ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE D’ALESSANDRIS 
 
 Appellant, Afghan Azimi Group of Supply Construction and Technical, Inc. 
(ASCT), was a subcontractor to Advance Constructors International, LLC (ACI) on 
ACI’s prime contract with respondent, the U.S. Army Corps of Engineers (USACE or 
government), for construction of the Kandahar Regional Police Training Center, in 
Kandahar Province, Afghanistan.  In February 2013, the USACE terminated ACI for 
default, due in part to its failure to pay ASCT and other subcontractors.  When the 
USACE terminated ACI for default, it planned to retain another contractor to complete 
the project, and anticipated giving preference to a contactor that would employ ACI’s 
subcontractors.  Accordingly, the USACE held an informational meeting with ACI’s 
subcontractors and subsequently sent an email “requesting” that subcontractors not 
remove from the job site their material that had not been paid for by ACI.  The email 
stated that the government has “procedures that it can use to pay” for the material.  ACI 
indicated its desire to sell its materials to the government, and followed-up with the 
USACE multiple times.  In November 2013, the project was cancelled and the site was 
returned to the Government of Afghanistan.  
 
 ACI challenged the USACE’s termination decision before the Board.  In 2015, 
the parties worked-out an unusual settlement where the USACE converted the 
termination for default into a no-cost termination for convenience, and used the unpaid 
contract balance to fund an escrow account to reimburse ACI’s subcontractors for a 
portion of their unpaid invoices.  In 2016, ASCT sued ACI in Delaware State Court 
Appeal of - )  
 )  
ASCT Group, Inc. ) ASBCA No. 61955 
 )  
Under Contract No. 000000-00-0-0000 )  
   
APPEARANCE FOR THE APPELLANT: David J. Muchow, Esq. 
    Muchow Law 
    Arlington, VA 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 James D. Stephens, Esq. 
Rebecca L. Bockmann, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Middle East 
    Winchester, VA 

2 
 
seeking $2.8 million.  ASCT obtained a judgment against ACI but ultimately settled the 
dispute for a $430,000 payment from ACI, that was reimbursed by the escrow account.  
ASCT’s settlement with ACI contains a carveout purporting to exempt from the release 
ASCT’s claims against the USACE. 
 
 In 2018, ASCT filed a claim with the USACE asserting entitlement of 
$1,898,835.40 for its material, security and warehousing expenses, construction 
equipment, and attorney fees.  ASCT asserted that the contracting officer’s oral 
statements in the meeting, and the email requesting that subcontractors not remove their 
material, were an offer by the government to purchase ASCT’s material and equipment, 
and that ASCT accepted the offer by performance, creating an implied-in-fact contract.  
The contracting officer awarded ASCT $78,936 based on a finding that an implied-in-fact 
contract “might be interpreted to exist,” but that the scope of the implied-in-fact contract 
was only for storage of material from the February 2013 email until November 2013 
when the project was cancelled.  We review the appeal de novo and hold that ASCT has 
not demonstrated the existence of an implied-in-fact contract, and deny the appeal. 
 
FINDINGS OF FACT 
 
A. The Contract and Subcontract 
 
 On March 31, 2011, the government entered into Contract No. W5J9LE-11-C-0020 
with ACI, for the construction of a regional police training facility in Kandahar Province, 
Afghanistan (R4, tab 30 at 2).  Notably, the contract waived the bonding requirements 
normally contained in government construction projects (tr. 207-08).
1  The waiver was in 
response to contractors experiencing difficulty in obtaining bonding for contracts being 
performed in a war zone (id. at 208).  The policy permitting waiver of the bonding 
requirements has since been revoked (id.).  However, absent a payment bond, there was 
not a surety to step-in and pay the subcontractors in the event, as was the case here, that 
the prime contractor failed to pay its subcontractors. 
 
 On or about January 8, 2012, ACI entered into a subcontract agreement with 
ASCT, a small family-owned business (R4, tab 4, tr. 19).  Pursuant to the subcontract, 
ASCT would be paid $5,322,065 for construction of the project’s dining facility 
(DFAC), the DFAC’s dry storage, four classroom facilities, and a latrine facility (R4, 
tab 4 at 1-2).  ACI was to pay ASCT according to an approved schedule of values (id.; 
tr. 91-92), with ASCT required to submit a schedule of values with its requests for 
payment (R4, tab 4 at 6).  ACI paid ASCT $2,607,848 prior to the project’s termination, 
leaving a remaining balance of $2,714,217 on the subcontract (R4, tab 44 at 1).  ASCT 
                                              
1 See Assist Consultants, Inc., ASBCA Nos. 61525, 62090, 21-1 BCA ¶ 37,850 for an 
example of an Afghan contractor being unable to meet the bonding 
requirements.   

3 
 
purchased all the materials and equipment at issue in this litigation as a part of its 
performance under the subcontract (tr. 117). 
 
B. USACE’s Termination of ACI for Default 
 
 In late 2012, ACI’s subcontractors notified the government that ACI was not 
paying them (R4, tab 30 at 2; tr. 154-55).  ASCT alleges that ACI stopped paying it in 
October of 2012 (tr. 38, 92, 154-55).  ASCT stopped performing on the project on 
December 17, 2012 (tr. 38-39, 172-73).  In the weeks that followed, the USACE 
investigated the allegations of ACI’s subcontractors, and took action after concluding 
that ACI was not paying its subcontractors (tr. 155-58).  The government began to 
withhold retainage from ACI on the contract both due to ACI’s failure to make progress 
on the project, and because it believed ACI had made misrepresentations on its progress 
payment certifications relating to subcontractor payments (id.; R4, tab 30 at 1, 3,  
6-7; and FAR 52.232-27, Prompt Payment for Construction Contracts (JAN 2017)).  
In particular, the government rejected ACI Pay Request No. 22 outright “due to 
concerns regarding payment to subcontractors” (R4, tab 30 at 7; tr. 155-57).  In total, 
the government withheld $2,506,615.09 from ACI’s progress payments over this issue 
(R4, tab 31 at 1).  The government decided to terminate ACI for default in part due to 
its failure to pay its subcontractors on the contract (R4, tab 30 at 8-10; tr. 158-64). 
 
 On February 14, 2013, the government held an informational meeting for ACI’s 
subcontractors at a government construction office (tr. 188, 191-94).  The government 
notified the project’s subcontractors of its intention to terminate ACI, informed the 
subcontractors of the next steps in the reprocurement process, and inquired whether 
the subcontractors were interested in working for the replacement contractor, or in 
selling their materials (tr. 90-91, 185-89).  Additionally, the government instructed 
ASCT not to deliver any more materials to the project site (tr. 91).   
 
 ASCT’s Vice President, Mr. Abdul Azimi, testified that, at the February 14, 
2013 meeting, Mr. Boddie, the contracting officer, “promised that [the USACE] had 
procedures that they will [use to] pay for the materials directly” (tr. 48).  ASCT 
additionally submitted affidavits from three other individuals who attended the 
February 14, 2013 meeting, each with similar wording, and each dated February 25, 
2021, more than eight years after the meeting.  Mr. R. Mohammad, the CEO of Bilal 
Adil Construction Co., another subcontractor to ACI on the project, stated that 
Mr. Boddie “clearly promised the subcontractors attending, that there was a process 
from USACE for recovery of funds expended by the subcontractors to date for 
materials and equipment that were purchased for the subject contract; and for 
continuing to provide security, and that we would be paid for all the project related 
expenses incurred” (R4, tab 50 at 1-2).  Mr. Ismat Ullah Samadee, the former President 
of Sadiq Noor Construction Company, another subcontractor to ACI on the project, 
states that Mr. Boddie “promised, in no uncertain terms, that there was a process for 

4 
 
recovery of funds expended by the subcontractors to date for materials and equipment; 
and for continuing to provide security, and that we would be paid for all of that” (R4, 
tab 51 at 1-2).  Mr. Mohammad Azimi, a partner in ASCT and the project manager, 
stated that Mr. Boddie “clearly promised that there was a process for recovery directly 
from USACE for the costs incurred by the subcontractors for materials and equipment 
procured for the subject contract; and for continuing to provide security” (R4, tab 52 
at 1-2). 
 
 Conversely, Mr. Boddie testified that, at the meeting, he stated “that there was a 
process where the Government could buy the material . . . [a]nd use it, especially the 
long lead items and such that were onsite . . . [and] hand that over to a new contractor as 
Government furnished material” (tr. 188-89).  Mr. Boddie further explained that his 
statements at the meeting were an “explanation of potential of what we could do” 
(tr. 195). 
 
 There is no transcription or recording of the meeting in the record.  Mr. Azimi 
testified that he and the other subcontractors were not permitted to bring any 
electronics through security, but that they were informed that the meeting was being 
recorded (tr. 45-47).  Mr. Boddie testified that electronics would have been collected 
as a security measure and that he was aware that there was supposed to be a recording 
of the meeting, but that it was not done at his request (tr. 227-28).   
 
 On February 17, 2013, ASCT sent copies of its unpaid invoices to the government 
by email2 (R4, tab 19 at 1).  On February 19, 2013, the government terminated ACI for 
default (R4, tab 30 at 1).  In its termination decision, the government instructed ACI to 
“[s]top all work, make no further shipments, and place no further orders,” except for 
authorized work-in-progress or materials it wanted for itself (id. at 10-11).  ACI appealed 
the government’s termination for default decision to the ASBCA in No. 58604 (R4, 
tab 31 at 1; tr. 166).  At the time of the termination, ASCT claimed ACI owed it 
$1,246,570.09 for its October, November, and December 2012 invoices (R4, tab 26 at 1; 
tr. 92). 
 
C. Post-Termination Communication with ACI’s Subcontractors 
 
 On February 25, 2013, the government sent an email to ACI’s subcontractors, 
including ASCT, that summarized the information provided at the February 14, 2013 
meeting (R4, tab 8; tr. 194-96).  The email stated in relevant part:  
 
USACE has now begun the process of selecting a new 
prime contractor to complete the RPTC 
                                              
2 Although the invoices are not included with the email at R4, tab 19, the invoices are 
in the record at R4, tab 45 (tr. 221) 

5 
 
project.  . . .   When USACE selects the new prime 
contractor, it will give preference to potential prime 
contractors that promise to award subcontracts to the 
companies that formerly had subcontracts under ACI.  . . .   
 
In the meantime, USACE wants to be sure that activity 
continues at the construction site during the time it takes to 
choose the new prime contractor.  USACE has decided to 
work with one of ACI’s former subcontractors, Areyana 
Group, to have it be the prime contractor for a limited 
amount of work over the next 3 months.  . . .   The details of 
that short-term contract will be announced to this group as 
soon as it is finalized. . . . 
 
Regarding your own company’s materials that are on site but 
were never paid for by ACI, we request that you do not 
remove them.  As I explained in our meeting on 14 February, 
USACE has procedures that it can use to pay you for those 
materials so that they can be used to finish building the 
project.  Please contact me if you are interested in selling 
those materials to USACE. 
 
(R4, tab 8 at 1-2).  Mr. Azimi testified that the email was consistent with the oral 
statements at the February 14, 2013 meeting (tr. 49-50, 95-96) and Mr. Boddie 
similarly confirmed that the email was consistent with his statements at the meeting 
(tr. 195-96).   
 
 Based on the record before us, we find that Mr. Boddie’s statements at the 
February 14, 2013 meeting are consistent with the February 25, 2013 email summary 
of the meeting, and find that Mr. Boddie’s statements, did not constitute an offer to 
purchase ASCT’s material or equipment, or to compensate ASCT for its storage 
expenses.  ASCT’s witness testimony at the hearing, and declarations, are not 
consistent with the contemporaneous email summary.  
 
 On March 14, 2013, ASCT responded to the contracting officer, stating “as we 
owe most of the suppliers now for the procured materials, it would be of our mutual 
benefit to sell you our procured materials for your future plans.  And it would be our 
pleasure to know how long will it take for the process, and what you would require us 
to send you” (R4, tab 9 at 3).  The government responded that same day indicating that 
its Local National Quality Assurance (LNQA) representatives would inventory the 
property (R4, tab 9 at 3).  On March 20, 2013, after an exchange of emails concerning 
the nature of the materials and questions from ASCT about how long the process would 
take, a government representative informed Mr. Abdul Mateen Azimi, ASCT’s  

6 
 
Vice-President, that he did not “know how long the process will take,” that it was “for 
the contracting officer to take action on,” and that the government would “eventually 
(I think) process the stored materials for payment but the Contracting Officer is running 
the show.” (id. at 2).  On March 25, 2013, ASCT sent an email to the government 
contracting officer, Mr. Edward Boddie, stating: 
 
As was requested from your side by email, and agreed in 
the meeting, it was stated that the procured material for this 
project that are not billed to ACI will be paid by USACE. 
 
The lists were sent to your attention for the material we 
had procured for our project, that are not billed to ACI. 
 
But neither a positive nor negative response have been 
clarified from your side for the procurements payment and 
processing. 
 
So please let us know, if these materials will be procured 
by USACE and paid to us or not? 
 
(id at 1).  There is no record of the government contracting officer ever replying to this 
email.  ASCT’s own witness testified that ASCT understood there were additional 
steps in the process toward reaching an agreement relating to the material (tr. 106-11). 
 
 On June 19, 2013, the District Engineer of the Afghanistan Engineer District- South, 
COL Vincent V. Quarles, furnished a copy of a letter to ASCT, in which he explained to 
another ACI subcontractor that, although he understood the passage of time relating to the 
progress of reprocuring the project was financially problematic, “the needs of the end-user 
of the facility have been changing as the conditions on the ground change” (R4, tab 10 
at 2).  On June 26, 2013, the government contracting officer provided a presentation to the 
former ACI subcontractors, in which he stated: 
 
A. The needs of the Afghan National Police have changed.  
As a result, the ANP now needs fewer buildings of each 
type.  
 
B. Because of these changes, USACE will be re-starting 
the selection of a new prime contractor for the RPTC 
project.  
 
*** 
  

7 
 
2.  The old RFP has been canceled, and a new RFP 
will be issued.   
 
*** 
A. As explained during the February meeting, there is an 
opportunity for the subcontractors to have the materials 
they purchased for the original contract be used in the 
new contract.  
 
B. To take advantage of the opportunity, former ACI 
subcontractors must provide the contracting officer 
with documentation that proves that materials were 
purchased for the ACI prime contract, and not paid for 
by ACI. 
 
1. USACE needs copies of invoices.   
 
2. If materials are still on site, USACE also needs 
photographs showing the quantity of materials 
and their current location. 
 
C. If a former ACI subcontractor wants to remove the 
company’s materials from the RPTC site, the company 
has to provide acceptable proof of ownership, and then 
USACE will make arrangements to give the company 
access to the site to remove the materials. 
 
(R4, tab 11 at 1).  ASCT understood that if it wanted to remove its materials from the 
project it was free to do so as long as it could prove its ownership to the materials 
(tr. 111-13). 
 
 On July 15, 2013, ASCT sent an email to the contracting officer, referencing 
prior contact between the parties, providing a spreadsheet detailing $907,612.51 in 
procured materials
3 (R4, tab 12 at 2, 4-5).  At no point did the government’s contracting 
officer believe that he made an offer to purchase materials from ACI’s subcontractors 
(tr. 174-75).  On November 23, 2013, the contracting officer sent a letter to one of 
ACI’s subcontractors informing the company that the government had cancelled the 
solicitation relating to the project’s reprocurement, that the requirement was also 
cancelled, and would no longer be executed by the USACE (R4, tab 13 at 3).  ASCT 
                                              
3 Once again, the document at Rule 4, tab 12 does not contain any attachments; 
however, the attachments are located at Rule 4, tabs 20-24. 
 

8 
 
received this letter on November 27, 2013 (id., at 1).  ASCT sent an email to Navy 
Commander Keith Jensen on November 28, 2013, acknowledging the reprocurement’s 
cancellation, and asserting that it had not removed its materials, and had incurred 
security and warehousing expenses based on the government’s promise to procure the 
materials (R4, tab 14 at 3-4).  Commander Jensen responded on December 1, 2013, by 
referring ASCT to the Government of Afghanistan (id. at 2).  ASCT contacted 
Commander Jensen on December 5, 2013, and on December 14, 2013, again asserting a 
USACE promise to procure ASCT’s materials (id. at 1-2).  Since taking control of the 
construction site, the Government of Afghanistan has not permitted ASCT to remove its 
materials from the site (tr. 62). 
 
 In a May 18, 2014 email, ASCT’s then counsel, Sher Saeedi, contacted 
Lieutenant Colonel Gary Davis, the District Chief of Contacting, seeking to “resolve 
this issue in an amicable way” (R4, tab 16 at 4).  Mr. Saeedi’s email asserted that 
ASCT had been “left in a limbo by USACE with assurances of purchase of the goods 
at the site” (id.).  That same day, LTC Davis, informed ASCT that an agreement to pay 
it for materials or material storage was “not allowed,” because the government was not 
in a contract with ASCT (id. at 3).  In a May 27, 2014 email, Mr. Saeedi asserted that 
ASCT had decided not to remove its materials, and had incurred additional security 
costs, based on USACE’s assurances (id. at 2).  Mr. Saeedi again contacted LTC Davis 
on June 9, 2014, stating that he had not heard back from the government and 
requesting a response (id. at 1).   
 
D. ACI’s Appeal of the USACE Termination for Default 
 
 Mr. Edward Boddie, the contracting officer involved in the decision to terminate 
ACI for default and ultimately to settle ASBCA No. 58604, testified that he only settled 
the appeal to ensure that the progress payments withheld by the USACE could be used 
to compensate subcontractors unpaid by ACI (tr. 168-69).  The government used the 
full amount of the termination litigation settlement ($2,206,615.09) to fund a trust 
account that was used exclusively to ensure ACI reimbursed its subcontractors, 
including ASCT, less certain legal and administrative fees it had incurred during the 
litigation (tr. 169-71; R4, tab 31 at 2-4).  Mr. Boddie did not wish to pay ACI directly, 
out of an abundance of concern regarding ACI’s prior nonpayment issues (tr. 168-69).  
In exchange for this arrangement, ACI and the government agreed to a no-cost 
termination for convenience (tr. 171-72).  ACI received no direct compensation from 
the settlement-established trust account, only reimbursement after it paid other parties 
(tr. 170-71).   
 
E. ASCT Brings Suit Against ACI in Delaware State Court 
 
 ASCT asserts that its remaining balance on the subcontract was $2,714,217 
(R4, tab 44 at 1).  Due to ACI’s default on the contract ASCT never completed the 

9 
 
subcontract, and at the time of the termination ASCT asserted that it was owed 
$1,246,570.09 by ACI (R4, tab 26 at 1; tr. 92).  In 2016, ASCT sued ACI in Delaware 
Superior Court for $2,838,360.52, and obtained a judgment in the amount of 
$2,838,610.52 (R4, tab 27 at 1).  ASCT entered into a settlement with ACI regarding 
this litigation, and obtained $430,000 from ACI, an amount financed by the trust 
account created by the government’s settlement agreement with ACI relating to their 
default termination litigation (R4, tab 6 at 1-2; tr. 70, 169-71; R4, tab 31 at 2-4).  As a 
part of its resolution of its litigation with ACI, ASCT executed a release of claims 
discharging its right to pursue ACI further under the subcontract (R4, tab 6 at 1).  
However, the release included a purported carve-out for ASCT’s potential claim 
against the USACE, authorizing ASCT to pursue “any equitable adjustment claim(s), 
as well as any claim(s) based on quantum meruit, estoppel or other legal theories . . . in 
connection with, materials purchased by ASCT in connection with the RPT Project or 
their diminution in value, as well as related storage, security and other costs and 
expenses” (id.).   
 
F. ASCT Offers to Sell Materials to Government and then Files a 
Claim 
 
 On April 10, 2017, ASCT’s prior legal counsel, David Felice, sent an email to 
the government, stating that “I am writing to gauge the Corps’ interest in purchasing 
the materials ASCT maintains on the project site and to reimburse ASCT for expenses 
related to maintaining and securing the materials for the past several years” (R4, tab 32 
at 1).  On June 8, 2017, Mr. Felice again contacted the government, writing “[m]y 
client would like to know if the USACE intends to negotiate a resolution to this matter 
or not” (R4, tab 17 at 1).  The government did not express any interest in purchasing 
the materials or reimbursing ASCT for expenses (tr. 75-76).  
 
 On June 27, 2018, ASCT filed a certified claim seeking $1,898,835.40, 
comprised of $886,890.09 for materials; $463,329.45 for security and warehousing 
expenses; $200,130 for accommodations and a camping facility; $277,064.24 for 
construction equipment; and $71,421.62 for attorney’s fees (R4, tab 3 at 12).
4  ASCT’s 
claim asserts that the USACE’s request that ASCT not remove its materials created an 
implied-in-fact contract whereby the government would directly compensate ASCT for 
its materials and, since the government never rescinded these instructions, ASCT was 
also entitled to be compensated for its storage costs to present (id. at 11).  The USACE 
                                              
4 ASCT’s claim asserts that it is based on implied-in-fact contracts with the USACE 
(R4, tab 3 at 7).  However, ASCT asserts that there are other legal bases which 
may apply, including a unilateral contract, “quantum meruit . . ., quantum 
valebant . . . unjust enrichment, promissory estoppel, implied-in-law contracts, 
conversion, and taking of property without just compensation under the Fifth 
Amendment” (id. at 9-10).   

10 
 
contracting officer issued her final decision on October 31, 2018, finding partial merit 
in ASCT’s claim (R4, tab 2 at 1-2).  The contracting officer found no evidence that the 
government had expressed an interest in purchasing ASCT’s equipment, labor camp, or 
materials warehoused in Kabul and in Pakistan (id. at 7-8).  In addition, the contracting 
officer found that the parties had not reached a meeting of the minds regarding a 
transaction with government paying ASCT for its materials (id.).  However, the 
contracting officer found that “an agreement might be interpreted to exist” whereby the 
government, in essence told ASCT to “keep your property already at the Project, since 
the Government might need it, and in exchange the Government will pay you for the 
costs incurred in keeping the material safe” (id. at 8).  The contracting officer found that 
this was an implied-in-fact contract that ended on November 28, 2013, when ASCT 
learned that the government had cancelled the reprocurement, and awarded ASCT 
$78,936, conditioned on ASCT submitting a proper invoice for the verified costs (id. 
at 11).  ASCT timely appealed to the Board (notice of docketing Feb. 1, 2018).  
ASCT’s complaint, dated March 4, 2019, asserts five counts, but an implied-in-fact 
contract is the only legal theory properly developed.
5  Count IV of ASCT’s complaint, 
“Discussion of ASCT’s Claim” asserts that there was a Fifth Amendment taking of 
ASCT’s property, and that the government was negligent in failing to properly 
investigate and supervise ACI, causing ASCT’s losses (compl. at 35). 
 
 In this appeal, ASCT asserts that it is entitled to the same amounts as contained in 
its claim, plus an additional $54,612.39 in warehouse and security fees (compl. at 36).  
ASCT estimates that $366,088.23 in material and all of its equipment was on the project 
site, with the remainder of material ($520,801.86) located either in Kabul, Afghanistan 
or in Pakistan (R4, tab 21 at 3).  ASCT assumed that the government wanted its off-site 
materials (which it warehoused), its equipment, and its camp facilities (tr. 48, 100-04, 
123-24, 126).   
 
 After ASCT filed its complaint, the government filed a motion to dismiss.  The 
Board denied the motion to dismiss on February 27, 2020.  ASCT Group, Inc., ASBCA 
No. 61955, 20-1 BCA ¶ 37,540.  In our earlier decision, the Board noted that both 
                                              
5 Rather than presenting legal theories, the “counts” in ASCT’s complaint mostly 
present argument regarding the proper calculation of its claimed damages.  
Count I of the complaint is “The Amount Already Offered in the Final Decision 
for Costs of Security and Staffing Should be Increased to Reflect the Actual 
Costs” (compl. at 15).  Count II of the complaint is “All of the Amounts 
Claimed Should be Paid.  The Following are Point-by-Point Answers to the 
Final Decision’s Denial of Appellant’s Claims” (id. at 17).  Count III of the 
complaint is “Appellant is Clearly Entitled to Recovery Under the Implied-in-
Fact Contract Doctrine” (id. at 25).  Count IV of the complaint is “Discussion 
of ASCT’s Claim” (id. at 32).  Count V of the complaint is “Details of the 
Claimed Compensation” (id. at 35).     

11 
 
parties “agree that the Board does not have jurisdiction over claims sounding in tort 
independent of a contract, and does not have jurisdiction of Fifth Amendment taking 
claims” and that ASCT had confirmed that it was only asserting a contractual cause of 
action.  Id. at 182,289. 
 
DECISION 
 
 ASCT asserts that it is entitled to recover based on the existence of an implied-
in-fact contract between the USACE and ASCT created by the contracting officer’s 
statements at the February 14, 2013 meeting.  The government disputes the existence 
of an implied-in-fact contract and additionally asserts that an implied-in-fact contract 
is precluded by the existence of an express contract between ACI and ASCT for the 
same materials, and, even if there were an implied-in-fact contract, the off-site 
materials, and camp facilities were not part of the contract.   
 
I. Implied-In-Fact Contracts 
 
 The Board possesses jurisdiction to entertain implied-in-fact contracts.  In order 
to establish the existence of an implied-in-fact contract with the United States, ASCT 
must establish the same elements as for a written contract:  (1) mutuality of intent to 
contract; (2) consideration; (3) unambiguous offer and acceptance; and (4) actual 
authority on the part of the government representative whose conduct is relied upon.  
See, e.g., City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990).  Like an 
express contract, an implied-in-fact contract must be based upon a meeting of the minds; 
however, the meeting of the minds is “inferred, as a fact, from conduct of the parties 
showing, in the light of the surrounding circumstances, their tacit understanding.”  
Trauma Service Group v. United States, 104 F.3d 1321, 1326 (Fed. Cir. 1997) (quoting 
Hercules Inc. v. United States, 516 U.S. 417, 424 (1996)); United Pacific Insurance 
Company, ASBCA No. 53051, 03-2 BCA ¶ 32,267 at 159,624, aff’d, 380 F.3d 1352 
(Fed. Cir. 2004).   
 
II. ASCT Has Not Demonstrated the Existence of an Implied-In-Fact Contract 
 
 ASCT asserts that the implied-in-fact contract was created by its acceptance of 
an offer by the contracting officer, Mr. Boddie (app. br. at 15-21).  Thus, we determine 
that the ASCT has satisfied the authority requirement.  Similarly, ASCT’s allegation 
that it maintained the materials on-site for use by the reprocurement contractor 
provides consideration (app. br. at 17-18).  The government appears to concede that 
there was consideration for an implied-in-fact contract for the storage of ASCT’s 

12 
 
materials, but not for a contract to purchase the materials (gov’t resp. br. at 31). 6  This 
leaves mutuality of intent to contract, and unambiguous offer and acceptance as the 
contract formation elements in dispute.   
 
 As noted in the findings of fact above, we hold that Mr. Boddie did not make a 
contractual offer at the February 14, 2013 meeting.  Faced with conflicting statements 
regarding the February 14, 2013 meeting, we conclude the contemporaneous statements 
and actions of the parties to be of greater weight than the declarations submitted eight 
years after the fact.  See, e.g., Intermark Managed Servs., Inc., ASBCA Nos. 57654, 
57655, 12-2 BCA ¶ 35,091 at 172,344 (quoting Fincke v. United States, 675 F.2d 289, 
295 (Ct. Cl. 1982)).  First, we look to the February 25, 2013 meeting summary email.  
Both Mr. Boddie and Mr. Azimi testified that the summary was consistent with the 
statements at the meeting (tr. 49-50, 95-96, 195-96).
7  The email provides that “USACE 
has procedures that it can use to pay you for those materials so that they can be used to 
finish building the project.  Please contact me if you are interested in selling those 
materials to USACE” (R4, tab 8 at 2) (emphasis added).  The language of the email 
provides that the government can use its procedures and that the subcontractors should 
contact Mr. Boddie if they were interested in selling the materials.  We do not interpret 
the email as making a binding offer to the subcontractors, rather Mr. Boddie invited 
expressions of interest in selling materials.  This interpretation is consistent with the 
other contemporaneous statements in the record, and is consistent with Mr. Azimi’s 
testimony that he understood that there were other steps that would need to be taken to 
reach an agreement with the government for the sale of the material (tr. 106-11).  Thus, 
we hold that ASCT has not established the existence of an implied-in-fact contract for 
the sale or storage of its materials or equipment. 
 
 The subsequent communications between the parties are also insufficient to 
demonstrate the existence of an implied-in-fact contract.  ASCT’s March 14, 2013 
response to the contracting officer stated that “as we owe most of the suppliers now for 
the procured materials, it would be of our mutual benefit to sell you our procured 
materials for your future plans.  And [it] would be our pleasure to know how long will 
it take for the process, and what you would require us to send you” (R4, tab 9 at 3-4).  
Even allowing for a non-native English speaker, who might use more formal and less 
forceful language than a native English speaker, the email is clearly an inquiry as to 
whether the government would be interested in purchasing ASCT’s supplies, rather 
than an email seeking to confirm the details of an existing agreement. 
                                              
6 The government’s brief does not challenge the existence of an implied-in-fact 
contract for ASCT’s storage costs for February through November 2013 as 
found in the final decision.   
7 As both witnesses testified to the accuracy of the February 25, 2013 email as a 
summary of the February 14, 2013 meeting, we do not find the issue of the 
possibly missing audio recording to be relevant.   

13 
 
 Similarly, ASCT’s March 25, 2013 email was an inquiry as to whether the 
USACE would purchase the material, rather than an email seeking to confirm an 
existing deal.  Admittedly, the email starts with the statement that:  “[a]s was requested 
from your side by email, and agreed in the meeting, it was stated that the procured 
material for this project that are not billed to ACI will be paid by USACE” (id. at 1).  
However, the email continues with the statement that:  “neither a positive nor negative 
response have been clarified from your side for the procurements payment and 
processing” followed by a request that the USACE “please let us know, if these 
materials will be procured by USACE and paid to us or not?” (id.).  At best, the email 
can be read as saying, “I thought we had a deal, but you haven’t responded, please let 
me know.”  Unfortunately for ASCT, a statement that “I thought we had a deal” does 
not demonstrate a tacit understanding between the parties.  Trauma Service Group, 
104 F.3d at 1326. 
 
 ASCT additionally cites to the government’s June 26, 2013 presentation to 
ACI’s former subcontractors as an offer by the government to purchase its materials 
(app. br. at 23).  However, the statements at the June 26, 2013 are, if anything, more 
clearly conditional than the earlier statements.  After informing the subcontractors of a 
reduction in the scope of the project the government informed the subcontractors that 
“there is an opportunity for the subcontractors to have the materials they purchased for 
the original contract be used in the new contract” and requesting information from the 
subcontractors (R4, tab 11 at 1).  The presentation additionally informed the 
subcontractors that they could remove their material from the site after demonstrating 
ownership (id.).  The government’s statement that there was an “opportunity” cannot 
be read as a binding offer.   
 
 In November and December 2013, ASCT emailed Navy Commander Jensen 
alleging that it had not removed its materials, and had incurred security and warehousing 
expenses based on the government’s promise to procure the materials (R4, tab 14 at 1-4).  
But here, the e-mails read as if ASCT is alleging that the government failed to take a 
contemplated future action, not that that the government had agreed back in February to 
enter into a contract.  The same is true with regard to the communications between 
ASCT’s then counsel, Sher Saeedi, and Lieutenant Colonel Gary Davis, the District Chief 
of Contacting, in May 2014, where Mr. Saeedi indicated that ASCT wanted to “resolve 
this issue in an amicable way” (R4, tab 16 at 4) and that ASCT had been “left in a limbo 
by USACE with assurances of purchase of the goods at the site” (id.).   
 
 In April 2017, after ASCT sued ACI in Delaware state court, and settled that 
action, ASCT’s then attorney contacted the government stating that “I am writing to 
gauge the Corps’ interest in purchasing the materials ASCT maintains on the project 
site and to reimburse ASCT for expenses related to maintaining and securing the 
materials for the past several years” (R4, tab 32 at 1).  In June of that year, ASCT’s 
counsel again contacted the government, writing “[m]y client would like to know if the 

14 
 
USACE intends to negotiate a resolution to this matter or not” (R4, tab 17 at 1).  Once 
again, these communications, predating ASCT’s claim, can only be read as seeking a 
contract for the sale of the materials, and not as support for the existence of a meeting 
of the minds.   
 
 Moreover, the government’s contemporaneous statements can only be read as 
conditional statements that something “could” happen.  Statements of future intent do 
not constitute an offer.  See, e.g., Linear Tech. Corp. v. Micrel, Inc., 275 F.3d 1040,  
1050 (Fed. Cir. 2001); Frazier v. American Airlines, Inc., 434 F. Supp. 2d 279,  
286-87 (D. Del. 2006), aff’d, 229 F. App’x 171 (3d Cir. 2007) (nonprecedential).  The 
March 20, 2013, email from a government representative to Mr. Abdul Mateen Azimi, 
ASCT’s Vice-President, provided that he did not “know how long the process will 
take,” that it was “for the contracting officer to take action on,” and that the government 
would “eventually (I think) process the stored materials for payment but the 
Contracting Officer is running the show.”  (R4, tab 9 at 2)  Additionally, the June 26, 
2013, presentation to the former ACI subcontractors informed them that “there is an 
opportunity for the subcontractors to have the materials they purchased for the original 
contract be used in the new contract . . .  To take advantage of the opportunity, former 
ACI subcontractors must provide the contracting officer with documentation that 
proves that materials were purchased for the ACI prime contract, and not paid for by 
ACI … USACE needs copies of invoices . . . .  If materials are still on site, USACE 
also needs photographs showing the quantity of materials and their current location” 
(R4, tab 11 at 1).  Once again, the presentation uses conditional language about this 
being an opportunity and not does not state that the government had already agreed to 
purchase the material.  The presentation also provided that “[i]f a former ACI 
subcontractor wants to remove the company’s materials from the RPTC site, the 
company has to provide acceptable proof of ownership, and then USACE will make 
arrangements to give the company access to the site to remove the materials” (id.).  This 
statement is contrary to ASCT’s assertion that it was directed to maintain its material on 
site and that the direction was never revoked.  ASCT understood that if it wanted to 
remove its materials from the project it was free to do so as long as it could prove its 
ownership to the materials (tr. 113).   
 
 Additionally, we note that ASCT’s April 10, 2017 communication “writing to 
gauge the Corps’ interest in purchasing the materials ASCT maintains on the project 
site and to reimburse ASCT for expenses related to maintaining and securing the 
materials for the past several years” (R4, tab 32 at 1) is inconsistent with ASCT’s 
current position that an implied-in-fact contract was created in 2013.  ASCT attempts 
to downplay the communication as an attempt by its prior attorney to “nudge” the 
government into honoring its prior commitment (app. reply at 11).  However, the 
communication makes no reference to an existing contract as would be expected if 
ASCT believed that such a contract already existed.  As we have already determined 
that the 2013 communications did not create an offer by the government, we interpret 

15 
 
this 2017 communication as being consistent with our holding that there was not an 
implied-in-fact contract created in 2013. 
 
 ASCT argues that offer, acceptance, and mutuality of intent to contract is 
demonstrated through its performance.  According to ASCT, the fact that it secured its 
material and kept the material on site is evidence of acceptance by performance.  
(App. br. at 16-17).  ASCT asserts that its actions evidence the existence of the 
contract because, without an agreement, it would have removed its materials and sold 
the materials to others (id. at 18).  However, ASCT also makes the conflicting 
argument that the materials were made to specification for the police station and 
“would have been very difficult to sell” (id. at 18-19).  If the material would be “very 
difficult to sell” ASCT’s decision to leave the materials on site is more likely evidence 
of ASCT’s hope of a possible sale to the government, than evidence of performance of 
an implied-in-fact contact.   
 
 ASCT additionally speculates that the government was “under great pressure to 
make a binding offer” to get the subcontractors back to work (app. br. at 19).  ASCT 
cites no evidence for this “great pressure” and we do not deem it sufficient to support a 
finding of mutual intent to contract.  Similarly, ASCT’s speculation that “it is 
reasonable to assume the Army had to offer to pay outstanding expenses” (app. reply 
at 15) is not evidence that scope of the purported implied-in-fact contract included  
off-site materials and equipment.   
 
 The government relies upon our holding in Intellicheck, Inc., ASBCA No. 61709, 
21-1 BCA ¶ 37,892 for the proposition that simply maintaining the status quo with 
respect to the property is not conduct consistent with the existence of an implied-in-fact 
contract (gov’t resp. br. at 30-31).  In Intellicheck the appellant was a subcontractor on a 
multiple award contract with the Navy.  As part of its performance, Intellicheck had 
possession of certain government property that was to be returned to the Navy 
at completion of the task order.  In September 2013, the prime contractor filed a claim 
related to additional labor costs.  The matter was appealed to this Board in March 2014, 
and was settled in August 2014.  However, Intellicheck had not received instructions for 
the return of the property, and did not release the last of the property to the Navy until 
the end of December 2015.  Intellicheck, 21-1 BCA ¶ 37,892 at 184,029.  Intellicheck 
subsequently submitted a claim asserting an implied-in-fact contract for its costs of 
storing and maintaining the Navy property.  Id. at 184,029-30.  The Board held that no 
implied-in-fact contract had been formed because Intellicheck had not demonstrated the 
existence of mutuality of intent, and an unambiguous offer and acceptance.  “In order to 
establish mutuality of intent, appellant must show, by objective evidence, the existence 
of an offer and acceptance.”  Id. at 184,131 (citing Guardian Safety & Supply LLC d/b/a 
Enviro Safety Products, ASBCA No. 61932, 19-1 BCA ¶ 37,333 at 181,561 (in turn 
citing Anderson v. United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003))).  “Once an 

16 
 
offer is made, ‘acceptance of the offer [must] be manifested by conduct that indicates 
assent to the proposed bargain.’”  Id. (citing Guardian Safety & Supply, 19-1 BCA  
¶ 37,333 at 181,561 (in turn quoting Northrop Grumman Sys. Corp. Space Sys. Div., 
ASBCA No. 54774, 10-2 BCA ¶ 34,517 at 170,237)). 
 
 Intellicheck differs from the appeal before us in several aspects; however, the 
holding is instructive.  As explained above, we do not find the statements at the 
February 14, 2013 meeting, or in the February 25, 2013 email, to have constituted an 
offer.  Thus, we reject ASCT’s argument that it accepted the offer by performance.  
Rather, we hold that ASCT’s communications with the government formed the offer.  
There is no evidence of conduct by the government that can objectively be seen as 
assenting to the implied-in-fact agreement.  Intellicheck, 21-1 BCA ¶ 37,892 
at 184,031; Guardian Safety & Supply, 19-1 BCA ¶37,333 at 181,561.  Simply put, the 
government’s inaction is not evidence of the formation of an implied-in-fact contract.   
 
 ASCT additionally cites as “evidence” of an implied-in-fact contract statements by 
the contracting officer in the final decision (app. reply at 8 (“The Government has already 
found that this communication was sufficient to create an implied-in-fact contract to pay 
ASCT to secure its materials on site when ASCT accepted the offer by continuing to pay 
the costs needed to store and secure the materials after February 25, 2013”)).  However, 
the contracting officer’s final decision is reviewed by this Board de novo.  See 41 U.S.C. 
§ 7104(b)(4) (action brought before the Board proceeds de novo); Wilner v. United States, 
24 F.3d 1397, 1401-02 (Fed. Cir. 1994) (appeal to board or court from contracting 
officer’s final decision is de novo).  Thus, the statements of the contracting officer, in this 
appeal, an individual different from the contracting officer that made the February 2013 
statements at issue, are not entitled to any deference.  That said, the government has not 
requested that we overturn the contracting officer’s final decision.  Rather the government 
requests that the “contracting officer’s final decision on this matter stand” (gov’t resp. br. 
at 41).  Thus, although we do not find the existence of an implied-in-fact contract for 
ASCT’s storage costs from February through November 2013, we do not disturb the 
contracting officer’s final decision. 
 
 ASCT also dismisses the lack of price discussions as irrelevant to the question 
of contract formation.  While ASCT is correct that a failure to agree on a price does 
not undermine other evidence of mutual assent (app. reply at 9 (quoting Gardiner, 
Kamya & Assocs., P.C. v. Jackson, 369 F.3d 1318, 1322 (Fed. Cir. 2004))) here we 
determined that evidence of mutual assent is lacking.  Once there is evidence of intent 
to contract, the price term can be supplied, but here there was no mutual intent to 
contract, and the lack of pricing discussions is further evidence that an implied-in-fact 
contract was not created. 
 
 Having determined that ASCT has not established the existence of an implied-in-
fact contract, we need not reach ASCT’s arguments regarding the inclusion of 

17 
 
equipment and off-site materials in the alleged contract (app. reply at 15-19), or ASCT’s 
arguments interpreting its settlement agreement with ACI (app. reply at 13-15). 
 
 Having found that ASCT has not demonstrated the existence of an implied-in-fact 
contract, we hold that ASCT’s other asserted bases for recovery are not properly before 
us, are beyond our jurisdiction, or both.  ASCT asserts that the government breached its 
duty of good faith and fair dealing (app. br. at 35-40).  However, ASCT did not present a 
breach of the duty of good faith and fair dealing in its claim to the contracting officer 
(R4, tab 3).  Accordingly, we lack jurisdiction to entertain this allegation.  See, e.g. M. 
Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010) (citing 
James M. Ellett Constr. Co. v. United States, 93 F.3d 1537, 1543 (Fed. Cir. 1996)).  
Even if we possessed jurisdiction to entertain the argument, it would fail because we 
held above that there was not an implied-in-fact contract between the USACE and 
ASCT.  Without a contract, there can be no breach of the duty of good faith and fair 
dealing.  See, e.g., Scott Timber Co. v. United States, 692 F.3d 1365, 1372 (Fed. Cir. 
2012) (holding that the government “could not have breached the covenant of good faith 
and fair dealing by its pre-award conduct because the covenant did not exist until the 
contract was signed”); Tug Hill Constr., Inc., ASBCA No. 57825, 14-1 BCA ¶ 35,777 
at 175,024, aff’d, 622 F. App’x 914 (Fed. Cir. 2015) (nonprecedential).   
 
 To the extent that ASCT ’s complaint can be interpreted as asserting a Fifth 
Amendment taking of its property, or a claim for negligence in selecting the prime 
contractor, ASCT disclaimed these theories in our prior decision, and they need not be 
addressed here.  ASCT Group, 20-1 BCA ¶ 37,540 at 182,289.  
 
CONCLUSION 
 
 For the reasons stated above, the appeal is denied.  The contracting officer’s 
final decision, dated October 31, 2018, and awarding appellant $78,936, subject to 
ASCT submitting a proper invoice, remains in effect.   
 
 Dated:  April 26, 2022 
 
 
 
 
 
 
(Signatures continued) 
 
 
 
 
DAVID D’ALESSANDRIS 
Administrative Judge 
Armed Services Board 
of Contract Appeals 


18 
 
I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 OWEN C. WILSON 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 
 I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeal in ASBCA No. 61955,
 Appeal of ASCT 
Group, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  April 27, 2022  
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals