ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE STINSON ON THE 
GOVERNMENT’S CONVERTED MOTION FOR SUMMARY JUDGMENT 
 
By motion dated December 19, 2022, the government requested dismissal of 
this appeal filed by appellant Omran, Inc. (Omran), for failure to state a claim upon 
which relief can be granted (gov’t mot.).  With its motion, the government submitted a 
statement of relevant facts and provided numerous Rule 4 file citations in support of its 
contentions (id.).  Appellant’s opposition brief, filed January 18, 2023, likewise 
included proposed findings of fact with citations to the Rule 4 file (app. opp’n).  The 
government filed a reply brief on February 17, 2023, but did not respond directly to 
appellant’s proposed findings of fact (gov’t reply).  After reviewing the parties’ briefs, 
by Order dated March 17, 2023, the Board determined the government’s motion 
should be treated as a motion for summary judgment since both parties cited to 
numerous documents outside of the pleadings.  (Bd. Order dtd. March 17, 2023, (citing 
Thai Hai, ASBCA No. 53375, 02-2 BCA ¶ 31,971 at 157,920; see F
ED. R. CIV. P. 
12(d))).  The parties each submitted an additional brief, which included additional 
proposed findings of fact (app. reply; gov’t sur-reply).  For the reasons stated below, 
the Board denies the government’s motion to dismiss and grants the government’s 
motion for summary judgment.  
  
Appeal of - )  
 )  
Omran, Inc. ) ASBCA No. 63414 
 )  
Under Contract No. W5J9JE-19-C-0003 )  
   
APPEARANCE FOR THE APPELLANT: R. Dale Holmes, Esq. 
    Cohen Seglias Pallas Greenhall & Furman PC 
    Philadelphia, PA  
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Nancy L. Pell, Esq. 
Katherine M. Smith, Esq. 
    Engineer Trial Attorneys 
  U.S. Army Engineer District, Middle East 
  Winchester, VA 

2 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
 Request for Proposals and Contractual Provisions 
 
 1.  In August 2018, the U.S. Army Corps of Engineers (USACE or government) 
issued a Request for Proposals (RFP) for the design and construction of various 
Afghan National Army (ANA) Afghan Air Force (AAF) aviation enhancements for 
the airport located in Mazar-e-Sharif, Afghanistan (R4, tab 5 at 1, 31).  The RFP 
included design and construction of a Life Support Area expansion, a new mixed-use 
aircraft airfield, and other aviation enhancement facilities and utilities (id. at 101).   
 
 2.  The government awarded Omran Holding Group a firm-fixed price design 
build contract, Contract No. W5J9JE-19-C-0003 (the contract), on March 26, 2019 
(R4, tab 12 at 1-2, 9).  Pertinent to this appeal, the contract included airfield work 
(design and construction) of “a new rigid paved taxiway, identified as ‘Papa 
Taxiway,’” and an Armed Aircraft Apron (R4, tab 74 at 27, 38-40).  A novation dated 
September 7, 2021, transferred the contract to Omran, Inc. (compl. ¶¶ 2, 6).   
 
 3.  The contract stated that performance “may require work in dangerous or 
austere conditions,” and cautioned that “[e]xcept as otherwise provided in the contract, 
the Contractor accepts the risks associated with required contract performance in such 
operations” (R4, tab 12 at 27). 
 
 4.  The contract also stated “[g]enerally, the Contractor is responsible for 
demobilizing all of its personnel and equipment from the . . . [a]rea” and “[t]he 
Contractor shall be responsible for the security of their equipment” (id. at 33, 38).  
 
 5.  The notice to proceed was issued on May 1, 2019 (R4, tab 13 at 1).  
Modification No. A00011 extended the performance completion date to December 22, 
2021 (R4, tab 26 at 2).  Modification No. P00005 increase the total contract amount to 
$31,644,678.27 (R4, tab 31 at 3). 
 
 Facts Pertaining to Concrete Paving Equipment and Machinery 
 
 6.  In December 2019, appellant completed the concrete placement for the Papa 
Taxiway shoulders, and in June 2020, completed the Armed Aircraft Apron shoulders 
(Sworn Statement of Gerard A. Castelli
1, ¶ 2).  This work was accepted for use and 
turned over to the government on November 19, 2020, although several punch list 
items remained that required correcting (R4, tab 77 at 1-2).  
 
1 The sworn statements and declarations submitted by both appellant and the 
government with the reply and sur-reply, respectively, will be cited 
independently to keep citations concise.  

3 
 
 7.  Problems regarding the taxiway shoulder pavement slabs (heaving and 
cracking) were identified in the fall of 2020, although the parties debate in their 
respective submissions which party first identified the issue (see Sworn Statement of 
Gerard A. Castelli ¶ 3; contra gov’t sur-reply ¶ 2).  In October 2020, Omran submitted 
a corrective action plan (CAP) addressing this issue (Sworn Statement of Gerard A. 
Castelli ¶ 3).  The CAP provided a range of options from full replacement of the 
shoulder pavement and subgrade to individual slab replacement or repairs (R4, tab 75 
at 59-67; Sworn Statement of Gerard A. Castelli ¶ 3) 
 
 8.  After receiving technical reviews and comments from the government, 
appellant submitted revised CAPs on October 27, 2020, and May 22, 2021 (R4, 
tabs 75 at 2-9, 59-67; 76 at 6-14; 79 at 2-6; Sworn Statement of Gerard A. Castelli ¶¶ 
4-5). 
 
 9.  According to Omran, at the time of evacuation of the site, appellant’s paving 
equipment remained on the base for the potential reconstruction of the Papa Taxiway 
and 40 percent of the Armed Aircraft Apron shoulders (Sworn Statement of Gerard A. 
Castelli ¶ 12).  Omran maintains that it would have taken approximately 14 days 
to disassemble the concrete batch plant and remove it from the site, and that other 
associated concrete equipment supplies and vehicles could have been removed in less 
than five days (id. ¶ 13).  Omran also maintains that it did not remove the equipment 
because it was waiting for direction from the government to take no further action on 
the shoulder pavement (Sworn Statement of Gerard A. Castelli ¶ 15).  The government 
states that, as set forth in appellant’s proposed finding of fact ¶ 8.c., Omran was 
informed verbally on August 8, 2021, that no further work would be performed on the 
Papa Taxiway shoulder pavement (app. reply at 2; Decl. of John Clark ¶ 10).  
 
 Facts Pertaining to Power Tie-In 
 
 10.  The contract required appellant to connect to the base power system from 
an area where power was supplied to the base from a commercial source (R4, tab 74 
at 34).  During performance, the parties discovered that the power hookup location 
did not have capacity sufficient to provide electrical power to the project site (Decl. of 
Javaughn Perkins ¶¶ 8-9; Sworn Statement of Gerard A. Castelli ¶¶ 19-20). 
 
 11.  The parties met with the owner of the off-base power grid to discuss a 
solution to the power capacity issue.  In the meantime, appellant, at the request of the 
government, offered alternative solutions, including the use of generators.  (R4, tab 85 
at 6)  While the government states that the use of generators was for multiple projects, 
appellant states that the generators were brought on site for the sole purpose of the 
electrical tie-in issue (Sworn Statement of Gerard A. Castelli ¶¶ 23, 29; Decl. of 
Javaughn Perkins ¶ 14).  Regardless, it is undisputed that generators were onsite when 

4 
 
the evacuation occurred (Sworn Statement of Gerard A. Castelli ¶ 28; gov’t mot. at 3 
(¶ 13)). 
 
 12.  As of August 8, 2021, there was no long-term resolution to the electrical 
tie-in issue, and the use of generators continued (Sworn Statement of Gerard A. 
Castelli ¶¶ 22, 25-26). 
 
 Fall of Kabul to the Taliban, Evacuation of Airfield  
 
 13.  On August 14, 2021, the ANA directed appellant to evacuate the project 
site in response to the Taliban takeover (R4, tabs 3 at 6-7; 4 at 4).  At the time of 
evacuation, appellant states it was unable to remove the paving equipment from the 
work site (Sworn Statement of Gerard A. Castelli ¶ 11).  On August 16, 2021, the 
Department of the Army, Expeditionary District, USACE, issued a suspension of work 
order (R4, tab 36).   
 
 14.  On August 18, 2021, four days after evacuation, the government sent 
appellant Serial Letter C-0039, which indicated it “received correspondence from the 
Defense Security Cooperation Management Office – Afghanistan . . . on August 6, 
2021, directing USACE to perform no further action in relation to correcting the 
ongoing tilting of the shoulder panels” (R4, tab 80 at 1).  
 
 15.  Omran alleges in its complaint that “[f]or more than a month before the 
Taliban takeover, in weekly meetings, Omran repeatedly informed [the Government] 
that areas of Afghanistan and border crossings were being controlled by Taliban 
forces” and “[m]aterials and supplies were being stopped at the borders thereby 
affecting the delivery to the job site” (compl. ¶ 22).  
 
 16.  Omran alleges in its complaint that “[d]uring the first two weeks of 
August 2021, [the Government] could have and should have seen the Taliban take over 
key provincial capitals and key military installations” (compl. ¶ 23). 
 
 Omran’s Claim and Contracting Officer’s Final Decision 
 
 17.  On May 7, 2022, appellant submitted a certified claim for two issues:  (1) 
additional work related to the existing subgrades under the airfield pavements; and (2) 
equipment that was on the site and was lost or unrecoverable due to alleged untimely 
and improper decision making by the government which forced appellant to 
unnecessarily maintain its equipment on-site (R4, tab 3 at 2-7).  Omran’s initial claim 
for the cost of lost equipment and materials was $2,091,610.25 (R4, tab 3 at 7).  After 
submission of its certified claim, Omran reduced its claim amount to $1,488,491.50 
(compl. ¶ 15). 

5 
 
 18.  The contracting officer issued a final decision dated July 11, 2022, denying 
in full the second issue presented in appellant’s claim, “Unrecoverable Equipment and 
other Materials Stranded at Project Site” (R4, tab 4 at 1).  The final decision stated that 
the first issue presented in appellant’s claim “will be addressed by separate 
correspondence” (id.). 
 
 19.  On September 21, 2022, appellant timely appealed to the Board the 
government’s July 11, 2022, denial of its claim.  The appeal here concerns only the 
second issue asserted in appellant’s claim. 
 
DECISION 
I.  Standard of Review 
 
 “Summary judgment is appropriate if there is no genuine issue as to any 
material fact and the moving party is entitled to judgment as a matter of law.”  First 
Com. Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir. 2003); F
ED. R. CIV. P. 
56(a).  “The moving party bears the burden of establishing the absence of any genuine 
issue of material fact and all significant doubt over factual issues must be resolved in 
the opposing party’s favor.”  Bubble Room, Inc. v. United States, 159 F.3d 553, 561 
(Fed. Cir. 1998).  A party challenging a motion for summary judgment “must set forth 
specific facts showing that there is a genuine issue for trial.”  Anderson v. Liberty 
Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. 
Co., 391 U.S. 253, 288 (1968)).  “A genuine issue of material fact arises when the 
nonmovant presents sufficient evidence upon which a reasonable fact finder, drawing 
the requisite inferences and applying the applicable evidentiary standard, could decide 
the issue in favor of the nonmovant.”  C. Sanchez & Son, Inc. v. United States, 6 F.3d 
1539, 1541 (Fed. Cir. 1993).   
 
 When considering motions for summary judgment, the evidence produced by 
the non-moving party is to be believed and all justifiable inferences are drawn in 
its favor.  Europe Asia Constr. Logistic, ASBCA No. 61553, 19-1 BCA ¶ 37,267 
at 181,351 (citation omitted).  However, the non-movant must set forth specific facts 
demonstrating the existence of a genuine issue of material fact; mere conclusory 
statements and bare assertions are inadequate.  Mingus Constructors, Inc. v. United 
States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987); Liberty Lobby, 477 U.S. at 252 (“The 
mere existence of a scintilla of evidence in support of the [non-movant]'s position will 
be insufficient . . . .”).   
 
II.  Contentions of the Parties 
 
 Appellant’s complaint alleges that the government failed “to make a timely 
decision or take contractual action concerning the taxiway pavement and the electrical 
tie-ins which would have enabled Omran to demobilize the associated equipment and 

6 
 
material” (compl. ¶ 27) and that the government’s “improper and untimely decision 
making on the taxiway shoulder and electrical tie-in issues is the direct and proximate 
cause of Omran’s loss of its equipment and material” (compl. ¶ 21).  In its initial 
motion to dismiss (submitted in response to Omran’s complaint in lieu of an answer), 
the government argued that appellant failed to state a claim upon which relief could be 
granted because the acts of a third party resulted in the damages alleged by appellant 
(gov’t mot. at 1).  Specifically, the government argued it is not liable for acts of a third 
party, absent fault, negligence, or unmistakable agreement, especially when the 
intervening acts break the causal link between the government’s alleged misconduct 
and the damages incurred (gov’t mot. at 7, 12).
2   
 
 Appellant’s opposition to the government’s motion argued that appellant had 
stated a claim upon which relief could be granted, setting forth allegations of fault and 
negligence by the government (app. opp’n at 5-9).  In its reply brief, the government 
reiterated its argument that it was not liable for appellant’s damages because of 
intervening acts of the Taliban (gov’t reply at 10).  The government also argued that 
“based on the allegations set forth in Omran’s Complaint, and other integral 
documents including Omran’s certified claim, the loss of Omran’s equipment and 
materials due to these third-party actions was not foreseeable at the time of contract 
formation,” and, accordingly, “damages cannot be assessed against the Government 
for the loss of Omran’s equipment and materials” (id. at 8-9).  In its reply brief, 
although appellant set forth additional support (including a sworn statement by one of 
its employees) for its position that the government’s negligence and fault led to the 
damages (app. reply at 8-9; Sworn Statement of Gerard A. Castelli)), it failed to 
address the government’s assertion that Omran’s breach damages were not foreseeable 
at the time of contract award. 
 
III.  The Government’s Administration of the Contract  
 
 Appellant’s briefs focus on whether the government properly administered the 
contract and assert that appellant has presented a genuine issue of material fact which 
precludes summary judgment.  Appellant alleges fault or negligence by the 
government in its administration of this contract (app. opp’n at 7; app. reply at 8-9).  
The government responds, stating that Omran:  (1) failed “to point to a single 
requirement or provision within the Contract related to the timeliness of deciding 
project issues” (gov’t reply at 6), (2) failed “to point to a single contractual provision 
or requirement that the Government breached” (id. at 2), and (3) admitted in 
 
2 The government argued in its motion to dismiss that the Taliban invasion and the 
ANA’s directive to evacuate the project site were intervening, superseding 
events that were the direct and proximate causes of Omran’s abandonment of 
equipment and materials (gov’t mot. at 12; see also gov’t reply at 10). 

7 
 
its opposition brief that it “raises no specific contract provisions related to its claim” 
(id. at 2) (emphasis by government) (quoting app. opp’n at 7).3 
 
 It is well established that “the U.S. Government is not responsible for the 
sovereign acts of a foreign nation.”  Zafer Taahhut Insaat ve Ticaret A.S. v. United 
States, 883 F.3d 1356, 1364 (Fed. Cir. 2016).  Regarding contractor losses related to 
the action of third parties, “absent fault or negligence or an unqualified warranty on 
the part of its representatives, the Government is not liable for damages resulting from 
the action of third parties.”  Oman-Fischbach Int’l (JV) v. Pirie, 276 F.3d 1380, 1385 
(Fed. Cir. 2002) (quoting Dale Constr. Co. v. United States, 168 Ct. Cl. 692, 698 
(1964)).  However, when fault or negligence is alleged, appellant can defeat summary 
judgment by placing at issue at least one fact relevant to the inquiry of whether the 
government’s actions amounted to fault or negligence.  See Joseph Becks & Assocs., 
Inc., ASBCA No. 31126, 86-3 BCA ¶ 19,299 at 97,583. 
 
 Here appellant alleges that the government’s fault or negligence was the reason 
for the alleged losses, not just the invasion of the Taliban (SOF ¶¶ 8-12).  Specifically, 
appellant raises two issues.  First, Omran argues that the government did not provide 
appellant with direction on the repairs necessary under the CAP.  In support, Omran 
provides sworn testimony supporting its position that the repairs could have been made 
much earlier (especially given the completion dates of December 2019 and June 2020) 
and the equipment and personnel demobilized if the government had provided the 
direction requested (see Sworn Statement of Gerard A. Castelli ¶¶ 2-17).  Second, 
Omran argues that the generators lost on site were the result of government fault due 
to its inability to provide the power source agreed to in the contract (SOF ¶¶ 10-12, see 
Sworn Statement of Gerard Castelli ¶¶ 18-29).
4  We are required to consider the 
 
3 In its reply brief and sur-reply brief, the government argued that the Board lacks 
jurisdiction to consider appellant’s claim because it sounds in tort (gov’t reply 
at 1, gov’t sur-reply at 9).  We disagree.  Here, the factual predicate of 
Omran’s claim (faulty or negligent contract administration by the government) 
arises not in tort, but out of an alleged breach in the administration of the 
contract by the government.  Call Henry, Inc. v. United States, 855 F.3d 1348, 
1354 (Fed. Cir. 2017) (“A breach of contract claim requires two components:  
(1) an obligation or duty arising out of the contract and (2) factual allegations 
sufficient to support the conclusion that there has been a breach of the identified 
contractual duty”) (citation omitted).   
4 The government’s initial motion sought dismissal based upon appellant’s alleged 
failure to state a claim upon which relief can be granted (gov’t mot. at 1).  
According to the government, dismissal was appropriate “because 
Omran’s claim for monetary damages is a result of the acts of third parties (the 
Taliban and the ANA), which cannot be attributed to the Government and for 
which the Government is not liable” (gov’t mot. at 12).  At this stage of the 

8 
 
evidence presented by the non-movant and draw all justifiable inferences in its favor.  
Although appellant has pointed to portions of the record which gave credence to its 
allegations that the government did not properly administered the contract, as well as 
provided sworn statements supporting its contentions, unfortunately for appellant, our 
analysis of the government’s summary judgment motion does not end here. 
 
IV.  Omran is Not Entitled to Relief Because the Breach Damages it Seeks 
Were Not Foreseeable at the Time of Contract Award 
 
 The government’s reply brief and sur-reply brief point to an  additional element 
of appellant’s claim which appellant must establish—that the damages Omran 
sustained (the Taliban seizing appellant’s equipment, machinery, and power 
generators)—were foreseeable at the time of contract award in the event the 
government “breached” the contract by failing to timely respond to certain contractor 
requests for information (gov’t reply at 8; see also gov’t sur-reply at 12).
5  To prevail 
upon its claim, Omran must establish not only that the government owed it a 
contractual duty, and that the government breached that duty, thus harming Omran, but 
appellant also must establish that the claimed damages were reasonably foreseeable 
at the time of contract award.  Sci. and Mgmt. Res., Inc., ASBCA No. 60412, 19-1 
BCA ¶ 37,236 at 181,243 (citation omitted). 
 
 The first problem for appellant is that the loss of its equipment and materials to 
the Taliban was a risk that it accepted upon contract award.  As described above, the 
contract stated that the work would be performed in “dangerous or austere conditions” 
and that Omran “accepts the risks” of performing in such an environment (SOF ¶ 3).  
Moreover, Omran accepted the risk of securing its equipment in this environment 
(SOF ¶ 4). 
 
litigation, based upon our discussion above, we find that appellant has 
sufficiently stated “a claim to relief that is plausible on its face.”  Ashcroft v. 
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 
U.S. 544, 570 (2007)). 
5 The government’s initial motion to dismiss did not expressly discuss the issue of 
foreseeability of damages based upon the government’s alleged breach.  
However, the government did argue in the context of “intervening force,” that 
“the Taliban takeover and resulting directive from the ANA were harms very 
‘different in kind from that which would otherwise have resulted’ . . . from the 
Government’s allegedly ‘improper and untimely decision making on the 
taxiway shoulder and electrical tie-in issues’” (gov’t mot. at 13).  The 
government expressly raised the issue of foreseeability in its reply brief, which 
was filed prior to our Order informing the parties that the government’s motion 
would be treated as one for summary judgment and granting the parties the 
opportunity to submit additional briefing. 

9 
 
 Furthermore, as stated by the government, “Omran cannot plausibly argue that 
the Government could have foreseen—at the time of contract formation in March of 
2019—that its decision making with respect to the project’s taxiway shoulder 
pavement and electrical system tie-in issues would have resulted in the abandonment 
of Omran’s materials and equipment as a result of the ANA’s directive and the Taliban 
takeover more than two years later on August 14, 2021” (gov’t reply at 10).  As 
support for its argument, the government cites the Restatement (Second) of Contracts 
§ 351 for the proposition that “[d]amages are not recoverable for loss that the party in 
breach did not have reason to foresee as a probable result of the breach when the 
contract was made” (gov’t reply at 9) (emphasis by government).  The government 
likewise cites Hughes Commc’ns Galaxy, Inc. v. United States, 271 F.3d 1060, 1066 
(Fed. Cir. 2001), in which the Court of Appeals for the Federal Circuit stated that “the 
damages must have been foreseeable at the time the parties entered the contract, which 
requires that they ‘be the natural and proximate result of the breach.’” (Quoting Locke 
v. United States, 151 Ct. Cl. 262, 270, 283 F.2d 521, 526 (1960)); see also Olin Jones 
Sand Co. v. United States, 225 Ct. Cl. 741, 742-43 (1980) (“‘The true concept of 
consequential damages involves consideration of the type of loss foreseeable by the 
contracting parties at the time of their agreement’ . . . while damages resulting from 
the ‘natural and probable consequences of the breach complained of [are recoverable,] 
damages remotely or consequently resulting from the breach are not allowed.’”) 
(citation omitted). 
 
 According to the government, appellant, in its reply brief, “does not dispute that 
the abandonment of its materials and equipment (in response to the Taliban takeover 
and the ANA’s directive to evacuate the project site) was an unforeseeable event at the 
time of contract formation” (gov’t sur-reply at 12).  The government states: 
 
The Contract at issue in this appeal was awarded on 26 
March 2019.  Gov’t R4, Tab 12 at 1.  According to Omran, 
“the Taliban took control of Afghanistan” more than two 
years later “in late summer of 2021.”  Compl. ¶ 14.  Omran 
does not—and cannot—argue that its alleged damages 
(unrecoverable equipment and materials following the 
Taliban takeover in August 2021) were foreseeable at the 
time of contract formation in March 2019.  
 
(Gov’t sur-reply at 12) 
 
 Indeed, a review of the briefs submitted by appellant, as well as appellant’s 
complaint, reveals that appellant has not alleged that the damages it sustained were 
foreseeable based upon the government’s alleged breach.  Although we recognize that 
foreseeability presents a question of fact, Prudential Ins. Co. of America v. United 
States, 801 F.2d 1295, 1301 (Fed. Cir. 1986), cert. denied, 479 U.S. 1086 (1987), here 

10 
 
appellant failed to even address this issue, which is a requisite factual predicate of 
its breach claim.  Appellant’s failure to even allege, let alone present evidence, that it 
was foreseeable at time of contract award that the government’s alleged breach would 
result in the Taliban seizing appellant’s equipment, machinery, and power generators 
in August 2021, is fatal to Omran’s appeal.  Grumman Aerospace Corp., ASBCA 
No. 46834, 05-2 BCA ¶ 33,084 at 164,001-02 (government breach of contract claim 
denied where government failed to show that “damages were foreseeable at the time of 
contract award”); PAE Int’l, ASBCA No. 45314, 98-1 BCA ¶ 29,347 at 145,923 
(discussing issue of foreseeability and holding that “the Government has not proved 
that the theft of the fuel oil was the natural and probable consequence of the breach”).  
Omran alleges in its complaint that a month or so prior to the Taliban’s actions at the 
airfield, the government should have anticipated the Taliban would “take over key 
provincial capitals and key military installations” (SOF ¶¶ 15-16).  Omran does not, 
however, allege the government should have foreseen this at the time of contract 
award in March 2019. 
 
 Accordingly, summary judgment in favor of the government on the issue of 
foreseeability, an essential element of its motion, is appropriate here.  Celotex Corp. v. 
Catrett, 477 U.S. 317, 323 (1986) (“The moving party is ‘entitled to a judgment as a 
matter of law’ because the nonmoving party has failed to make a sufficient showing on 
an essential element of her case with respect to which she has the burden of proof”); 
GSC Constr., Inc., ASBCA No. 61380, 20-1 BCA ¶ 37,626 at 182,666 (“The 
nonmoving party’s failure to show an element essential to its case on which it has the 
burden of proof renders all other facts immaterial and entitles the moving party to 
summary judgment”) (citing Celotex, 477 U.S. at 322-23). 
 
CONCLUSION 
 
 The government’s motion to dismiss for failure to state a claim upon which 
relief can be granted is denied.  The government’s motion for summary judgment 
is granted.  The appeal is denied. 
 
 Dated:  April 22, 2024 
 
 
 
 
 
 
 
 
(Signatures continued) 
 
 
 
DAVID B. STINSON 
Administrative Judge 
Armed Services Board 
of Contract Appeals 

11 
 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 MICHAEL N. O’CONNELL 
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. 63414,
 Appeal of Omran, 
Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  April 22, 2024 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals