ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of--

Green Bay Logistic Services Co. 

Under Contract No. H92237-16-C-0030 

APPEARANCE FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 61063 

Mr. Mohammad Nazar 

Vice President 

E. Michael Chiaparas, Esq. 

DCMA Chief Trial Attorney 

Michael T. Patterson, Esq. 

Trial Attorney 

Defense Contract Management Agency 

Chantilly, VA 

OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT 

This is an appeal from a termination for convenience by the Defense Contract 

Management Agency (DCMA or government) of commercial items Contract 

No. H92237-16-C-0030 (the contract) with Green Bay Logistic Services Co. (Green 

Bay or appellant) for the lease of two stakebed or flatbed trucks for six months at 

Bagram Airfield, Afghanistan, at a total price of $22,440. Green Bay claims it is owed 

$46,800 for attempting to deliver vehicles twice. We deny the appeal. 

FINDINGS OF FACT 

1. On 1 June 2016, the government awarded the contract to Green Bay to lease 

two flatbed or stakebed diesel trucks that were 17 to 19 feet in length, 8 feet 11 inches to 

9 feet 7 inches in width, and 7 to 8 feet in height. DCMA further required that the 

vehicles be able to be transported via C-130J and be able to carry up to 20,000 pounds of 

fuel blivets, fuel, and equipment. (R4, tab 2 at G-32) Green Bay proposed an amount of 

$22,400, which was the amount of the awarded contract (R4, tab 3 at G-39). 

2. The contract required that "[t]he Contractor shall provide vehicles that are less 

than three (3) years old (based on vehicle model year) and have less than 75,000KM on 

the odometer" (R4, tab 3 at G-32). This meant that to be in compliance with the contract 

terms, the vehicles must have been at least vehicle model years 2014-2016. 
3. The contract included, by reference, Federal Acquisition Regulation (FAR) 

52.212-4, CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS (MAY 2015) (R4, 

tab 1 at G-11 ), which contains the following relevant portions: 

(a) Inspection/Acceptance. The Contractor shall 

only tender for acceptance those items that conform to the 

requirements of this contract. The Government reserves 

the right to inspect or test any supplies or services that 

have been tendered for acceptance. The Government may 

require repair or replacement of nonconforming services at 

no increase in contract price .... 

(l) Termination/or the Government's convenience. 

The Government reserves the right to terminate this 

contract, or any part hereof, for its sole convenience. In 

the event of such termination, the Contractor shall 

immediately stop all work hereunder and shall immediately 

cause any and all of its suppliers and subcontractors to 

cease work. Subject to the terms of this contract, the 

Contractor shall be paid a percentage of the contract price 

reflecting the percentage of the work performed prior to 

the notice of termination, plus reasonable charges the 

Contractor can demonstrate to the satisfaction of the 

Government using its standard record keeping system, 

have resulted from the termination. The Contractor shall 

not be required to comply with the cost accounting 

standards or contract cost principles for this purpose. This 

paragraph does not give the Government any right to audit 

the Contractor's records. The Contractor shall not be paid 

for any work performed or costs incurred which reasonably 

could have been avoided. [Emphasis added] 

4. On 7 June 2016, Green Bay leased two, model year 2000, Mercedes trucks 

from Ghourband Europe Logistics Services Company, for which it paid $19,800 for a 

non-refundable six-month lease (R4, tab 9 at G-58-59). On 8 June 2016, Green Bay 

had stakebeds installed on the trucks for which they paid $7,800 (R4, tab 9 at G-60). 

5. On 8 June 2016, Green Bay delivered photographs of the trucks to the 

contracting officer's representative (COR). On 30 June 2016, the COR rejected the 

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trucks for not complying with the contract because the vehicles were more than three 

model years old* (R4, tab 12 at G-75). 

6. On 1 July 2016, Green Bay leased a 1989 Mercedes truck and a 1996 

Mercedes truck from Massoud Marzi Seller & Rental Motors Company via another 

non-refundable six-month lease for $19,200 (R4, tab 9 at G-61-62). 

7. On 11 July 2016, Green Bay submitted an invoice for one month's payment in 

the amount of $3,740, covering the period of 1 June 2016 through 30 June 2016 (R4, 

tab 4 at G-48). The government paid this invoice without explaining why it paid for 

non-conforming goods or for goods that were not actually delivered (R4, tab 12 at G-76). 

8. On 14 July 2016, the contracting officer issued a stop-work order on the 

contract (R4, tab 9 at G-50). 

9. On 24 July 2016, the contracting officer provided notice that it was terminating 

the contract for convenience, effective on 25 July 2016 (R4, tab 9 at G-51-53). 

10. On 10 December 2016, Green Bay submitted its settlement proposal. It 

claimed $19,200.00 for "PAID in advance for 6 months, Receipt paid in 7/1/2016 with 

customer ID 145." Green Bay claimed $7,800 to "Repair and fix the Vehicle per US 

Government repres[e]ntative changes." Finally, Green Bay claimed $19,800 for 

"PAID in adv[ an Jee for 6 months to Ghourband Europe Logistic Services co on Date 

6/7/2016." (R4, tab 10 at G-67) 

11. On 13 February 2017, the termination contracting officer (TCO) responded to 

Green Bay's settlement proposal. The TCO noted that the government had paid Green 

Bay $3,740.00 and allowed Green Bay to keep that amount. However, the TCO 

determined that Green Bay was not entitled to any further compensation because its 

"percent of completion for this contract is 0%." The TCO further stated, "G[reen Bay] did 

not comply with the terms and conditions of the contract or the Performance Work 

Statement (PWS). G[reen Bay] failed to meet the requirement that the leased trucks be no 

more than three (3) years old." Further, the TCO quoted Page 3, Section E of the contract 

when it informed Green Bay that the contract specified that acceptance would be at 

* In its opening brief, the government also stated that the vehicles exceeded the height 

requirements (gov't br. at 3). However, this assertion is not supported by the 

record, other than in the contracting officer's final decision. Based on the 

blatant non-compliance with the contract based on the age of the vehicles, 

which is supported in the record, it is unnecessary to analyze the impact that the 

height of the vehicles might have had on the appeal or address the adequacy of 

the record regarding the height requirements. 

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destination and that the government retained "the right to inspect, reject, or terminate any 

items or services that do not meet required specifications." (R4, tab 11 at G-68) 

12. On 15 February 2017, DCMA sent another letter to Green Bay, this time 

signed by the director, DCMA Terminations Group. This letter informed Green Bay in 

more detail why it was not entitled to recovery. DCMA analyzed a "two-pronged 

formula consisting of' a percentage of the contract price reflecting the percentage of 

the work performed prior to the notice of termination, plus reasonable charges the 

Contractor can demonstrate ... have resulted from the termination."' (R4, tab 12 at G-72 

(citing 48 C.F.R. § 52.212-4(1))) 

13. In the 15 February 2017 letter, DCMA outlined the events demonstrating 

that, while Green Bay entered into non-refundable six-month leases, it did so on trucks 

that were more than three years old which violated the term of the contract that 

required the trucks be less than three years old. Further, the contract called for trucks 

that were 7 to 8 feet in height but the trucks that were delivered were over 11 feet tall. 

Therefore, DCMA determined that the contract was O percent complete. This meant 

Green Bay was entitled to nothing under the first prong of the analysis. (R4, tab 12 at 

G-75-76) 

14. Concerning the second prong of the analysis, DCMA noted that Green Bay 

was entitled to "'reasonable charges' resulting from termination" but that Green Bay 

only submitted costs for the trucks it attempted to deliver. Green Bay did not propose 

any settlement expenses. (R4, tab 12 at G-76) 

15. Green Bay timely appealed the TCO's decision. This appeal was docketed as 

ASBCA No. 61063. On 7 July 2017, the government requested to adjudicate the appeal 

on the written record pursuant to Board Rule 11. Despite several attempts from the Board 

to discern Green Bay's position on how to proceed, Green Bay did not submit a response 

that addressed the issue. Accordingly, on 10 August 2017, the Board set the briefing 

schedule under Board Rule 11. 

16. DCMA submitted its opening brief on 9 November 2017, in compliance 

with the Board's 10 August 2017 order. 

17. The Board did not receive an opening brief from Green Bay. On 24 November 

2017, the Board allowed Green Bay additional time to submit its opening brief. The Board 

warned Green Bay that failure to submit an opening brief would mean that the Board would 

decide the case on the record it had, including the government's brief, and that Green Bay 

would not have an opportunity to respond to the government's brief. Green Bay still did not 

respond or file an opening brief. As of the date of this decision, we have not received any 

further communication from Green Bay. 

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DECISION 

This appeal concerns the termination for convenience of a contract where the 

contractor failed to comply with the terms of the contract prior to the government's 

notification of the termination for convenience. "A contractor bears the burden of 

proving by a preponderance of the evidence that it is entitled to a greater termination 

settlement amount than that determined by the TCO." SWR, Inc., ASBCA No. 56708, 

15-1 BCA, 35,832 at 175,225 (citing General Dynamics Land Sys., ASBCA 

No. 52283, 02-1 BCA, 31,659 at 156,411; Unified Eng'g, Inc., ASBCA No. 21565, 

81-1 BCA, 14,940 at 73,936). 

Upon a termination for convenience, FAR 52.212-4(1) directs the government to 

pay contractors: ( 1) "a percentage of the contract price reflecting the percentage of the 

work performed prior to the notice of termination"; and (2) "reasonable charges the 

Contractor can demonstrate to the satisfaction of the Government using its standard 

record keeping system, have resulted from the termination." SWR, 15-1 BCA, 35,832 

at 175,221. Here, Green Bay failed to prove that it is entitled to any amount it 

presented to the government in its termination settlement proposal. 

For the first prong of the analysis, Green Bay would have been entitled to "a 

- percentage of the contract price reflecting the percentage of the work performed prior to 

the notice of termination" had it performed any percentage of the work. Green Bay is 

not entitled to recover any monetary amount, however, because it did not complete any 

percentage of the contract. The vehicles Green Bay delivered or attempted to deliver did 

not comply with the contract and were rejected by the government. (Findings 4-6) The 

contract clearly required vehicles that were "less than three (3) years old (based on 

vehicle model year)" which would require the vehicles to be model year 2014 or newer 

(finding 2). Yet, Green Bay first delivered photographs of vehicles that were model year 

2000, 14 model years older than required by the contract (findings 4-5). 

In an attempt to correct this problem, Green Bay leased different non-compliant 

trucks, this time even older. Instead of leasing newer model year vehicles, Green Bay 

leased vehicles with the model years 1989 and 1996. (Finding 6) 

The government properly declined acceptance of both attempts to deliver 

non-compliant vehicles (findings 5, 8). Green Bay never attempted to deliver 

compliant vehicles. The government's determination that Green Bay completed zero 

percent of the contract was accurate. Thus, Green Bay is not entitled to recovery under 

the first prong of the analysis. 

For the second prong of the analysis, Green Bay did not present any "reasonable 

. charges the Contractor can demonstrate to the satisfaction of the Government using its 

standard record keeping system, have resulted from the termination." We have 

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previously held that this second prong "refers to the recovery of those charges incurred 

that do not relate to work completed but should be reimbursed to fairly compensate the 

contractor whose contract has been terminated." SWR, 15-1BCA135,832 at 175,223 

( original quotations omitted). Green Bay solely provided costs for leasing the vehicles 

it intended to use to perform the contract. Because Green Bay did not submit any 

amounts not related to the work completed, it cannot recover any charges under the 

second prong. 

Had Green Bay submitted an opening brief, it might have argued that the 

payments it made for the various leased vehicles should be analyzed under the second 

prong of the analysis. Even ifwe review the claimed amount under the second prong, 

we cannot agree that entering multiple non-reimbursc::tble lease agreements for 

non-compliant vehicles were reasonable charges that imposed upon the government a 

requirement to pay. As stated above, Green Bay presented invoices to the government 

that demonstrated payment for two separate non-reimbursable leases, arguing that 

because it made payments for the leases that it was entitled to recover those amounts 

(finding 10). Even if Green Bay paid for the two separate non-reimbursable leases, the 

vehicles never complied with the contract and, therefore, are not reasonable charges. 

Indeed, the leases that Green Bay provided to the TCO demonstrate that the vehicles 

did not comply with the contract because the vehicles were more than three years old 

(findings 4, 6). Thus, Green Bay still cannot recover under the second prong. 

Accordingly, Green Bay failed to meet its burden of proving by a 

preponderance of the evidence that it is entitled to a greater termination settlement 

amount than that determined by the TCO. 

We deny the appeal. 

Dated: 12 April 2018 

(Signatures continued) 

CONCLUSION 

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(~wd~G&£J HEIDIL STERHOUT 

Administrative Judge 

Armed Services Board 

of Contract Appeals 
I concur 

RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

I concur 

OWEN C. WILSON 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA No. 61063, Appeal of Green 

Bay Logistic Services Co., rendered in conformance with the Board's Charter. 

Dated: 

7 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals