 
adjustment shall be made for any increase in the cost of 
performance of this contract (excluding profit) necessarily 
caused by the unreasonable suspension, delay, or 
interruption, and the contract modified in writing 
accordingly.   
 
FAR 52.242-14(b) (APR 1984) (incorporated by reference in Contract, 62321 R4, 
tab 3 at 22; 62984 R4, tab 5 at 22).   
 
On June 16, 2019, the Army Corps responded to Al Ghanim’s November 2018 
requests for equitable adjustment for “entry-related delays to site access due to security 
forces being late in providing necessary escorts and delays due to severe weather 
conditions” from January through October 2018 (62321 R4, tab 59 at 1; 62984 R4, 
tab 57 at 1).  The contracting officer recognized that Al Ghanim had shown six days of 
severe weather delays and 36 days related to security escort delays (62321 R4, tab 59 
at 2; 62984 R4, tab 57 at 2).  The agency explained:  “The Government’s daily Quality 
Control records support [Al Ghanim’s] assertions of escort delays on the days 
identified” (62321 R4, tab 59 at 2; 62984 R4, tab 57 at 2).  The contracting officer 
granted Al Ghanim an “additional two days of time extension for escort delays” 
because the “overall impact” was likely greater than just the specific days directly 
impacted (62321 R4, tab 59 at 3; 62984 R4, tab 57 at 3).   

7 
 
While granting time extensions, the contracting officer refused to award any 
costs to Al Ghanim for the delays (62321 R4, tab 59 at 4; 62984 R4, tab 57 at 4).  “The 
Government has made no change to the contract regarding its weather or escort 
requirements, and therefore no change has occurred” (62321 R4, tab 59 at 4; 62984 
R4, tab 57 at 4).  The contracting officer believed that “both weather and escort delays 
are to be considered as excusable, non-compensable delays” under the Contract (62321 
R4, tab 59 at 4; 62984 R4, tab 57 at 4).  The contracting officer relied on the excusable 
delays provision of the Contract’s Default clause, which states a contractor “shall not 
be terminated” where the “delay in completing the work arises from unforeseeable 
causes beyond the control and without the fault or negligence of the Contractor” such 
as “acts of the Government in either its sovereign or contractual capacity” and 
“unusually severe weather.”  FAR 52.249-10(b)(1)(ii) & (x) (APR 1984) (incorporated 
by reference in the Contract, 62321 R4, tab 3 at 23; 62984 R4, tab 5 at 23).  The 
contracting officer explained, “Default-related events do not entitle [Al Ghanim] to 
extended site overhead costs; only the time it was impacted by the events” (62321 R4, 
tab 59 at 4; 62984 R4, tab 57 at 4).  Thus, the contracting officer denied Al Ghanim’s 
request for costs but agreed “to a time extension of 44 days due to excusable, non-
compensable delay” (62321 R4, tab 59 at 4; 62984 R4, tab 57 at 4).  While the 
contracting officer titled the final section of the letter as the “Final Decision,” 
throughout the letter (including in that section) the government was responding to Al 
Ghanim’s requests for equitable adjustment (62321 R4, tab 59 at 1, 4; 62984 R4, tab 
59 at 1, 4).  The contracting officer’s responses to the requests for equitable adjustment 
did not include any notice of appeal rights as required by the CDA and FAR 
33.211(a)(4)(v).   
 
After issuing the decisions on the requests for equitable adjustment, the Army 
Corps unilaterally modified each task order to grant Al Ghanim “a time extension of 
44 non compensable days” for weather and security escort delays (62321 R4, tab 16 at 
1, 4; 62984 R4, tab 12 at 1; supp. R4, tab 20 at 1; supp. R4, tab 21 at 1).  The 
modification extended the contract completion date to November 7, 2018 (supp. R4, 
tab 20 at 1; tab 21 at 1).   
 
On August 22, 2019, the parties exchanged correspondence indicating an 
understanding that the requests for equitable adjustment were still open to discussion 
(supp. R4, tab 22).  The contracting officer’s representative stated, “We understand 
there are open REA for the JLOC projects . . . , but we need to confirm when are you 
submitting your final invoices” (supp. R4, tab 22 at 2).  Al Ghanim responded to the 
contracting officer’s representative and the contracting officer:  “[F]or JLOC’s REA, 
we will be submitting a reply to the KO’s letter next week.  Upon receiving KO’s 
reply to our letters, we will notify you with our decision on the submission of the final 
payments” (id.).  On September 10, 2019, the contracting officer’s representative 
requested an update, indicating that the contracting officer had not yet received Al 
Ghanim’s letter with the “JLOC closeout invoice” (id.).  Later that day the contracting 

8 
 
officer stated that “REA Response Letters for JLOC A & B” were “final” and “[t]his 
REA is considered closed and we need it close it” [sic] (supp. R4, tab 22 at 1).   
 
The next day, on September 11, 2019, Al Ghanim requested that the contracting 
officer issue a final decision under the CDA regarding its JLOC-A claim for delay 
costs of $206,621.96 (62321 R4, tab 2 at 1; supp. R4, tab 23 at 2 (email attaching the 
letter)).  On December 30, 2019, Al Ghanim requested a final decision under the CDA 
regarding its JLOC-B claim for delay costs of $206,328.89 (62984 R4, tab 4 at 1, 3).  
Responding to the contracting officer’s June 16, 2019 determination, Al Ghanim 
argued that there was no sovereign act that justified awarding only a time extension 
but not costs due to the delay (62321 R4, tab 2 at 1; 62984 R4, tab 4 at 3).  Al Ghanim 
also noted its belief that the contracting officer’s response to the request for equitable 
adjustment “was apparently not issued as a ‘final decision’” and “[t]hus we do not 
believe any jurisdictional requirements had attached for Appeal purposes to the 
ASBCA and/or the United States Corps [sic] of Federal Claims” (62321 R4, tab 2 at 1; 
62984 R4, tab 4 at 3).  Consistent with this understanding, Al Ghanim certified its 
claim per the CDA as delineated by the Contract’s Disputes clause (62321 R4, tab 2 
at 2; 62321 R4, tab 3 at 22 (Contract incorporating by reference, FAR 52.233-1 Alt. 1, 
DISPUTES (DEC 1991)); 62984 R4, tab 4 at 4; 62984 R4, tab 5 at 22).   
 
On October 9, 2019, Al Ghanim sent an email to the Army Corps Area 
Engineer (copying the contracting officer) that it still was “waiting” for a response 
from the Army Corps regarding its September 11, 2019 certified claim (supp. R4, 
tab 23 at 1).  In response on the same day (now more than 90 days after the June 2019 
request for equitable adjustment decisions), the Army Corps Area Engineer (copying 
the contracting officer) asserted that the June 2019 decision “WAS the final decision” 
and “[t]here is no other letter coming your way to respond” to the certified claim (id.).   
 
On December 20, 2019, Al Ghanim noticed an appeal to this Board based on a 
deemed denial of its claim regarding costs relating to the JLOC-A task order, which 
we docketed as ASBCA No. 62321.  On July 16, 2021, Al Ghanim noticed an appeal 
to this Board based on a deemed denial of its claim regarding costs relating to the 
JLOC-B task order, which we docketed as ASBCA No. 62984.  We subsequently 
granted Al Ghanim’s request to consolidate the appeals.  In its complaints, Al Ghanim 
stated that the “underlying dispute arises out of delay claims” and the “government 
failure to properly sustain its own employees where the government is responsible for 
the delay is a ‘constructive change’” (62321 compl. at 1-2; 62984 compl. ¶¶ 1, 7).   
IV. The Costs Sought by Al Ghanim on Appeal 
 
Al Ghanim has reduced the amount it seeks for the delay costs because (1) it 
determined that several days were the result of weather conditions (for which it seeks 
no compensation) rather than delays in arrival of the Air Force security escorts, and (2) 

9 
 
it now seeks only its direct costs and no longer seeks any overhead costs (app. R11 br., 
ex. A.1; Lakshmi aff. ¶ 15).  Al Ghanim seeks $131,174.88 in delay costs related to its 
work at JLOC-A (app. R11 br., ex. A.2 at 6).  Al Ghanim seeks $124,056.07 in delay 
costs related to its work at JLOC-B (app. R11 br., ex. A.3 at 101).   
 
To support its appeal, Al Ghanim relies on its daily quality control reports, in 
which it noted contemporaneously when Al Ghanim’s personnel arrived at the Visitor 
Control Center, when the security escort arrived at the Visitor Control Center (for most 
days), and when Al Ghanim arrived at the work site that day (app. R11 br., exs. A.4, 
A.5).  For each of the days of delay, Al Ghanim subtracts 30 minutes as priced into its 
daily costs for processing through the Visitor Control Center (app. R11 br., exs. A.2, 
A.3).  Based on these daily records and subtracting 30 minutes of time each day, Al 
Ghanim claims delays of between 10 minutes and four hours on 73 days for JLOC-A 
and 71 days for JLOC-B (app. R11 br., exs. A.1-A.3).  For each day, Al Ghanim 
calculated its total manpower daily rate by using the number and type of employees (as 
reflected in the contractor’s daily quality control reports and the government’s quality 
assurance reports), hours worked, and an average hourly rate from the labor rates for 
each day using the timecards of each employee that worked for Al Ghanim (app. R11 
br., ex. A.2 at 7-76; ex. A.3 at 130-73; exs. C & D; exs. A.4-A.5; 62321 R4, tab 69; 
62984 R4, tab 68).  For each day, Al Ghanim calculated its equipment rate based on 
the equipment it used that day (as reflected on the contractor’s quality control reports 
and the government’s quality assurance reports) using the “actual values” for the 
hourly rates of the equipment identified by name and serial number (app. R11 br., 
ex. A.2 at 77-97; A.3 at 107-24; Lakshmi aff. ¶ 17; app. R11 br., exs. A.4-A.5; 62321 
R4, tab 69; 62984 R4, tab 68).  Al Ghanim stated that it owned all the equipment used 
(app. R11 br., ex. A.1 at 2).  
 
The Army Corps presented evidence analyzing Al Ghanim’s alleged delays 
(supp. R4, tab 39).  The agency’s cost analyst questioned the reliability and sufficiency 
of Al Ghanim’s documentation to support its labor rates because Al Ghanim “did not 
provide certified payroll information” in addition to the daily timecards (supp. R4, 
tab 39 – Witherington decl. ¶ 27(f)).  Nevertheless, the cost analyst concluded that “the 
number and type of direct laborers claimed in the New Documentation was mostly 
supported by the Working Cards, but there were a small number of discrepancies 
where [Al Ghanim] either slightly overreported or underreported the number of 
laborers” (supp. R4, tab 39 – Witherington decl. ¶ 27(g)).   
 
The agency’s cost analyst also questioned the equipment rates because 
Al Ghanim allegedly failed to include information regarding the “equipment’s year 
purchased, make, model, tire type, and engine type” that would allow confirmation of 
“industry standard active and standby rates” (supp. R4, tab 39 – Witherington decl. 
¶ 27(d)(iii)).  The analyst asserted that the equipment should be billed at a standby or 
idle rate “because it is not actively being operated and used,” during the delay, which 

10 
 
would result in a “lower hourly rate based on use and equipment depreciation,” but it 
“appear[ed]” that Al Ghanim used its “active rate for all equipment” (supp. R4, tab 39 
– Witherington decl. ¶¶ 27(d)(i) & (ii)).   
 
Despite questioning the labor and equipment documentation, the cost analyst 
nevertheless used Al Ghanim’s cost information in assessing the delay costs (supp. R4, 
tab 39 – Witherington decl. ¶¶ 25(a)-(b)).  The cost analyst reviewed Al Ghanim’s cost 
and supporting documentation and re-calculated Al Ghanim’s delay costs (id.).  First, 
the cost analyst determined that Al Ghanim “provided no justification . . . as to why 
[Al Ghanim] included additional time past the escorts’ arrival” at the Visitor Control 
Center, so any travel time from the Visitor Control Center to the site was eliminated 
from his calculation of recoverable delay costs (id. ¶ 27(a); tabs 39g-39h).  Second, the 
cost analyst removed any days where Al Ghanim provided no supporting 
documentation (such as quality control reports or approved security escort request 
forms) to prove when the security escorts arrived or were supposed to arrive at the site 
(supp. R4, tab 39 – Witherington decl. ¶¶ 25(f)(i)-(ii) & (v); tabs 39e & 39f (red and 
orange highlights)).  Third, the cost analyst removed any days where adverse weather 
caused work stoppages or Al Ghanim encountered wet site conditions (supp. R4, tab 
39 – Witherington decl. ¶¶ 25(f)(iii) & (iv); tabs 39e & 39f (blue and yellow 
highlights)).   
 
For the remaining days, the cost analyst calculated the delays from the time 
when Al Ghanim arrived at the Visitor Control Center (whether on-time or late) 
through when the security escorts arrived at the Visitor Control Center (subtracting out 
30 minutes for Al Ghanim’s processing through security at the center) (supp. R4, 
tab 39 – Witherington decl. ¶ 29, tabs 39e-39h).  The cost analyst then multiplied the 
delay time for each day with Al Ghanim’s equipment and personnel costs for the day 
(supp. R4, tab 39 – Witherington decl. ¶ 29; tabs 39g & 39h).  The cost analyst 
concluded that Al Ghanim should recover for 31.14 hours of delay and $17,940 for 
JLOC-A, and 26.7 hours of delay and $14,936 for JLOC-B (supp. R4, tab 39 – 
Witherington decl. ¶ 29; tabs 39g & 39h).  In total, the cost analyst concluded that Al 
Ghanim would be entitled to $32,876 in compensable delays for both JLOC-A and 
JLOC-B (supp. R4, tab 39 – Witherington decl. ¶ 29; tabs 39g & 39h). 
 
The government initially moved for summary judgment on its sovereign acts 
defense and the parties briefed the matter.  The parties then requested that the entire 
appeal be submitted on the record under ASBCA Rule 11, including agreeing to treat 
the summary judgment briefing of the sovereign acts defense under the same standard 
of review as Rule 11 instead of the summary judgment standard of review.   

11 
 
DECISION 
 
I. Standard of Review 
 
Board Rule 11 allows the parties to waive a hearing and submit an appeal on 
the record.  Board Rule 11(a); Consorzio Stabile GMG S.c.ar.l., ASBCA No. 62753, 
23-1 BCA ¶ 38,347 at 186,213.  Under Board Rule 11, we conduct a “trial on the 
record;” we may weigh evidence, including resolving any disputed facts in making our 
findings of fact and rendering our decision.  D-STAR Eng’g Corp., ASBCA 
Nos. 62075, 62780, 25-1 BCA ¶ 38,816 at 188,819, 188,826.  We conduct a de novo 
review without deference to the contracting officer’s final decisions.  Dep’t of Transp. 
v. Eagle Peak Rock & Paving, Inc., 69 F.4th 1367, 1374-76 (Fed. Cir. 2023); 
41 U.S.C. § 7103(e); ASBCA Rule 10(c), (d). 
 
Al Ghanim, as the proponent of the claims, bears the burden of proof.  
FlightSafety Int’l, Inc., ASBCA No. 62659, 23-1 BCA ¶ 38,245 at 185,709, aff'd, 130 
F.4th 926 (Fed. Cir. 2025).  The Army Corps bears the burden of proving its 
affirmative defense invoking the sovereign acts doctrine.  Conner Bros. Constr. Co. v. 
Geren, 550 F.3d 1368, 1371 (Fed. Cir. 2008) (“The doctrine is an affirmative defense 
that is an inherent part of every government contract.”); Frazier Invs., Inc., ASBCA 
No. 63001, 23-1 BCA ¶ 38,313 at 186,042 (“As the proponent of any affirmative 
defense, the [government] bears the burden of proof.”). 
 
II. Jurisdiction – Al Ghanim Timely Appealed 
 
Neither party has challenged our jurisdiction to consider Al Ghanim’s appeals 
but based on our review of the record we are obligated to raise the issue of timeliness 
sua sponte to assure that the Board has jurisdiction.  White Balad Co., ASBCA 
No. 62934, 22-1 BCA ¶ 38,056 at 184,786.  We must assess whether the Army Corps’ 
June 2019 determinations regarding Al Ghanim’s requests for equitable adjustment 
triggered the running of the 90-day statute of limitations for bringing appeals to the 
Board, which is jurisdictional and may not be waived.  41 U.S.C. § 7104(a) (“A 
contractor, within 90 days from the date of receipt of a contracting officer’s decision 
under section 7103 of this title, may appeal the decision to an agency board as 
provided in section 7105 of this title.”); Kellogg Brown & Root Servs., Inc., ASBCA 
No. 62681 et al., 22-1 BCA ¶ 37,974 at 184,426 (“The 90-day limitation is 
jurisdictional and, thus, may not be waived.”).  We conclude that Al Ghanim’s appeals 
were timely because the agency did not treat the determinations as final and 
prejudicially failed to include the required appeal rights in its June 2019 
determinations. 
 
Al Ghanim labeled its November 2018 submissions as requests for equitable 
adjustments (62321 R4, tab 57; 62984 R4, tab 3).  However, the Federal Circuit has 

12 
 
instructed that labels are not dispositive as to whether a submission is a request for 
equitable adjustment or a claim.  Zafer Constr. Co. v. United States, 40 F.4th 1365, 
1367-68 (Fed. Cir. 2022); Hejran Hejrat Co. v. United States Army Corps of Eng’rs, 
930 F.3d 1354, 1357 (Fed. Cir. 2019).  We look to three objective criteria to assess 
whether a submission is a claim rather than a request for equitable adjustment:  (1) the 
submission must meet the definition of a “claim” as defined by the Disputes clause in 
a contract (and FAR); (2) the submission includes a CDA certification (or some type 
of sworn statement that can be perfected into a CDA certification); and (3) the 
contractor must request a final decision from the contracting officer.  Mindseeker, Inc., 
ASBCA No. 63197, 24-1 BCA ¶ 38,666 at 187,960 (citing Zafer Constr., 40 F.4th 
at 1367-68).   
 
First, Al Ghanim’s November 2018 submissions met the definition of a 
monetary “claim” under the CDA – “a written demand or written assertion by one of 
the contracting parties seeking, as a matter of right, the payment of money in a sum 
certain . . . arising under or relating to this contract.”  FAR 52.233-1(c) (incorporated 
by reference in the Contract, 62321 R4, tab 3 at 22; 62984 R4, tab 5 at 22); Zafer 
Constr., 40 F.4th at 1367 (recognizing that the FAR definition of a claim governs the 
use of the term under the CDA).   
 
Second, the November 2018 submissions included a certification per the 
Contract’s Requests for Equitable Adjustment clause (not under the CDA) (62321 R4, 
tab 57 at 2; 62984 R4, tab 3 at 2).  DFARS 252.243-7002 (incorporated by reference in 
Contract, 62321 R4, tab 3 at 23; 62984 R4, tab 5 at 23 (same)).  That is some evidence 
that Al Ghanim meant the submissions to be requests for equitable adjustment, but it is 
not dispositive to whether the document constituted a certified claim because any 
defective certification can be perfected into a CDA certification by statute.  BAE Sys. 
Ordnance Sys., Inc., ASBCA No. 62416, 21-1 BCA ¶ 37,800 at 183,578 (noting “that 
the use of the REA certification [does] not prevent a submission from being a valid 
claim since the REA certification, notwithstanding its limitations, could be considered 
a defective, but curable CDA certification”); 41 U.S.C. § 7103(b)(3) (“A defect in the 
certification of a claim does not deprive a court or an agency board of jurisdiction over 
the claim.”).   
 
Third, Al Ghanim requested a final decision from the contracting officer.  
During the parties’ negotiations they treated the submission as a request for equitable 
adjustment (supp. R4, tabs 16, 17; tab 40 – Yassin decl. ¶¶ 13-18).  However, after 
negotiations broke down, Al Ghanim’s May 2019 submission included a “draft” 
document titled “Letter Request for Contracting Officer Final Decision (‘COFD’) 
under the Contract Disputes Act (‘CDA’)” and requesting “that the Government can 
immediately review the matter for a mutual and amicable finalization, and . . . . [i]f 
resolution cannot be achieved bilaterally, then consider this a ‘Claim’ under the 
Contract Disputes Act” (62984 R4, tab 56 at 2; 62321 R4, tab 58 at 2).  Thus, Al 

13 
 
Ghanim’s May 2019 submission (although lacking any certification) met the third 
requirement for a claim:  making a request for a final decision from the contracting 
officer and we hold that, at that point, the requests for equitable adjustment were 
definitively a CDA claim. 
 
Given the circumstances above, the contracting officer’s June 2019 
determinations could be considered final decisions under the CDA, triggering the 90-
day statute of limitations for filing an appeal before the Board.  Here, nevertheless, Al 
Ghanim reasonably believed that there was no final decision on a claim for it to 
appeal, and in such circumstances, the appeal clock does not run.  See Guardian 
Angels Medical Service Dogs, Inc. v. United States, 809 F.3d 1244, 1250-51 (Fed. Cir. 
2016).  As discussed above, the June 16, 2019 responses from the contracting officer 
constituted final decisions on the requests for equitable adjustments that we have 
found to meet the definition of “claims.”  But they were followed immediately by 
discussion between the Army Corps and Al Ghanim revisiting the issues in the 
requests for equitable adjustment and treating them as “open” (supp. R4, tab 22 at 2).  
Such discussions after the issuance of a final decision “serve to vacate the earlier 
decision along with the accompanying appeal period,” because they demonstrate that 
the decision is non-final.  Guardian Angels, 809 F.3d at 1250 (quoting Royal Int’l 
Builders Co., ASBCA No. 42637, 92-1 BCA ¶ 24,684 at 123,135 (emphasis omitted)); 
BR Grp., ASBCA No. 63507, 24-1 BCA ¶ 38,699 at 188,158 (finding an appeal timely 
where agency indicated reconsideration of the final decision “was at least a 
possibility”).  Thus, the government’s participation in additional talks make the June 
16, 2019 decisions non-final (and the indicia of non-finality is strengthened by the 
contracting officer’s failure to include the statutorily-required notice of appeal rights in 
the June 16 decisions, as discussed below). 
 
Moreover, the contracting officer’s email on September 10, 2019 – stating that 
the June decisions were “final,” and that “this REA is considered closed and we need 
to close it” –  did not reset the final decision date back to June 16, 2019 (supp. R4, 
tab 22 at 1).  The Army Corps’ “after-the-fact” characterizations do not change the 
effects of its prior actions, which kept the requests for equitable adjustment open.  
Guardian Angels, 809 F.3d at 1250.   
 
Nor did the September 10, 2019 email reset the appellate clock.  Even if we 
considered the September 10, 2019 email to nominally meet the criteria for a new final 
decision on a “claim,” the Army Corps’ failure to include the statutorily-required 
appeal rights prevented the appeal clock from running, because of actual prejudice to 
Al Ghanim.  In particular, the CDA requires that the contracting officer “issue a 
decision in writing,” provide it by mail or otherwise to the contractor, 41 U.S.C. § 
7103(d), and “state the reasons for the decision reached and shall inform the contractor 
of the contractor’s rights as provided in this chapter.” 41 U.S.C. 7103(e); FAR 
33.211(a)(4)(v); Mindseeker, 24-1 BCA ¶ 38,666 at 187,963 (“The CDA requires that 

14 
 
a contracting officer’s final decision must provide a contractor with notice of its right 
to appeal to a board or file suit at the U.S. Court of Federal Claims.”).  The contracting 
officer’s email on September 10, though furnished to Al Ghanim, provided no 
explanation of its basis, whatsoever.  Nevertheless, it referred to the June letters 
responding to the requests for equitable adjustment and arguably adopted the 
reasoning of the June letters.  Thus, apart from its failure to include the appeal rights 
notice, we could find the email to meet the bare bones requirements of a contracting 
officer’s final decision. 
 
With respect to the advisement of rights, the CDA established the appeal rights 
notice requirement for the “protection of the contractor,” but a contractor still must 
show detrimental reliance on the government’s failure to provide the notice of appeal 
right to excuse an untimely appeal.  Decker & Co. v. West, 76 F.3d 1573, 1579 (Fed. 
Cir. 1996); see also Fla. Dep’t of Ins. v. United States, 81 F.3d 1093, 1098 (Fed. Cir. 
1996).  Detrimental reliance is when the contracting officer’s “decision, by words of 
commission or omission, actually misled the contractor to its prejudice regarding its 
appellate rights.”  Access Personnel Servs., Inc., ASBCA No. 59900, 16-1 BCA 
¶ 36,407 at 177,518.  “[N]either Decker nor the CDA imposes an affirmative 
obligation on a contractor to ascertain its appeal rights.  The CDA places the 
obligation of notification squarely on the shoulders of the government.”  Id.  “[W]here 
there is a failure to properly advise the contractor of its appeal rights that failing may 
prevent the ‘appeal clock’ from running.”  JAAAT Tech. Servs., LLC, ASBCA 
No. 61792 et al., 21-1 BCA ¶ 37,878 at 183,951. 
 
Here, Al Ghanim has demonstrated detrimental reliance based on the 
government’s failure to provide notification of the appeal rights.  Critically, both 
parties treated the contracting officer’s June 16, 2019 letters as merely addressing what 
both parties saw as requests for equitable adjustments that had not ripened to claims.  
This is why, the day after being informed by the contracting officer that the requests 
for equitable adjustment were considered closed, Al Ghanim submitted a certified 
claim to the contracting officer.  This would not have happened if either set of 
documents that could be read as final decisions (the June 16 letters and the September 
10 emails) had included the notice of appeal rights which had made clear that the time 
for negotiating with the Army Corps was over.  Indeed, Al Ghanim’s October 9 email 
inquiry to the Army Corps’ Area Engineer (copying the contracting officer) about the 
status of the claim demonstrated that it was unaware that the decisions were final and 
that its last recourse was to appeal the decision.  Accordingly, in the context presented 
here, we find it more likely than not that Al Ghanim would have perfected its appeal in 
a timely manner if the government had included the mandatory appellate rights 
notification in its June, September, or October communications.  Al Ghanim was 
prejudiced by the government’s failure to provide the appeal rights in any final 
decisions.  Thus, its appeals are timely. 
 

15 
 
III. The Government Has Not Proved the Sovereign Acts Defense 
 
“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., 550 
F.3d at 1371 (quoting Horowitz v. United States, 267 U.S. 458, 461 (1925)).  When the 
government contracts with a private party, the sovereign acts doctrine balances the 
government’s “rights and duties” as governed by the “law applicable to contracts 
between private individuals” with the government’s “need for freedom to legislate” or 
regulate.  United States v. Winstar Corp., 518 U.S. 839, 895-96 (1996) (quoting Lynch 
v. United States, 292 U.S. 571, 579 (1934)).3 
 
To invoke the sovereign acts doctrine as an affirmative defense, the government 
must prove two things:  (1) a public and general government act; and (2) commercial 
impracticability or impossibility of performance by the government resulting from that 
act.  Winstar, 518 U.S. at 891-910; Klamath Irrigation Dist. v. United States, 635 F.3d 
505, 520-22 (Fed. Cir. 2011) (quoting, inter alia, Yankee Atomic Elec. Co. v. United 
States, 112 F.3d 1569, 1574 (Fed. Cir. 1997) for the proposition that “the United States 
. . . as a contractor cannot be held liable for an obstruction of performance of the 
particular contract resulting from its public and general acts as a sovereign”); Stockton 
E. Water Dist. v. United States, 583 F.3d 1344, 1366 (Fed. Cir. 2009); Chugach Fed. 
Solutions, Inc., ASBCA No. 62712 et al., 24-1 BCA ¶ 38,681 at 188,046-47.   
 
The Army Corps asserts that its security escort procedures constituted a 
sovereign act, which bars Al Ghanim from receiving monetary relief and limited Al 
Ghanim’s relief to the non-monetary time extensions that the agency already 
unilaterally provided to Al Ghanim (gov’t R11 br. at 15-19; gov’t SJ mot. at 1-2, 9-10; 
gov’t SJ reply at 1-2).  Al Ghanim asserts that the Army Corps has failed to prove 
impossibility to establish the sovereign acts defense (app. R11 br. at 8-9; app. SJ opp’n 
at 12-13).  The Army Corps counters that it need not prove impossibility because Al 
Ghanim asserts only delays and not a total material breach of the contract (gov’t SJ 
mot. at 9-10; gov’t SJ reply at 6-7; gov’t R11 br. at 16-17).  The government’s motion 
does not clearly state whether the Air Force’s Security Instruction 32-1002 or the 
Air Force’s implementation of that escort requirement constitutes the public and 
general act entitled to the Sovereign Acts defense.  Regardless of the interpretation, we 
reject the agency’s assertion and conclude that the sovereign acts defense does not 
apply. 
 
 
3 Although Justice Souter’s Winstar decision commanded only the support of a 
plurality of justices, the Federal Circuit “has treated that opinion as setting forth 
the core principles underlying the sovereign acts doctrine.”  Conner Bros., 550 
F.3d at 1374.   

16 
 
A. The Requirement to Have Security Escorts was a Public & General 
Government Act But Does Not Satisfy The Impossibility Requirement 
 
The Army Corps asserts that the requirement to have security escorts 
constituted a public and general act (gov’t SJ mot. at 9-15; gov’t R11 br. at 15-17).  
The agency relies on an order from the Commander of the Ninth Air Force requiring 
security escorts as the public and general act (supp. R4, tab 24 at 3 (Air Force Central 
Instruction 32-1002); tab 36 – Lantz decl. ¶ 4).  Al Ghanim does not dispute that this 
order applied during the term of this Contract when the government required 
Al Ghanim to request and receive approval for security escorts. 
 
1. The Order – Air Force Central Instruction 32-1002 – Was A 
Public And General Act 
 
We must determine whether the act was a “genuinely public and general act 
that only incidentally falls upon the contract” or was “simply one designed to relieve 
the Government of its contract duties[.]”  Klamath, 635 F.3d at 521 (quoting Stockton, 
583 F.3d at 1366); see also Winstar, 518 U.S. at 895-96 (assessing whether the act is 
“attributable to the Government as contractor” or sovereign).  To assess the public and 
general nature of an act, we look at whether (1) the government’s act was specifically 
directed at nullifying contract rights or relieving the government of its contractual 
obligations, and (2) the impact on public contracts (whether direct or indirect) is 
incidental to a broader governmental objective.  Winstar, 518 U.S. at 898; Conner 
Bros., 550 F.3d at 1374-75.   
 
First, the Commander’s order requiring security escorts on bases in the Ninth 
Air Force area of responsibility was neither directed at nullifying contract rights nor 
aborting contractual performance.  Conner Bros., 550 F.3d at 1374; see also Zafer 
Taahhut Insaat ve Ticaret A.S. v. United States, 833 F.3d 1356, 1364-65 (Fed. Cir. 
2016).  The Commander’s order required escorts to prevent “sabotage or disclosure to 
enemy forces” (supp. R4, tab 24 at 3 (Air Force Central Instruction 32-1002)).  This 
was a relevant national security concern, and the instruction was an order issued by a 
military commander, not a contracting official.  Conner Bros., 550 F.3d at 1378-79 
(discussing Wilson v. United States, 11 Ct. Cl. 513 (1875)).  The government gained 
no economic advantage vis-a-vis the contract by requiring the use of security escorts.  
See Conner Bros., 550 F.3d at 1375.     
 
Second, the Commander’s order requiring escorts impacted Al Ghanim’s 
contract and other public contracts only incidentally to a broader governmental 
objective.  Winstar, 518 U.S. at 898.  On the one hand, the order stated its intent was to 
require escorts for all local national, other country national, and contract employees 
(supp. R4, tab 24 at 3 (Air Force Central Instruction 32-1002)).  However, the order 
clarified that it applied to personnel “performing contracted services” that were local 

17 
 
nationals or other country nationals (id.).  Despite the order’s impact on Al Ghanim 
and all other service contractors at the installations it covered, it is still permissible “as 
long as the effect on the contractor’s contract rights is incidental to a broader 
government objective,” which it is.  Conner Bros., 550 F.3d at 1376.    
 
2.  The Order Did Not Render Performance Impossible or 
Commercially Impracticable 
 
While the Army Corps has demonstrated the order requiring security escorts 
constituted a public and general act, the Army Corps must still prove impossibility or 
impracticability of performance.  ANHAM FZCO, LLC, ASBCA No. 59283, 17-1 
BCA ¶ 36,817 at 179,442 (“The government is excused from performance under the 
sovereign acts defense only when the sovereign act renders the government’s 
performance impossible.”).  The Army Corps asserts that it need not prove 
impossibility because this “is not a regulatory amendment sovereign act case” where 
there is a total material breach like Winstar (gov’t SJ mot. at 9-10; gov’t SJ reply at 6-
7; gov’t R11 br. at 16-17).  Not so.  The government must still prove impossibility or 
commercial impracticability to rely on the sovereign acts defense to relieve it of 
monetary liability. 
 
The Army Corps asserts that it need not prove impossibility pointing to two 
decisions where we did not discuss impossibility in our sovereign acts analysis:  (1) 
Garco Constr., Inc., ASBCA Nos. 57796, 57888, 14-1 BCA ¶ 35,512 at 174,072-74; 
Garco Constr., Inc., ASBCA Nos. 57796, 57888, 15-1 BCA ¶ 36,135 at 176,378, 
aff’d, 856 F.3d 938 (Fed. Cir. 2017); and (2) Nassar Grp. Int’l N.G.I. S.A.L. (Offshore) 
R.C., ASBCA No. 58451 et al., 22-1 BCA ¶ 38,206 at 185,546-47.  In Garco, 
however, the contractor “failed to argue that the government did not satisfy the 
‘impossibility’ requirement of the sovereign act defense,” and waived that argument.  
Garco, 856 F.3d at 942 n.2 (quoting Conner Bros., 550 F.3d at 1379).  Here, 
Al Ghanim has raised impossibility.  In Nassar, the contractor attempted to assert 
impossibility of performance as an affirmative claim, so the contractor had no reason 
to challenge the government on this point.  See Nassar Grp. Int’l, ASBCA No. 58451 
et al., 19-1 BCA ¶ 37,405 at 181,831.   
 
As we have recently reiterated, the caselaw “absolutely requires application of 
the impossibility test as a component of the sovereign acts defense.”  Chugach, 24-1 
BCA ¶ 38,681 at 188,047.  And, it would be reversible error if we failed to assess 
impossibility, once raised.  Klamath, 635 F.3d at 522 (vacating trial decision for 
failing to assess impossibility in sovereign acts defense).  We have regularly found that 
the government must prove impossibility or commercial impracticability when 
invoking the sovereign acts defense, even where the contractor seeks equitable 
adjustments based on delays, changes, or other remedy-granting clauses under a 
contract rather than alleging a total material breach.  Chugach, 24-1 BCA ¶ 38,681 

18 
 
at 188,045 (Changes clause and agency specific health and safety clause); GEMS Env’t 
Mgmt. Servs., ASBCA No. 61737 et al., 24-1 BCA ¶ 38,621 at 187,745-46 (delay 
claim where government demonstrated impossibility); McCarthy HITT – Next NGA 
West JV, ASBCA Nos. 63571, 24-1 BCA ¶ 38,483 at 187,041-42 (declining to dismiss 
constructive change, suspension of work, and implied covenant for good faith and fair 
dealing claims based on the sovereign acts doctrine, because it was not clear “that the 
government will be able to establish the second element, impossibility”); StructSure 
Projects, Inc., ASBCA No. 62927, 23-1 BCA ¶ 38,416 at 186,680 (Changes clause), 
aff’d, No. 2024-1251, 2025 WL 2860720 (Fed. Cir. Oct. 9, 2025); APTIM Fed. Servs., 
LLC, ASBCA No. 62982, 22-1 BCA ¶ 38,127 at 185,219 (Changes clause).  Thus, 
impossibility applies regardless of whether the contractor relies on a remedy granting 
clause under the contract or asserts a breach claim relating to the contract.
  
 
To establish impossibility, the government must prove (1) a supervening event 
that made performance impossible or commercially impracticable, (2) the contract 
assumed the non-occurrence of the supervening event, (3) the government as 
contractor,
4 was not at fault for the occurrence of the supervening event, and (4) the 
government did not assume the risk of the occurrence.  Seaboard Lumber Co. v. 
United States, 308 F.3d 1283, 1294-95 (Fed. Cir. 2002); see also Winstar, 518 U.S. 
at 904-10; Chugach, 24-1 BCA ¶ 38,681 at 188,047.  Although the Board sometimes 
decides impossibility based on a single, dispositive element, we review each element. 
 
First – and the government has no defense for this – no supervening event made 
performance impossible or commercially impracticable.  Seaboard, 308 F.3d at 1294-
95.  A supervening event occurs after the parties enter into a contract.  Shubhada 
Indus., Inc., ASBCA No. 54016, 08-1 BCA ¶ 33,733 at 167,019 (noting a party “must 
show that a supervening event, after it entered into the contract, made performance 
impracticable”); R
ESTATEMENT (SECOND) OF CONTRACTS § 261 (1981) (supervening 
impracticability happens “after a contract is made”).  Here, the requirement for 
security escorts existed before the parties entered the Contract and there was no 
supervening event. 
 
Second, the Contract did not assume the non-occurrence of the requirement that 
Al Ghanim obtain security escorts.  Seaboard, 308 F.3d at 1294-95; RESTATEMENT 
(SECOND) OF CONTRACTS § 261 cmt. b (1981).  To the contrary, the Contract 
 
4 In applying this four-part impossibility test from Seaboard Lumber to the sovereign 
acts defense, we have previously referenced “the government” in this element, 
rather than “the government as contractor.”  See, e.g., Chugach, 24-1 BCA 
¶ 38,681 at 188,047 (citing APTIM, 22-1 BCA ¶ 38,127 at 185,219).  
Notwithstanding that slight omission in the past, in applying impossibility to the 
sovereign acts defense requires such a differentiation, about which we have 
been very clear.  See APTIM, 22-1 BCA ¶ 38,127 at 185,219. 

19 
 
incorporated the requirement that Al Ghanim obtain security escorts and the standard 
Suspension of Work clause (62321 R4, tab 3 at 22, 53-54; 62984 R4, tab 5 at 22, 53-
54).   
 
Third, the government as contractor is at fault for the delays caused by the 
required security escorts.  Seaboard, 308 F.3d at 1294-95.  Although not the only way 
to assess fault, we have sometimes analyzed this factor by looking at whether the 
government issued instructions or orders implementing the public and general act 
(which is how the Army Corps frames it).  ANHAM FZCO, ASBCA No. 58999, 20-1 
BCA ¶ 37,745 at 183,189; Home Ent., Inc., ASBCA No. 50791, 99-2 BCA ¶ 30,550 
at 150,861.  The Army Corps asserts that it was not responsible for any delays because 
the contracting officer did not issue instructions or orders implementing the security 
escorts requirement, but instead the Contract deferred to a different government 
agency – the Air Force – to schedule and conduct the security escorts, not the 
contracting officer (gov’t SJ reply at 11-14; gov’t R11 br. at 17-18).  Indeed, the 
Contract states that the Air Force would provide security escorts and, during 
performance, Al Ghanim submitted request forms to the Air Force for approval of 
dates and times of escorts (62321 R4, tab 3 at 56; 62984 R4, tab 5 at 56; app. R11 br., 
ex. F at 147; supp. R4, tab 30).  Yet, “[w]hen the sovereign can implement its policy 
without violating the contractual rights of the parties, the Government is liable for the 
resulting damages.”  Home Ent., 99-2 BCA ¶ 30,550 at 150,861; see also Borderland 
Spraying Serv., AGBCA No. 90-180-1, 93-3 BCA ¶ 26,214 at 130,463 (stating that 
“the Government may be liable for its sovereign acts if it does not implement them in 
the least restrictive or least costly manner”).  Here, the government would not have 
been liable to Al Ghanim for rejecting the requests due to a lack of availability, but 
once Al Ghanim complied with all the procedures associated with the security escort 
policy and the Air Force approved a request (with specific date and time) the 
government bears liability for the resulting delays.   
 
Fourth, we look at whether the government assumed the risk of the supervening 
occurrence of delay resulting from the security escort requirement.  Seaboard, 308 
F.3d at 1294-95; see also Piszel v. United States, 833 F.3d 1366, 1380-81 (Fed. Cir. 
2016).  We have sometimes (but not always) characterized this assumption of risk as 
whether “the government expressly or impliedly agrees to pay the contractor’s losses 
due to the sovereign acts” (which is the way that the Army Corps frames this issue).  
ANHAM, 20-1 BCA ¶ 37,745 at 183,189; see also Amino Bros. Co. v. United States, 
372 F.2d 485, 525 (Ct. Cl. 1967) (“The Government cannot make a binding contract 
that it will not exercise a sovereign power, but it can agree in a contract that if it does 
so, it will pay the other contracting party the amount by which its costs are increased 
by the Government’s sovereign act.”); Altanmia Com. Mktg., ASBCA No. 55393, 09-1 
BCA ¶ 34,095 at 168,582 (“[I]t is settled that the government may contractually agree 
to compensate contractors for losses due to its sovereign acts, either by an implied or 
an express agreement.”).  Where the risk is “foreseeable there should have been a 

20 
 
provision for it in the contract, and the absence of such a provision gives rise to the 
inference that the risk was assumed.”  Seaboard, 308 F.3d at 1295 (quoting Winstar, 
518 U.S. at 905 (internal quotation omitted)).   
 
Here, even assuming there was a supervening event, the Contract placed the 
risk on the government for delays in the arrival of approved security escorts.  The 
Army Corps alleges five contractual provisions placed the risk of government delay on 
Al Ghanim, not the agency:  (1) the security requirements would “take precedence 
over the accomplishment of the work under this contract” (62321 R4, tab 3 at 54; 
62984 R4, tab 5 at 54); (2) the government’s “capacity . . . to provide Escorts is 
limited, and subject to unavoidable shortages” (id.); (3) adjustments of work schedules 
would be subject to the “Government’s ability to provide Escorts” (id.);  (4) the escort 
request forms stated that “an escort request does not guarantee availability” (supp. R4, 
tab 30); and (5) the requirement for Al Ghanim to price in the cost of “complying with 
escort policies” (62321 R4, tab 3 at 40, 54; 62984 R4, tab 5 at 40, 54; gov’t SJ reply 
at 14-16; gov’t R11 br. at 18-19, 22).  While these provisions served to warn 
Al Ghanim that the government could not guarantee escorts based on submitting escort 
request forms and that Al Ghanim bore the costs of complying with the process of 
requesting security escorts, it says nothing about which party should bear the costs of 
unreasonable delay once the government approved an escort and represented to 
Al Ghanim that it would be provided.  By approving the escort for a specific day and 
time, the government affirmatively determined its ability to provide escorts 
(notwithstanding shortages and that security would take precedence over completion 
of the work).  Al Ghanim may seek recovery for delays once it received approval for 
escorts on a particular day and time based on the standard risk shifting provisions 
regarding delays in the Contract.  Winstar, 518 U.S. at 908-09 (stating that government 
contract “provisions shifting financial responsibility to the Government for events 
which might occur in the future” that “may be triggered by sovereign government 
action does not render the relevant contractual provisions any less binding” (quoting 
Hughes Commc’ns Galaxy, Inc. v. United States, 998 F.2d 953, 958-59 (Fed. Cir. 
1993)).  
 
B. The Government’s Implementation Of The Security Escort Provisions 
Were Not Public And General Acts 
 
The Army Corps’ argument can also be read as alleging that the public and 
general acts were the Air Force’s implementation of the security escort requirement, 
which required Air Force approval of the day-to-day “escort actions” (gov’t SJ mot. 
at 10-11; gov’t R11 br. at 16).  However, the day-to-day escort actions were required 
and implemented by the Contract, including requiring notification and other 
procedures to the Army Corps’ contracting officials; and the Air Force’s approval of 
each security escort necessarily related to an individual contractor – Al Ghanim 
(62321 R4, tab 3 at 54; 62984 R4, tab 5 at 54; app. R11 br., ex. F).   

21 
 
Specifically, the Contract required Al Ghanim to provide the contracting officer 
with twice-weekly reports of Al Ghanim’s expected manpower to give the contracting 
officer accurate estimates to plan how many security escorts would be necessary 
(62321 R4, tab 3 at 54; 62984 R4, tab 5 at 54).  By noon each day, Al Ghanim had to 
provide the contracting officer with the next day’s personnel and crew size, and 
required Al Ghanim to “confirm that the required escorts will be available” (62321 R4, 
tab 3 at 54; 62984 R4, tab 5 at 54).  The Army Corps’ project manager also “actively 
monitored” the force protection process to avoid or mitigate delays (supp. R4, tab 35 – 
Heffern decl. ¶¶ 13-15).  Thus, the Army Corps’ contracting officer and personnel still 
managed some of the contractual requirements for security escorts. 
 
Moreover, usually enlisted personnel at the installation security office approved 
the day-to-day escort actions, which seems a far cry from an individual “clothed with 
the kind of executive power and authority to impose genuinely public and general 
requirements for the government of a sovereign character.”  HECO Pac. Mfg., Inc., 
ASBCA No. 63217, 25-1 BCA ¶ 38,902 at 189,376; (app. R11 br., ex. F).  We hold 
that the approval of the day-to-day security escort requests were not public and general 
acts.  Because we do not find the implementation to be public and general acts, we do 
not reach the question of impossibility on this point.  Other than Air Force Central 
Instruction 32-1002, the Army Corps has pointed to no other public and general act 
issued or performed by a comparable authority. 
IV. Al Ghanim Has Proved Some Compensable Delays 
 
Al Ghanim seeks its direct costs for the government’s security escort delays.
5  
The Army Corps challenges Al Ghanim’s proof of its damages.  Al Ghanim sometimes 
frames its claim as seeking “delay costs” for a “constructive change” under the 
Contract per the Changes clause (62321 compl. at 1-2; 62984 compl. ¶¶ 1, 7; app. R11 
reply br. at 13).  However, we typically will not resort to the Changes clause for delay 
claims unless the contract lacks a Suspension of Work clause.  Coley Properties Corp. 
v. United States, 593 F.2d 380, 385-86 (Ct. Cl. 1979) (seeking delay costs under the 
 
5 Al Ghanim’s briefs occasionally state that it is still seeking “overhead,” but the costs 
it submitted and defends as part of its Rule 11 briefing seek only direct costs, 
not indirect costs (app. R11 br. at 2, 3, 6; app. R11 reply br. at 6).  In any event, 
Al Ghanim neither provided any arguments or evidence supporting recovery of 
overhead costs nor, for example, applied the Eichleay formula for home office 
overhead.  See Melka Marine, Inc. v. United States, 187 F.3d 1370, 1374-75 
(Fed. Cir. 1999) (“The Eichleay formula is the only means approved in our case 
law for calculating recovery for unabsorbed home office overhead.” (discussing 
Eichleay Corp., ASBCA No. 5183, 60-2 BCA ¶ 2688)).  Nor did Al Ghanim 
attempt to rebut the Army Corps’ overhead arguments in Al Ghanim’s reply 
brief.  Whether Al Ghanim still seeks these costs, it has failed to prove them.   

22 
 
Changes clause in lease that did not have Suspension of Work clause); Webb Elec. Co. 
of Fl., Inc., ASBCA No. 54293, 07-2 BCA ¶ 33,717 at 166,939 (“[A]ny recovery by 
appellant is by way of an adjustment under the Suspension of Work clause, and not an 
equitable adjustment under the Changes clause.”), aff’d, 299 F. App’x 958 (Fed. Cir. 
2008); J
OHN CIBINIC, JR. ET AL., ADMINISTRATION OF GOVERNMENT CONTRACTS 548 
(5th ed. 2016) (noting that recovery for delays under the Changes clause “has usually 
occurred in situations where the contract contains no Suspension of Work clause”).  
Here, the Contract includes a Suspension of Work clause.  See FAR 52.242-14(b) 
(incorporated by reference in Contract, 62321 R4, tab 3 at 22; 62984 R4, tab 5 at 22).  
Thus, Al Ghanim more appropriately may seek to recover its delay costs as a 
constructive suspension under the Suspension of Work clause.   
 
“Constructive suspension occurs when work is stopped absent an express order 
by the contracting officer and the government is found to be responsible for the work 
stoppage.”  P.R. Burke Corp. v. United States, 277 F.3d 1346, 1359 (Fed. Cir. 2002).  
A contractor may recover for constructive suspensions if it establishes the government 
caused a “suspension, delay, or interruption [of performance]” for “an unreasonable 
period of time” that was not due to “any other cause, including the fault or negligence 
of the Contractor[,]” and resulted in “any increase in the cost of performance[.]”  
FAR 52.242-14(b); Triax-Pac., JV v. Stone, 958 F.2d 351, 353-54 (Fed. Cir. 1992).  
“What is a reasonable period of time for the government to do a particular act under 
the contract is entirely dependent upon the circumstances of the particular case.”  Tri-
Cor, Inc. v. United States, 458 F.2d 112, 131 (Ct. Cl. 1972).  “An initial portion of the 
delay can be reasonable followed by an additional period that is unreasonable.”  GSI 
Constr. Corp., ASBCA No. 63828, 25-1 BCA ¶ 38,851 at 189,050. 
 
The Army Corps challenges Al Ghanim’s delay claims asserting:  (1) none of 
Al Ghanim’s costs were reasonable because the Contract shifted all risk for security 
escort delays to the contractor; (2) even if Al Ghanim can recover, it has failed to 
provide sufficient cost documentation to support its direct costs; and (3) Al Ghanim 
has failed to prove that the government caused most of the claimed damages.  We 
review the agency’s objections in turn. 
 
A. Al Ghanim Did Not Assume the Risk of Security Escort Delays 
 
Refashioning what it argued regarding the sovereign acts defense, the Army 
Corps asserts that there could be no unreasonable delay because the Contract placed all 
the risk of delay on Al Ghanim and not the government (gov’t R11 br. at 21-23).  The 
Army Corps again points to the Contract’s provisions that required Al Ghanim to price 
in the “cost implications inherent in [the] accomplishment of work on secure 
installations” and “complying with escort policies;” and the warnings that shortages 
did not guarantee that the Air Force would approve escort requests (62321 R4, tab 3 
at 40, 54; 62984 R4, tab 5 at 40, 54).  The government again contends that this 

23 
 
contractual language shifted the risk to Al Ghanim for all compensable delays, relying 
on Phylway Constr., LLC, ASBCA No. 62961, 22-1 BCA ¶ 38,218, and M.A. 
Santander Constr., Inc., ASBCA No. 15882, 76-1 BCA ¶ 11,798.   
 
Notwithstanding the agency’s contention, the Contract included no provision 
triggering suspension of performance like in Phylway, 22-1 BCA ¶ 38,218 at 185,620-
21 (contract provision required suspension of performance anytime flood waters rose 
above a certain level).  Instead, the Contract just included a general warning that there 
may be escort shortages and, because of that, Al Ghanim needed to comply with the 
policies of notifying the contracting officer at noon prior to each workday regarding 
availability of escorts, and requesting and receiving approval for escorts on a particular 
day and time, which Al Ghanim did (62321 R4, tab 3 at 40, 54; 62984 R4, tab 5 at 40, 
54).  In M.A. Santander, the contractor sought its costs for complying with a contract’s 
security requirements, but Al Ghanim does not seek its costs for complying with 
obtaining security escorts (or the Contract’s other security requirements) or for the 
days the government could not provide escorts, but for unreasonable delays by the 
government after Al Ghanim complied with the Contract’s security requirements.  
M.A. Santander, 76-1 BCA ¶ 11,798 at 56,324-25.  Nor does Al Ghanim seek the costs 
of any delays caused by the Air Force’s denial of any of Al Ghanim’s security escort 
requests.  Only approved security escort requests are at issue in these appeals.  Thus, 
as we concluded above, Al Ghanim’s compliance with those policies shifted the risk of 
unreasonable delays to the government.   
 
B. Al Ghanim Provided Sufficient, Reliable Documentation to Evaluate its 
Labor and Equipment Costs 
 
The Army Corps challenges Al Ghanim’s cost documentation as insufficient 
(gov’t R11 br. at 28-29).  The Contract includes the Pricing of Contract Modifications 
clause which states, “When costs are a factor in any price adjustment under this 
contract, the contract cost principles and procedures in FAR part 31 and DFARS part 
231, in effect on the date of this contract, apply.”  DFARS 252.243-7001 (DEC 1991) 
(incorporated by reference in Contract, 62321 R4, tab 3 at 23; 62984 R4, tab 5 at 23); 
Superstaff, Inc., ASBCA No. 48062 et al., 97-1 BCA ¶ 28,845 at 143,887 (concluding 
that the Pricing of Contract Modifications clause made “standard cost principles” 
under FAR Part 31 applicable to assessing equitable adjustment costs (internal 
citations omitted)).  Generally, under the FAR’s cost principles, a contractor must 
provide “supporting documentation, adequate to demonstrate that costs claimed have 
been incurred[.]”  Int’l Dev. Solutions, LLC v. Sec’y of State, 105 F.4th 1375, 1380 
(Fed. Cir. 2024) (quoting FAR 31.201-2(d) (emphasis omitted)). 
 
The agency asserts Al Ghanim’s manpower or labor cost documentation is 
insufficiently reliable because the contractor has not provided certified payroll records 
for manpower costs and there were discrepancies in Al Ghanim’s analysis and its 

24 
 
timecards (gov’t R11 br. at 28-29).  Al Ghanim relies on its daily timecards to show 
which personnel worked on a given day and the hourly rate for each worker that day to 
determine the daily manpower rate (app. R11 br., ex. A.2 at 7-76; ex. A.3 at 130-73; 
exs. C & D).  Also, Al Ghanim listed the labor classification and hours worked on its 
quality control reports and the Army Corps’ daily quality assurance reports listed 
contractor personnel by labor classification (and sometimes by name) (app. R11 br., 
exs. A.4-A.5; 62321 R4, tab 69; 62984 R4, tab 68).  This documentation is sufficiently 
reliable to prove Al Ghanim incurred these direct labor delay costs.  D-STAR, 25-1 
BCA ¶ 38,816 at 188,834; Derian, Inc., ASBCA No. 62957, 23-1 BCA ¶ 38,425 
at 186,753 (permitting recovery where the contractor could only provide monthly 
timecards without describing “the type of work performed or any proof of payment”).  
Indeed, the agency’s cost analyst concluded that Al Ghanim’s direct labor analysis 
“was mostly supported by the Working Cards, but there were a small number of 
discrepancies where [Al Ghanim] either slightly overreported or underreported the 
number of laborers” (supp. R4, tab 39 – Witherington decl. ¶ 27g).  Thus, this data is 
sufficiently reliable to serve as a basis to assess Al Ghanim’s claimed delay costs.
6 
 
The agency also asserts Al Ghanim (1) has failed to include cost documentation 
supporting its equipment rates and (2) has apparently used the active rates for the 
equipment rather than inactive or idle rates as allegedly required during a suspension 
of work (gov’t R11 br. at 28-29).  First, Al Ghanim provided a serial number and 
description of each piece of equipment used for each day it claimed a delay, which it 
took from its daily quality control reports (app. R11 br., ex. A.2 at 77-97; A.3 at 107-
24; exs. A.4-A.5 (daily quality control reports listing equipment on-site)).  The Army 
Corps’ daily quality assurance reports also listed the equipment on-site each day 
(62321 R4, tab 69; 62984 R4, tab 68).  We conclude that this documentation suffices 
to prove Al Ghanim’s equipment costs.   
 
Second, the Army Corps’ cost analyst speculates that Al Ghanim is relying on 
its active rates and asserts that the equipment costs should be reduced for being idle 
during a suspension of work, citing J.D. Shotwell Co., ASBCA No. 8961, 65-2 BCA 
¶ 5243 at 24,689 (gov’t R11 br. at 29; supp. R4, tab 39 – Witherington decl. 
¶¶ 27(d)(i) &(ii)).  However, J.D. Shotwell and its progeny have reduced recovery of 
equipment costs for idleness when the contractor was unable to provide actual costs of 
 
6 The Army Corps’ cost analyst speculates that Al Ghanim only had one crew on site, 
not two separate crews working on JLOC-A and JLOC-B (supp. R4, tab 39 – 
Witherington decl. ¶ 27(h)).  However, the cost analyst does not provide an 
analysis beyond one spot example and concedes that it was “impossible to 
confirm” his speculation (id.).  That is not enough.  And, the Board has no 
obligation to “scour the record” to prove a party’s speculative arguments.  
Parsons Evergreene, LLC v. Sec’y of Air Force, 968 F.3d 1359, 1368 (Fed. Cir. 
2020); Nassar, 22-1 BCA ¶ 38,206 at 185,551. 

25 
 
the equipment and, instead, had to rely on predetermined rate schedules that were 
reduced to approximate actual cost rates that would be lower due to depreciation and 
wear and tear.  J.D. Shotwell, 65-2 BCA ¶ 5243 at 24,689 (using predetermined rates); 
see also L.L. Hall Constr. Co. v. United States, 379 F.2d 559, 568 (Ct. Cl. 1966) 
(noting that “for contractor-owned equipment, lacking actual cost records for the delay 
period,” the court used “the acquisition cost of each piece of equipment involved 
applied to the formula set forth in the [Associated General Contractors of America, 
Inc.] ownership expense manual and reduced by 50 percent for idle time”).  Those 
decisions follow the treatment of predetermined costs under the FAR (and the Armed 
Services Procurement Regulation (ASPR) in effect when those decisions were issued), 
but not actual rates.  FAR 31.105(d)(2)(i)(C) (discussing in the context of 
predetermined use rates that “[i]n periods of suspension of work pursuant to a contract 
clause, the allowance for equipment ownership shall not exceed an amount for standby 
cost as determined by the schedule or contract provision”); ASPR 15-402.1(c) (1963) 
(similar predecessor provision, but specifically requiring recovery of no more than “50 
percent” of the predetermined rate).   
 
Al Ghanim has provided its actual costs each day (app. R11 br., ex. A.1 at 2; 
ex. A.2 at 3-6; A.3 at 98-101).  Actual rates are preferred when assessing equipment 
costs and there is no similar requirement for reducing actual rates while on standby.  
FAR 31.105(d)(2)(i)(A) (“Actual cost data shall be used when such data can be 
determined for both ownership and operating costs for each piece of equipment, or 
groups of similar serial or series equipment, from the contractor’s accounting 
records.”); U.A. Anderson Constr. Co., ASBCA No. 53452, 02-1 BCA ¶ 31,715 
at 156,702 (noting that the “FAR thus makes mandatory the use of actual cost data 
from a contractor’s accounting records”); see also Metric Constr. Co. v. United States, 
81 Fed. Cl. 804, 828 (2008) (“[T]he DFARS and FAR Part 31 call for a hierarchy of 
means of deriving ownership and operating costs for construction equipment, starting 
with actual-cost data and progressing to ‘predetermined schedules’ as agreed in 
particular instances.”); C. Mourer Constr., Inc. v. United States, 23 Cl. Ct. 533, 540 
(1991) (“The court rejects defendant’s contention that the Corps may limit recovery to 
actual costs and to the predetermined schedules.  If a contractor possesses accounting 
records sufficient to document its actual costs, such records must form the basis for 
determining equipment costs.”).  Thus, Al Ghanim’s actual equipment costs are 
appropriate for use here. 
 
C. Al Ghanim Has Proved the Army Corps Caused Some, But Not Most of 
its Delay Costs  
 
Al Ghanim asserts that it should receive the costs of delay from the time 
Al Ghanim’s personnel arrived at the Visitor Control Center until Al Ghanim and 
government security escorts arrived at the project sites, subtracting 30 minutes of time 
for Al Ghanim’s processing through the Visitor Control Center (app. R11 br., ex. A.2 

26 
 
at 3-6, ex. A.3 at 98-101; app. R11 reply br. at 7).  Above we found the 30-minute time 
period to be reasonable (supp. R4, tab 40 – Yassin decl. ¶ 11; app. R11 br., Lakshmi 
aff. ¶¶ 9, 15; 62321 R4, tab 3 at 9-11; 62984 R4, tab 5 at 9-11).  The Army Corps 
challenges whether all the delays were caused by the government (gov’t R11 br. at 23-
28). 
 
“Delay causation is a question of fact.”  JV Makyal Ins. Ve Tic. A.S. & Mehmet 
Erdal Kamisli Co. Ltd., ASBCA No. 56956, 12-1 BCA ¶ 34,913 at 171,662; see also 
Bluebonnet Sav. Bank, FSB v. United States, 266 F.3d 1348, 1356 (Fed. Cir. 2001) 
(“Causation is also a question of fact[.]”).  “[T]he contractor has the burden of proving 
the extent of the delay, that the delay was proximately caused by government action, 
and that the delay harmed the contractor.”  Wilner v. United States, 24 F.3d 1397, 1401 
(Fed. Cir. 1994) (en banc).  “[A] contractor cannot recover ‘where the delays are 
‘concurrent or intertwined’ and the contractor has not met its burden of separating its 
delays from those chargeable to the Government.’”  Essex Electro Eng’rs, Inc. v. 
Danzig, 224 F.3d 1283, 1292 (Fed. Cir. 2000) (quoting Blinderman Constr. Co. v. 
United States, 695 F.2d 552, 559 (Fed. Cir. 1982)).  “Nevertheless, if ‘there is in the 
proof a clear apportionment of the delay and the expense attributable to each party,’ 
then the government will be liable for its delays.”  Id. (quoting Coath & Goss, Inc. v. 
United States, 101 Ct. Cl. 702, 714-15 (1944)). 
 
Al Ghanim relies on its daily quality control reports, which contemporaneously 
documented delays Al Ghanim encountered on these projects (app. R11 br., exs. A.4, 
A.5).  For the first several weeks of delays in January and February 2018, Al Ghanim’s 
quality control reports only documented the time when it arrived at the Visitor Control 
Center for processing and the time when Al Ghanim and the security escort arrived 
at the JLOC-A or JLOC-B building sites (app. R11 br., ex. A.4 at 174-205, ex. A.5 
at 1-28).  From February 5 through October 31, 2018, however, Al Ghanim also 
provided an interim time – when the security escort arrived at the Visitor Control 
Center, which was between when Al Ghanim arrived at the Visitor Control Center and 
Al Ghanim and the security escorts arrived at the project sites (app. R11 br., ex. A.4 
at 206-951; ex. A.5  
at 29-741). 
 
Al Ghanim seeks the costs for delay from when it arrived at the Visitor Control 
Center until it arrived at the project sites (app. R11 reply br. at 4).  The Army Corps 
asserts that Al Ghanim overstates the delay and should only recover for any delay from 
the security escorts late arrival to the Visitor Control Center, not the additional travel 
time from the Visitor Control Center until the contractor and agency escorts arrived 
at the building sites (gov’t R11 br. at 26-28; supp. R4, tab 39 – Witherington decl. 
¶ 25(f)(ii); supp. R4, tabs 39e-h (red highlighted days)).   
 

27 
 
Al Ghanim counters that it should not be liable for the travel time delay (app. 
R11 reply br. at 2-5).  Al Ghanim asserts that the agency’s June 2019 decisions and the 
subsequent unilateral contract modifications granting an extension of time based on 
excusable delays, proves the government’s liability for the contractor’s compensable 
delay claims, including the travel time to the sites (app. R11 reply br. at 3-8).  
However, an agency’s unilateral grant of a time extension based on an excusable delay 
does not create a presumption that the government caused any compensable delay.  
England v. Sherman R. Smoot Corp., 388 F.3d 844, 856-57 (Fed. Cir. 2004) 
(concluding that “mere grant by the government of a contract extension does not 
indicate that the government is at fault”); Amatea/Grimberg JV v. Sec’y of Navy, 
No. 2024-1006, 2025 WL 1752375 at *3 (Fed. Cir. June 25, 2025) (“We have clearly 
rejected a presumption that the government is at fault for delay when the contracting 
officer grants a time extension.”); see also Wright Bros., Bldg. Co., Eagle LLC, 
ASBCA No. 62285, 23-1 BCA ¶ 38,255 at 185,777 (“Notwithstanding appellant’s 
assertion to the contrary, an extension of time granted by the contracting officer does 
not equate to an administrative determination that the delay was not due to the fault or 
negligence of the appellant.”).  We must assess the evidence de novo on appeal as 
presented by the parties and may not presume the government caused the delay.  
Sherman, 388 F.3d at 856-57. 
 
We agree with the government that the travel time was a concurrent delay that 
Al Ghanim would have encountered even if the security escorts arrived on time to the 
Visitor Control Center.  Essex, 224 F.3d at 1292.  Al Ghanim has failed to show or 
explain how the government was the cause of this travel time delay, which it must do 
under the Suspension of Work clause.  FAR 52.242-14(b); Triax-Pac., 958 F.2d 
at 353-54.  Al Ghanim may not recover for the travel time from the Visitor Control 
Center to the work sites.  From January 20 through February 4, 2018, Al Ghanim’s 
quality control reports fail to specify when the security escorts arrived at the Visitor 
Control Center to pick up Al Ghanim’s personnel for travel to the worksite (app. R11 
br., ex. A.4 at 174-205, ex. A.5 at 1-28).  Because there is no indication how late the 
security escorts were for those days, Al Ghanim has failed to prove its delay costs for 
those days.   
 
Similarly, Al Ghanim faces another evidentiary issue regarding when security 
escorts were required to be on-site to trigger the start of a delay for certain days in 
March, April, and May 2018.  Typically, Al Ghanim identified the specific time when 
it would need security escorts on its security escort request forms (app. R11 br., ex. F).  
However, the record does not include security escort request forms for March 10-31, 
2018, April 1-2, 4-15, 23-30, 2018, May 1-3, 5-8, 12-15, 2018, for the JLOC-A crew; 
and March 12-31, 2018, April 1-2, 5-15, 23-30, 2018, May 1-3, 5-8, 12-15, 2018, for 
the JLOC-B crew (supp. R4, tab 39 – Witherington decl. ¶ 25(f)(v); tabs 39e, 39f 
(orange highlighted); app. R11 br., ex. F).  Al Ghanim asserts that the agency is now 
using the security escort request forms as a “weapon to avoid acknowledgment of the 

28 
 
delay” (app. R11 reply br. at 9).  Yet, Al Ghanim bears the burden of producing 
evidence supporting its damages.  Wilner, 24 F.3d at 1401.  Without the security escort 
request forms for these days, Al Ghanim has no evidence to prove when the parties 
agreed that escorts would be available for these days; Al Ghanim has offered no other 
evidence on this point.  Thus, Al Ghanim has failed to prove its delay costs for these 
days. 
 
The Army Corps also asserts that Al Ghanim’s delay costs should account for 
days when Al Ghanim’s personnel arrived at the Visitor Control Center later than the 
agreed-to time (gov’t R11 br. at 24-25; supp. R4 tab 39 – Witherington decl. 
¶ 12(k)(v); tabs 39e & 39f (gray highlighted days); app. R11 br., ex. F; ex. A.4 at 668, 
776-877, ex. A.5 at 135, 460, 568-669).  Al Ghanim concedes that it only seeks 
“delays from the time it arrived at the [Visitor Control Center]” (app. R11 reply br. 
at 10).7   
 
Finally, the Army Corps asserts that Al Ghanim should not recover for days 
when adverse weather conditions, including wet site conditions, impeded some work 
on the site or resulted in work stoppages at some point during the day (supp. R4, 
tab 39 – Witherington decl. ¶¶ 25(f)(iii)-(iv); supp. R4, tabs 39e-h (blue and yellow 
highlighted days)).  As Al Ghanim counters, just because it encountered work 
stoppages later in the day does not mean Al Ghanim did not encounter compensable 
delays at the beginning of the day – February 18, 2018 (app. R11 reply br. at 8-9; app. 
R11 br., ex. A.4 at 232, ex. A.5 at 37).  The government also asserts that wet site 
conditions prevented any work from completion on three days (February 27 – 
March 1, 2018), but the daily contractor and government reports only support that 
Al Ghanim was unable to do any “earthworks” due to the wet ground (app. R11 br., 
ex. A.4 at 250-55, ex. A.5 at 49-54; 62321 R4, tab 69 at 23-25; 62984 R4, tab 68 at 16-
17).  Had the government’s security escorts arrived on time to the Visitor Control 
Center, then Al Ghanim would have arrived earlier to the site and may have 
accomplished more work those days (despite the work stoppages and impediments to 
some work due to wet conditions).  Al Ghanim may recover for security escort delays 
on these days.  By our calculation,
8 Al Ghanim incurred $1,444.11 in additional 
recoverable delay costs for these days.   
 
7 Notably, from September 3, 2018, through October 8, 2018, Al Ghanim requested 
security escorts to arrive at “0430” but Al Ghanim did not arrive until “0500,” 
effectively mitigating delay costs for most of this period by arriving late (supp. 
R4, tabs 39e, 39f).   
8 On February 18, 2018, the security escorts arrived 10 minutes (.17 hours) late for 
both crews, which we multiply by the hourly rate ($285.91) for delay costs of 
$48.60 per crew and $97.20 for both crews (supp. R4, tabs 39e & 39f; app. R11 
br., ex. A.2 at 3, ex. A.3 at 98).  Consistent with Al Ghanim’s approach, we 
 

29 
 
Based on our conclusions above, we add the total calculated by the Army 
Corps’ cost analyst ($32,876) to the additional delay costs ($1,444.11) for a total 
recovery of $34,320.11. 
 
CONCLUSION 
 
For the foregoing reasons, Al Ghanim’s delay claims are sustained in the 
amount of $34,320.11, plus CDA interest from when the Army Corps received 
Al Ghanim’s certified claims.   
 
 Dated:  May 18, 2026 
 
 
 
 
 
 
 
 
(Signatures continued) 
 
derived the hourly rate by taking the daily cost for the specific day and crew 
(including manpower and equipment costs) and dividing it by eight hours (app. 
R11 br., exs. A.2-A.3).  On February 27, 2018, the security escorts arrived 
within 30 minutes of Al Ghanim’s crews arrival at the Visitor Control Center, 
so there is no compensable delay (supp. R4, tabs 39e, 39f).  On February 28, 
2018, the security escorts arrived one hour and 20 minutes late (1.33 hours) for 
each crew, which we multiply by the hourly rate for the JLOC-A crew 
($280.99) and hourly rate for the JLOC-B crew ($297.08) for delay costs of 
$373.72 for the JLOC-A crew and $395.12 for the JLOC-B crew and $768.84 
total for both crews (supp. R4, tabs 39e & 39f; app. R11 br., ex. A.2 at 3, ex. 
A.3 at 98).  On March 1, 2018, the security escorts arrived one-hour late (1.0 
hours) for each crew, which we multiply by the hourly rate for the JLOC-A 
crew ($280.99) and hourly rate for the JLOC-B crew ($297.08) for $578.07 
total for both crews (supp. R4, tabs 39e & 39f; app. R11 br., ex. A.2 at 3, ex. 
A.3 at 98). 
 
 
 
DANIEL S. HERZFELD 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

30 
 
I concur 
 
 
 
J. REID PROUTY 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 DAVID F. D’ALESSANDRIS 
Administrative Judge 
Acting 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. 62321, 62984, Appeals of 
Al Ghanim Combined Group W.L.L., rendered in conformance with the Board’s Charter. 
 
 Dated: May 18, 2026 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals