ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of -- )

)

AISG, Inc. ) ASBCA Nos. 58696, 59151

)

Under Contract No. W5J9JE-10-C-0039 )

APPEARANCES FOR THE APPELLANT: Lochlin B. Samples, Esq.

Karl Dix, Jr., Esq.

Parker A. Lewton, Esq.

Steven Stuart, Esq.

J. Daniel Puckett, Esq.,

 Smith, Currie & Hancock LLP

 Atlanta, GA

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.

 Engineer Chief Trial Attorney

Rebecca L. Bockman, Esq.

Cara M. Mroczek, Esq.

Aimee L. Rider, Esq.

 Engineer Trial Attorneys

U.S. Army Engineer District, Middle East

 Winchester, VA

Edward J. McNaughton, Esq. 

 Engineer Trial Attorney

U.S Army Engineer District, Memphis

OPINION BY ADMINISTRATIVE JUDGE KINNER

Appellant, AISG, Inc. appeals from a decision by an Army Corps of Engineers 

Contracting Officer (CO) which denied its claim for costs incurred before it began 

construction of a police headquarters in eastern Afghanistan. A hearing of this dispute 

was conducted at the Board, September 10-13, 2018.

FINDINGS OF FACT

To fulfill a requirement of the Combined Security Transition 

Command-Afghanistan/NATO Training Mission-Afghanistan, the United States 

Army Corps of Engineers (the Corps) contracted with AISG for the design and 

construction of a Uniformed Police District Headquarters (DHQ) and associated 

structures in Sar Hawza, Paktika, Afghanistan (R4, tab 60 at 79; gov’t br. at 1-2). 
2

The plans for the DHQ are a common design the Corps used for many similar 

facilities (tr. 3/277). The contract was awarded September 3, 2010 and construction 

was required to be completed within one year. (R4, tabs 2 at 1, 3, 10) The diagram 

and photos in the original contract show the construction site, referred to as site #1,

just outside the perimeter wall of the forward operating base (FOB) (R4, tab 60 

at 1064, 1066-67, 1069-72, 1075).

1

 Subsequent encroachment on that site by the 

military made it unusable and the Corps was forced to find a new location (gov’t br.

at 9 ¶ 34; tr. 4/300-04). 

Locating and establishing a new site for the work required several steps, 

including resolution of right-of-entry and land use issues which was delayed by the 

change of the Afghan sub-governor (gov’t br. at 9-11 ¶¶ 35-40, 39 ¶ 132; R4, tab 158 

at 2; tr. 4/304-05). The difficulties in this and similar real estate efforts made the 

Corps hesitant to consider recommendations to relocate the construction site (gov’t 

br. at 11 n.11; tr. 4/182-83, 233-35).

Mr. Robert Sokoloski was the Corps’ project engineer for the contract (R4,

tab 14). On March 5, 2011, he conducted an investigation of a proposed new 

construction site (id.). His report of that investigation shows a site close to the village 

of Sar Hawza (id. at 2-3). He reported that the location he investigated was preferred 

by the local government due to its proximity to the village (id. at 1). The sub-governor 

requested that the site be located closer for the village (id.). Mr. Sokoloski provided 

coordinates for the proposed site (id.). He recommended that location because there 

were “little to no obstructions for construction activities” (id. at 3). He concluded that 

construction could commence on that site if water was confirmed and no adverse land 

ownership issues arose. That report, and Mr. Sokoloski’s conclusions, were not 

subsequently finalized or approved by the Corps (gov’t br. at 15 n.16). Thus, 

Mr. Sokoloski’s report did not establish a new site for the construction.

NATO instructions governed requests for land to support Afghan forces, and 

the appropriate legal authority to occupy the land on which to build Afghan 

infrastructure projects (R4, tabs 118 at 2, 120). In accordance with NATO 

instructions, the Corps contracted with JQ Builders to perform an assessment of the 

site selected as the new location for the construction (R4, tab 15 at 2). The May 28, 

2011 report by JQ Builders reflects its understanding that the site assessment was 

following the master plan by the Afghan Ministry of Interior (MOI), (id. at 4). 

 1 The proposed locations for construction identified in the photos and site maps were 

referred to by number. Site #1 was the original site next to the FOB (app. 

br. at 9 n.6; tr. 1/36, 2/205). The parties stipulated that three other locations 

were identified: the Riles/Sokoloski/tab 14 coordinates, site #2 and site #3, 

depicted on the exhibits by color respectively as green, red and blue (tr. 2/22-23, 

203-04).
3

JQ Builders was performing the assessment of Afghan government-owned land in 

three police districts (id. at 9). The site it evaluated for this contract is at the center of 

the police district, with an Afghan National Police (ANP) post at the center of the site 

(id. at 4). 

In addition to the ANP post, the site was noted to be “hard rock” and 

considerable cutting and grading would be required to create a buildable site (id. at 5). 

JQ Builders verified that the new site was on property owned by the Afghan 

government by producing documents “signed by all possible government officials and 

local elders” (id.). The report included copies of those documents in Pashto, Dari and 

English translations (id. at 14-27). An attachment to the report is the police chief’s 

letter which states that local Shura elders, government officials and the local NATO 

commander visited and selected the site (id. at 15). The report also stated that “[t]he 

surrounding area around the proposed site is private land; there is no possibility for the

extension of the proposed site to the surrounding area. Facility will be constructed 

[within] the border of the Grid Coordinates” (id. at 5). The photographs 

accompanying the report clearly depict the ANP post at the center of the proposed 

construction site (id. at 29-30). The parties identified this site as site #2.

On May 17, 2011 the Corps and Afghan representatives executed a new License 

for Construction for site #2 (R4, tab 116). The agreement was signed by the Afghan 

Deputy Governor, the sub-governor, the Sar Hawza police commander and the Afghan 

director of Agriculture and Land Department (id. at 14). The documents provided 

with the JQ Builders report were included with the license to construct (id. at 11-16). 

The site sketch included with the license depicted an ANP post located on the site (id.

at 14). AISG did not receive a copy of this license during contract performance

(tr. 1/97, 4/304-05) nor did AISG ever ask to see the license (tr. 1/292). 

Another Corps project engineer, Jeffrey Blackwell, visited the site on June 19-20, 

2011 (R4, tab 16). Mr. Blackwell met the sub-governor, who confirmed the official 

Afghan support for site #2. In his report, he explained the new DHQ would be an 

additional facility rather than replacement or enlargement of the ANP post (id. at 1). He 

understood that, in 2010, the sub-governor and local government officials had requested a 

site near the village (id. at 2). Mr. Blackwell noted “there is sufficient area for the 

proposed ANP DHQ at this area, once the existing ANP structure is demolished” (id.). 

But he considered the extensive rock at the site to be a condition that had to be 

considered in plans for construction (id. at 3). Mr. Blackwell believed building at site #2 

would provide an additional ANP facility where one is most needed, closer to the village, 

which was preferred by both local officials and the Army (id. at 4). 

On July 15, 2011, the Corps requested a proposal (RFP) from AISG for the 

price to relocate the construction site from site #1 to site #2 (R4, tab 17). The request 

stated it would be the design-build contractor’s responsibility to provide all necessary 
4

design documents for site adaptation (id. at 1). The request included an aerial photo 

with an outline of the site and its coordinates (id. at 3). 

AISG’s subsequent proposal to move to site #2 explained that AISG

management had visited site #2 on July 25, 2011 (R4, tab 114 at 2; tr. 1/57). Rather 

than describe potential difficulties with the site, the proposal informed the Corps that 

“AISG, Inc. is in agreement with all the terms, conditions and provisions in the RFP 

and agree to furnish any or all items upon which prices are offered at the price set 

opposite each CLIN item” (R4, tab 114 at 1 (emphasis in original)). AISG described 

how it would construct the police headquarters by removing the ANP post and the 

village wall (id. at 3). The proposal included pictures showing the boundaries for the 

new site that encompassed the ANP outpost and the bottom corner overlapping the

corner of the village wall “20-30 meters which will require removal” (id. at 2). The 

ANP post was described as “HESCO construction” which AISG proposed to 

disassemble to allow the HESCO materials to be reused (id. at 2-3). The ANP post 

could be disassembled because HESCO walls are wire baskets filled with dirt. AISG

described how it would begin construction at the village wall to ensure security for the 

village (id. at 3). 

As discussed in the JQ Builder’s report, the company understood the site had 

rock outcroppings which required removal with heavy equipment and leveling to 

prepare the hill upon which the ANP outpost sat for construction (id. at 4). The 

proposal specifically included “security for site personnel, materials, and life support 

area [LSA] for work force” (id. at 5). AISG indicated it spoke with Afghan army and 

police commanders who informed it that there were significant insurgent activities in 

that area (id. at 4). There is no mention in the proposal of concern by the Afghan army 

or police that the ANP did not want its outpost removed. Nor did AISG indicate that 

anyone from the village informed it that the portion of the wall overlapped by site #2 

should not be removed. 

The parties agreed to Modification No. 2 to the contract to relocate the 

construction to site #2 (R4, tabs 3-4). That modification was intended to include all 

costs to relocate the work (id. at 3). As in the RFP, the modification noted the designbuild contractor’s responsibility to provide all necessary documents for site adaptation 

(id. at 2). Mr. Dana Lilly, director of construction, signed Modification No. 2 for 

AISG on January 16, 2012 (id. at 1). The Corps’ price negotiation memo for 

Modification No. 2 reflects that the parties agreed to eliminate the line item for 

removal of the ANP post because taking down HESCO walls is too minor a task to be 

considered separate from site preparation (R4, tab 167 at 2-3). The line item for 

removing the village wall was also eliminated when the Corps determined a HESCO

wall would be built next to the village wall at that spot (id. at 3). The overlap of the 

construction site with the village wall was not a concern to AISG (tr. 1/163-65). 
5

Mr. Lilly contacted the newly arrived contracting officer’s representative (COR),

Mr. Dennis Riles, by email on February 28, 2012 from Kabul (tr. 1/170-71). First, he sent 

a message to Mr. Riles saying: “Please be advised that we are planning to arrive by 

helicopter to do a site survey with AISG company President Mr. Carter Andress at 

approximately 1300 to 1400 hrs. today and wish to meet with anyone from your group who 

has oversight to that area and project” (R4, tab 204 at 2). AISG had not provided advance 

notification of its plan to visit the site. In the afternoon, Mr. Lilly followed-up his request 

with a telephone call and a second email asking Mr. Riles: “For conformation purposes, 

can you forward to me the exact coordinates of the site we are going to visit” (id. at 1; see

tr. 3/301). It is not clear why that information was not available to AISG either from the 

contract documents, its proposal or AISG management’s visit to the site in July 2011. 

Mr. Harry Carter Andress (H.C. Andress), chairman, president and principle 

owner of AISG, made that trip because he occupied a quasi-CEO role in Afghanistan

while his brother Mr. Kiffer Andress, who was CEO, was focused on contracts in Iraq 

(tr. 1/56). Mr. H. C. Andress had received the information Mr. Riles had provided in 

response to Mr. Lilly’s email request (tr. 4/294). He was pleased with the site identified 

by the coordinates Mr. Riles provided because there were no obstructions to 

construction on that terrain (tr. 4/294). Mr. H. C. Andress was aware that an ANP

checkpoint was located on the contract site, because AISG had pictures of site #2 from 

its pre-proposal July 2011 visit (tr. 4/295). He testified that he was aware of a critical 

conflict with the ANP post where AISG was to perform the construction (tr. 1/58, 

4/294-95). Mr. H. C. Andress asserted that AISG recognized the site was untenable on 

its July 2011 visit and told the Corps at that time (tr. 1/63-64). There is no other 

evidence that AISG raised a concern about site #2 in 2011. Upon his return from the 

site visit, Mr. H. C. Andress did not question why the site he visited on February 28, 

2012 contained none of the features that were present at the site specified in the contract

or described in AISG’s proposal. 

Mr. Riles had little recall of his role for this contract. He never visited the site 

because no work was occurring while he was assigned to the project (tr. 3/281). 

Although Mr. Riles had been in Afghanistan since September 2011, and he was 

appointed as the COR in February 2012, (R4, tab 199), he had no knowledge of events 

relevant to this dispute before his appointment (tr. 3/326-27). Mr. Riles did not know 

the ANP checkpoint was on site #2 (tr. 3/338-42). 

Mr. Riles remembered responding to Mr. Lilly’s morning email on February 28 to 

explain that he could not join the AISG site visit because he would need to coordinate 

with Army force protection officials (tr. 3/296; R4, tab 204 at 2).

2

 When responding 

 2 The solicitation contained Federal Acquisition Regulation (FAR) 52.236-27, SITE 

VISIT (CONSTRUCTION) (FEB 1995), which explicitly warned AISG that the 

government would not provide a representative or security for a site visit. 
6

to Mr. Lilly’s second email, he first looked for the site location information in the 

resident management system (RMS), which the Corps uses to administer the contract 

(tr. 3/289-90, 3/296, 3/336-40; R4, tab 60 at 218). Finding none, he recalled a site 

assessment, which he thought would have the requested information (tr. 3/296). He 

found the assessment done by Mr. Sokoloski, from which he extracted coordinates that he 

believed would at least get AISG close to the site (tr. 3/296-97, 336-37, 349; R4, tab 14 

at 1). 

His response email to Mr. Lilly stated: “these are the coordinates as I know 

them” listing the Sokoloski coordinates (R4, tab 204 at 1). Mr. Riles sent those 

coordinates to AISG for “confirmation purposes” (id.). He expected AISG to confirm 

the coordinates with the information it possessed and raise any question promptly 

(tr. 3/326). But, Mr. Riles did not know what location those coordinates reflected or if 

they related to the contract. He gave the Sokoloski report only a cursory review and 

clearly did not understand that the Sokoloski coordinates did not reflect the 

construction site in the contract. (Tr. 3/340-43) Based upon his reliance on the 

Sokoloski coordinates when responding to Mr. Lilly, he directed the AISG project 

manager to the same coordinates in response to a similar inquiry on March 15, 2012 

(R4, tab 227). Mr. Riles explained that the email from the AISG project manager did 

not explain what AISG was looking for so he simply again referred to the Sokoloski 

coordinates (tr. 3/327). 

Mr. Riles and his supervisor, Phil Stavrides, also met Mr. H. C. Andress when 

the AISG representatives arrived at the FOB helicopter landing zone returning from 

their site visit (tr. 3/298-99, 4/293-94). They met for 35 to 45 minutes (tr. 3/322, 

4/294). Mr. H. C. Andress did not raise a concern about the construction site in that 

meeting (tr. 3/298-99, 4/294-95). The conversation was primarily about life support 

issues for AISG employees (tr. 3/298-99, 4/294-95). Mr. H. C. Andress was exploring 

whether the government would allow AISG personnel to stay on the FOB and to use 

the hospital and eating facilities (tr. 3/298-99). Mr. Riles did not participate in the life 

support discussion (tr. 3/299). 

AISG counsel stipulated that the contractor had internally discussed nine

different sets of coordinates before using the coordinates that were provided by 

Mr. Riles (tr. 4/112). It mobilized its subcontractors to yet another location close to site 

#2. AISG did not recognize that its subcontractors started work on the wrong site until 

April 25-26, 2012, when the Corps project engineer, Jonathan Jenkins, corrected the 

company’s misunderstanding (R4, tab 267 at 2). An AISG employee, Rock Mikel, then 

selected yet another set of coordinates to shift the work away from the village wall (R4, 

tabs 288-289 at 1). Those coordinates became site #3, AISG’s preferred site. The 

 

Offerors were expected to inspect the site, which would be done at their risk. 

(R4, tab 60 at 19) 
7

subcontractor who had been performing leveling and grading laid out site #3 and 

informed the villagers about site #3 (R4, tabs 288, 343 at 44). On May 10, 2012, 

Mr. Paul Osterhout, an AISG senior project manager, provided those coordinates to 

AISG management personnel as a recommendation for a different project site (R4, 

tab 288). 

Mr. Osterhout also forwarded his recommendation for site #3 by email to AISG’s 

new Afghan country manager, Mr. Frank Guffey, on May 10, 2012 (R4, tab 294 at 2, 6-9). 

His recommendation to change the site was based upon the presence of the ANP

checkpoint and substantial rock formation in site #2 (id. at 4-9). He recommended that 

changing the site would avoid leveling the hill as well as the difficult construction 

necessary to install the septic tank and leach field due to the rock vein (id. at 7-8). He 

conveyed that the district police commander supported construction at the recommended 

site (id. at 8-9). Mr. Osterhout stated AISG’s subcontractor was expected to obtain a letter 

from the district police commander attesting to his support for the new site (id. at 9). On 

May 11, 2012, Mr. Jenkins informed AISG that the Corps only had authorization from the 

Afghan government to work within the boundaries of the site in its license for construction 

(i.e., site #2) ( id. at 1-2; see also R4, tabs 72, 343 at 2-3). He warned that obtaining a 

deviation from that license would require a “long tedious process.” He told them if 

AISG wanted to change the construction site it needed to formulate a request for 

information (RFI) to inquire about such a change (id.). On May 12, 2012, Mr. Guffey 

asked Mr. K. Andress to prepare an RFI to change the coordinates of the construction site 

(R4, tab 294 at 1). 

Despite its interest in obtaining a better site, AISG was late with pre-construction 

submissions required by the contract causing the Corps to issue an interim unsatisfactory 

performance evaluation (R4, tabs 31, 314 at 4). AISG had difficulty with submittals. 

Among other issues, it had assumed that the coordinates Mr. Riles provided in his 

February and March 2012 emails amended the contract to change the construction site 

(app. br. at 14; R4, tab 158 at 20). AISG’s accident prevention plan was submitted in 

February, but for the Sokoloski coordinates (tr. 1/136). AISG should have known 

Mr. Riles did not possess authority to change the contract (R4, tab 199 at 2-3, 6). 

But AISG claimed that it had filed many of the required submittals and it was waiting to 

submit more once the site was changed (R4, tab 343 at 6, 10). AISG was only interested 

in working on site #3, and it acknowledged in its response to the unsatisfactory rating 

that its mobilization of its subcontractors was at the company’s expense (id.). The 

Corps, however, was only interested in progress on the contract site and not an attempt 

to change the site (id. at 2-3). 

The first RFI submitted by AISG, on May 19, 2012, informed the Corps that 

site #2 included the ANP outpost and overlapped the village wall, as evident in the RFP 

for Modification No. 2 and AISG’s proposal (R4, tab 34 at 12). AISG stated that the 

Afghan district governor and the police commander agreed that site #3 was a logical 
8

location on which to build because that would avoid moving village structures and 

paying compensation to the villagers (id.). That discussion ignored the resolution by the 

parties of that issue during negotiations for Modification No. 2. AISG also 

recommended site #3 because it would offer better security with more standoff distance 

and its subcontractors had already swept site #3 for unexploded ordinance (id.). AISG

had not been authorized to perform work on site #3 because that was outside the limits 

of the license for construction. The RFI did not state that AISG could not build on site 

#2. Rather, AISG insisted Mr. Riles had suggested a different site, there would be 

unnecessary costs to work with villagers on site #2, and the ANP post had to be moved 

to use that site (id.). 

The Corps’ consideration of AISG’s RFI focused on the limitations established 

by the license for construction (R4, tab 331). The Corps rejected the move proposed 

by AISG because the license set the coordinates the Corps was required to build 

within, so the Corps concluded it “can’t move site like contractor wants to.” (Id. at 1) 

The Corps did not appear concerned regarding the village wall because AISG did not 

have to build to the boundaries of the site. The government did not expect AISG to 

knock down the village wall. The Corps specifically addressed the wall, not the ANP

checkpoint. It was known that during discussions for Modification No. 2 the plan was 

to remove the ANP post as part of the construction (R4, tab 167 at 1-3).

3 Thus, the 

government’s only response to the RFI was to confirm the coordinates of site #2, and 

to state “construction can be site-adapted within the footprint” (R4, tab 34 at 13).

Mr. Neil Francis, an AISG vice president, had a similar view. Following the 

government’s response to RFI 1, Mr. Francis told Mr. Osterhout that the ANP post did 

not present a problem because he expected the ANP to cooperate when they were

getting a new police station (R4, tab 356 at 3). Mr. Francis also believed AISG could 

 3 Corps witnesses asserted that AISG could have adapted the construction around the 

ANP outpost by adjusting the order of construction or making accommodations 

for the ANP to continue a road check point (LaRosa deposition 39 declaration 

¶¶ 13-14; tr. 4/168-69, 4/231-34). That testimony is not credited. The weight of 

evidence supports the contrary conclusion that the ANP post had to be removed 

to build the DHQ. That point is stated elsewhere in Mr. La Rosa’s deposition, in 

Mr. Jenkins’ deposition testimony, in the government’s site assessments, in 

AISG’s proposal, and shown in the spatial calculations discussed in cross 

examination of Ms. Chew. See e.g., tr. 4/233-35; R4, tabs 114, 499. In fact, 

government counsel acknowledged that site #3 was a better site (tr. 2/206). Also, 

when pointing out that Mr. La Rosa agreed in his deposition that AISG would 

have to move the ANP outpost to build the DHQ, AISG argues Mr. La Rosa’s 

declaration cannot be considered to offer factual evidence due to numerous 

significant infirmities in form and substance of the affidavit, especially the 

electronic signature of that document (app. reply br. at 6-10). 
9

adapt around the village wall (id.) He informed AISG management in a conference

call that its subcontractor needed to be promptly pushed to start the site layout on site 

#2, to get a scheduler, and to change the well site (id. at 2). He warned AISG

personnel that they needed to carefully follow the contract submittal requirements 

(id.). “Each of you needs to be reading the specifications, drawings, SOW” “every 

free minute of time” (id.). There was no mention in that conference call that AISG

could not work on site #2. There was a concern, however, that construction on site #2 

would be far less profitable for AISG. Mr. Guffey explained to Mr. Francis and 

Mr. K. Andress, that preparatory work performed by AISG’s subcontractors on site #3 

would have to be redone to work on site #2 (R4, tab 385). He warned Mr. K. Andress 

that site work on site #2 would be costly and require 65 more days to complete, 

reducing the company’s profits from $1 million to $255 thousand (R4, tabs 370-371).

With AISG’s focus on site #3, the parties began to work at cross purposes. 

While AISG pursued site #3 as its desired construction site, the government was 

expecting progress in accordance with the contract on site #2. At the time AISG

submitted RFI 1, the government had sent a letter telling AISG that it had to stop work 

because its mobilization was in violation of the contract when there had been only one

submittal (R4, tab 314 at 4). Ignoring the Corps’ expectation that submittals would be 

accomplished for site #2, Mr. Guffey responded that AISG had met the contract 

requirements to start work and it was waiting on the government’s response to RFI 1 

so that it could complete site-specific submittals on site #3. He informed his 

management that AISG would receive a letter authorizing mobilization once it

completed submittals after a modification to change the location was approved (R4, 

tab 314 at 1). 

This disconnect continued through the summer. On June 9, 2012, Mr. James Fuquay, 

the Corps quality assurance representative, asked Mr. Osterhout when AISG could start 

construction on site #2 (R4, tab 341 at 2). In response, Mr. Osterhout stated work on site #2 

was “not tenable” due to the presence of the village wall and the ANP post (id. at 1). 

Mr. Osterhout offered that AISG could begin work within 48 hours if the Corps accepted site 

#3 (id. at 2). Consistent with the disconnect, Mr. Fuquay replied that site #3 was not being 

considered and “[t]he check point will have to go at some point during construction after you 

get the go ahead and have some structures up.” (Id. at 1)

Undaunted, AISG submitted its second RFI on August 12, 2012 (R4, tab 43). 

That RFI focused on the presence of the ANP checkpoint and the lack of stand-off 

distance to the village. AISG stated the district commander and police commander 

agreed that site #3 was the logical place to construct the DHQ (id. at 1). To support its 

request, AISG provided letters from the district commander, the district chief and 

district residents (id. at 6, 8, 10). The letters from the Afghan officials echoed AISG’s 

preference to use a location its subcontractor had begun to prepare. The letter from the 

residents states their desire that the new construction not interfere with the village 
10

bazaar. (Id.) Unsurprisingly, the Corps’ response reiterated that the DHQ must be 

constructed within the boundaries set in the contract because the Corps did not have 

authority to deviate from the limits set in its license to construct (id. at 1). 

The Corps clearly had no intention of undertaking the process to obtain a 

license from Afghan authorities for another construction site. To the contrary, the 

Corps continued to pursue progress in accordance with the contract on site #2. On 

August 6, 2012, it issued a cure notice to AISG for its failure to complete the required 

submittals since Modification No. 2 in October 2011. On the date of the cure notice,

only 32 days remained in the performance period. (R4, tab 42) AISG responded to 

that notice arguing that it had completed the majority of the submittals and it was 

waiting for a response from the Afghan MOI to change the site. Apparently 

recognizing its obligations under the contract, AISG also promised to build on site #2 

if the Corps would not reconsider its rejection of the prior RFIs. But the company 

again told the Corps that local Afghan “customers could severely disrupt the 

construction.” (R4, tab 44) Nonetheless, following a meeting with the CO, AISG

submitted a recovery schedule to reflect its ability to complete the contract (R4, 

tab 486). Listed under demolition and grading on that schedule, AISG planned for the

demolition of the ANP post (id. at 30). The plan also acknowledged that the prior 

work on site #3 was not authorized (id. at 33).

On August 29, 2012, AISG submitted its third RFI (R4, tab 45). AISG

reiterated that a corner of site #2 overlapped the village wall and “there was a risk of 

incurring unnecessary resentment from the Village” residents and Afghan officials if 

construction occurred on that site (id. at 1). AISG provided a certification from the 

Afghan MOI that site #3 was Afghan government property with no private ownership 

claims, which authorized the Corps to proceed with construction of the DHQ on that 

site (id. at 6). The Corps’ response informed AISG that it was preparing an RFP to 

move to site #3 (id. at 17). The Corps issued the RFP to relocate the construction to 

site #3, and Modification No. 7 as a no-cost change with a 393-day extension (R4, 

tabs 9, 46, 626). The reason given in the Corps’ basic change document is that “[t]he 

original site conflicts with existing buildings, an ANP checkpoint, perimeter wall, 

access road, etc. A revised location is necessary to continue construction without 

interfering with existing structures and the local village” (R4, tab 593).

On April 2, 2013, AISG submitted a claim seeking $700,300.54 for delay costs 

it incurred between the denial of its first request to move the site in May 2012, and the 

end of December 2012, when the Corps agreed to move the construction to site #3 

(app. br. at 3 n.1; R4, tabs 54, 54-C, 56). The delay costs consist of direct costs to 

maintain the LSA on the site during that 8-month period (app. br. 25-28, 

37-41). AISG appealed to this Board on June 12, 2013, asserting a deemed denial of 

its claim. That appeal was docketed as ASBCA No. 58696. The Corps issued a final 
11

decision denying the claim on February 8, 2014. AISG appealed the final decision, 

which was docketed as ASBCA No. 59151 and consolidated with ASBCA No. 58696.

DECISION

AISG cannot recover the costs requested in its claim because it has failed to 

prove government responsibility for the amounts incurred during that time 

period. There is no legal theory upon which AISG can support its claim.

A. AISG was not denied access to the work site.

AISG’s claim rests upon allegations that the Corps had not obtained 

authorization for construction on site #2 (app. br. at 1, 5, 8, 11-13, 20-21, 31-32, 35) 

and that it could not gain access to site #2 due to the presence of the ANP post (app. 

br. at 4, 13-14, 18). AISG has the burden of proving the fundamental facts of liability 

and damages. Wilner v. United States, 24 F.3d 1397, 1401 (Fed. Cir. 1994) (en banc), 

accord J.C. Equipment, ASBCA No. 51321, 02-1 BCA ¶ 31,810 at 157,156. AISG 

fails to meet its burden regarding authorization because the Corps had secured a license 

to build the DHQ on site #2. AISG failed to present any evidence of any infirmity in 

the Corps’ fully executed license, much less that it was invalid. Mr. Guffey presumed 

the Corps did not have a license, yet he never asked to see the license the Corps referred 

to or even for an explanation of why the Corps insisted construction could only occur 

on site #2 (tr. 1/292). AISG’s allegations that the Corps procured that license by deceit 

or that the license did not authorize continuous access to the site for three years are 

specious and unsupported. The Corps reasonably relied upon the license it received 

from the Afghan MOI to expect AISG to perform the contract on that site. 

AISG did not prove the ANP or other Afghans prevented AISG from entering 

site #2 to perform the work. The underlying premise of AISG’s RFIs and subsequent 

claim is that opposition by the local residents or even the ANP could have become 

violent (tr. 1/290-91). In its RFIs, AISG proposed the possibility that Afghan residents 

or the ANP would violently object to the work of the contract. Those suggestions 

were no more than supposition based on such an incident that had occurred at another 

site. In contrast, AISG did not encounter physical interference at site #2 (tr. 1/238). 

This is not to say that the location of the project was not a violent dangerous place, but 

there is no evidence that AISG attempted to perform at site #2, that the residents or 

police were asked to cooperate or that AISG employees asked the Afghans to honor 

the prior license much less that attempts by AISG to perform at site #2 were rebutted 

by the Afghans. AISG’s RFIs reflect this as well. The RFIs did not state that AISG

could not build the DHQ on site #2. Rather, each RFI insisted that site #3 was more 

acceptable to the Afghans. The evidence supports a conclusion that the local Afghans

may simply have favored the construction plan they were presented by AISG’s Afghan 

subcontractor (R4, tabs 288, 343 at 44; tr. 1/280-82, 292). In any event, the RFIs did 
12

not say, and AISG did not prove, that it could not access site #2. The Corps is not 

liable for additional costs AISG may have incurred waiting for the site it preferred.

Alternatively, AISG argues that the Corps admitted that changing to site #3 was 

necessary because construction on site #2 conflicted with the existing structure (app. 

br. at 2, 23-24; R4, tab 593 at 1-2). That argument is wrong for two reasons. First, the

documents that reflect the Corps’ adoption of site #3 do not support AISG’s argument. 

There was no dispute that site #3 was better suited for construction (app. supp. R4, 

tab 48 at 2). As described by AISG employees, that site was more level without the 

substantial rock outcroppings present on site #2. The Corps had not opposed changing 

the work site from site #2 to site #3 based on its suitability for the project. The Corps’ 

denial of RFIs 1 and 2 was based upon the government’s limited authority to build the 

DHQ within the coordinates obtained in the license for construction from the Afghan 

MOI. Prior to the new certification obtained by the village residents, neither the Corps 

nor AISG had permission for construction on site #3. The Corps chose to rely upon 

that newly created agreement with the Afghan MOI. The Corps’ adoption of site #3 

based on the new Afghan license provided by AISG did not invalidate the prior license 

or undermine the reasonableness of the Corps’ reliance on the earlier license. 

Second, although the evidence is not clear on when or how the ANP prevented 

access to site #2, or whether they did as AISG acknowledges, the presence of the ANP

post was an obvious obstruction to construction on that site. It was evident in the RFP, 

the contract documents and during AISG’s pre-bid site inspection. It was equally 

obvious that the ANP could possibly refuse to move from its post on that site. AISG

did not inquire with the CO whether the ANP post would affect the availability of 

site #2. To the contrary, AISG submitted a proposal for Modification No. 2 accepting 

all the terms and conditions of the RFP. AISG specifically demonstrated in that 

proposal that it could perform the contract on that site. AISG specifically addressed 

the obstacles present on site #2. And AISG signed Modification No. 2 with that 

knowledge. There was no ambiguity regarding the site or the representation made by 

the government. If there were such a patent ambiguity, AISG would have had a duty 

to inquire about it. Rather than ask the CO about those obstacles, AISG relied on its 

assumption, that the Corps would remove the ANP occupants. Having failed to make 

such an inquiry, AISG cannot now recover additional costs caused by that obstacle. 

B. The ANP post was not a differing site condition.

AISG argues that continued occupation of the ANP checkpoint combined with 

the failure of the Corps to obtain permission from the village to tear down its wall 

constituted a differing site condition (app. br. at 32-34). It also argues, that by 

inclusion of site #2 in Modification No. 2 the Corps warranted access to that site (id. at

30). AISG is unable to support either argument. A differing site condition is a 

physical condition at the site that differs materially from the conditions indicated in the 
13

contract or an unknown condition at the site of an unusual nature which differs 

materially from those ordinarily encountered in the type of work of the contract. C.H. 

Hyperbarics, Inc., ASBCA No. 49375 et al., 04-1 BCA ¶ 32,568 at 161,143-144

(citing G&P Construction Company, Inc., ASBCA No. 49524, 98-1 BCA ¶ 29,457 

at 146,226-227). AISG provided no evidence by testimony or documents that 

established when or how it was barred entry to site #2. Even assuming it was 

prevented from entering site #2, it cannot recover because it has not demonstrated that 

the presence of the ANP or the villagers constituted physical conditions that it could 

not anticipate from the terms of the contract, at the time of bidding. Id. 

Moreover, the village wall did not interfere with AISG since it was agreed 

before Modification No. 2 that it would not take that wall down. AISG made an 

unwarranted assumption that the Corps would remove the ANP force. AISG’s 

contentions thus fail for lack of proof. Overstreet Electric Company, Inc., ASBCA 

No. 51654 et al., 00-1 BCA ¶ 30,588 at 151,056-57; Fred A. Arnold, Inc., ASBCA 

Nos. 20150, 22154, 84-3 BCA ¶ 17,624 at 87,848. Furthermore, having satisfied its

obligation to provide access to site #2 when it obtained a valid license to that site, the 

government owed AISG no further duty. 

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. IAP Worldwide Services, Inc., ASBCA, No. 59397 et al., 17-1 BCA 

¶ 36,763 at 179,161 (quoting Oman-Fischbach Int’l (JV) v. Pirie, 276 F.3d 1380, 1385 

(Fed. Cir. 2002) (citation omitted)). The government is not liable for acts of the ANP 

unless it assumed that risk in unmistakable terms. IAP Worldwide at 179,161. There 

is nothing in the contract which shifted the risk of increased costs caused by the ANP’s 

occupation of the checkpoint on site #2 from AISG to the government.

C. The government did not cause AISG’s delay.

AISG claims the government is responsible for the direct costs it incurred 

during the eight month delay between May and December 2012, while waiting for the 

modification to the contract site from site #2 to site #3 (app. br. at 31, 35). AISG’s 

arguments are incorrect because the government did not cause contract delay during 

that period. First, as discussed above, the Corps was not obligated to issue a change to 

the construction site because AISG’s proposal promised the contract was performable 

as written. AISG repeatedly confirmed that it could build the DHQ on site #2 

(tr. 1/238, 284-87, 306, 4/309; R4, tabs 114, 417 at 2). Second, the government did 

not prevent AISG from performing contract work during that time. In fact, AISG 

could have begun the required preconstruction submittals in October 2011 (R4, tab 4). 

Accordingly, AISG was not constructively suspended by the government’s refusal to 

modify the construction site. P.R. Burke Corp. v. United States, 277 F.3d 1346, 

1359-61 (Fed. Cir. 2002). Finally, AISG recognized that it assumed the risk of the 
14

costs it incurred resulting from the mobilization of its subcontractors prior to 

submission of the preconstruction submittals (tr. 2/281-82; R4, tab 44). 

CONCLUSION

The appeal is denied. Appellant has not proven facts sufficient to establish 

entitlement to recover its costs. 

Dated: March 30, 2020

 DONALD E. KINNER

Administrative Judge

Armed Services Board

of Contract Appeals

I concur I concur

RICHARD SHACKLEFORD

Administrative Judge

Acting Chairman

Armed Services Board

of Contract Appeals

J. REID PROUTY

Administrative Judge

Vice Chairman

Armed Services Board

of Contract Appeals
15

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. 58696, 59151, Appeals of 

AISG, Inc., rendered in conformance with the Board’s Charter.

Dated: March 31, 2020

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals