ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeals of -- ) 

) 

Terraseis Trading Limited ) 

) 

Under Contract No. W91B4N-12-C-5045 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA Nos. 58731, 58732 

Brian Andrews, Esq. 

Raleigh, NC 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

Robert B. Neill, Esq. 

CPT Harry M. Parent, III, JA 

Trial Attorneys 

OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 

INTRODUCTION 

Appellant, Terraseis Trading Limited {Terraseis), and the government 

contracted for Terraseis to provide seismic data collection and processing in 

Afghanistan. Terraseis did not meet the data collection delivery date, and the 

government terminated the contract for cause. Terraseis had also presented to the 

contracting officer a certified claim for alleged delay costs, which the contracting 

officer denied. In ASBCA No. 58731, Terraseis appeals from the denial of its 

monetary claim, contending that the government owes it compensation because it 

delayed in delivering Terraseis's equipment. In ASBCA No. 58732, Terraseis appeals 

from the termination of the contract, contending that ( 1) a lack of worksite security 

excuses its failure to meet the delivery date, and (2) the government waived'the 

delivery date. Only entitlement is before us. The parties submitted the appeal on the 

record pursuant to Rule 11. 

FINDINGS OF FACT 

On 8 August 2012, Terraseis and the Bagram Regional Contracting Center on 

behalf of the Task Force for Business and Stability Operations (TFBSO) of the 

Department of Defense (government) entered into Contract No. W91B4N-12-C-5045, 

in the estimated amount of$9,000,000 for the delivery by Terraseis of seismic data 

acquisition and other services in Afghanistan (R4, tab 1 at 1-2, 5). The project was 

designed to support efforts to attract potential investment in the hydrocarbon sector of 

the Afghan economy (R4, tab 1 at 33). Phase I of contract performance consisted of 
data collection; Phase II consisted of data processing (R4, tab 1 at 5). In order to 

perform Phase I, Terraseis would have to survey, then line cut (that is, clear 

obstructions and level, with bulldozers), then lay out sensors, and, finally, record data 

(app. supp. R4, tab 274 at 2, ~ 2.5). To record, hydraulic trucks called "vibrators" 

(also referred to as ''vibes") would vibrate the ground (R4, tab 104 at 1; app. supp. R4, 

tab 274 at 1-2, ~~ 2.4, 2.5). Terraseis planned to conduct all four activities roughly 

simultaneously, moving from area to area in a "security bubble," to minimize risk 

(app. supp. R4, tab 274 at 3, ~ 3.5). Terraseis planned to begin recording five days 

after beginning topographical survey and line clearance operations (R4, tab 6 

at 20-21). 

The contract provides that: 

Contract performance may require work in dangerous or 

austere conditions. Except as otherwise provided in the 

contract, the Contractor accepts the risks associated with 

required work performance in such operations. 

(R4, tab 1 at 14 (252.225-7995(b )(2), CONTRACTOR PERSONNEL PERFORMING IN THE 

UNITED STA TES CENTRAL COMMAND AREA OF RESPONSIBILITY (DEVIATION 

2011-00004) (APR 2011))), and that: 

Unless specified elsewhere in the contract, the Contractor 

is responsible for all logistical and security support 

required for contractor personnel engaged in this contract. 

(Id. at 15 (252.225-7995(c)) 

In addition, the contract incorporated by reference FAR clause 52.212-4(f), 

CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS (FEB 2012), which 

provides that: 

The Contractor shall be liable for default unless 

nonperformance is caused by an occurrence beyond the 

reasonable control of the Contractor and without its fault or 

negligence such as, acts of God or the public enemy, acts 

of the Government in either its sovereign or contractual 

capacity, fires, floods, epidemics, quarantine restrictions, 

strikes, unusually severe weather, and delays of common 

carriers. 

(R4, tab 1 at 9) The contract also provides: 

2 
Private security: If any contractor and its subcontractors at 

all tiers require arming or private security under this 

contract they shall agree to obey all laws, regulations, 

orders, and directives applicable to the use of private 

security personnel in Iraq and Afghanistan.... Contractors 

will ensure that all employees ... armed under the provisions 

of this contract, comply with the contents of clause 

952.225-0001, Arming Requirements and Procedures for 

Personal Security Services Contractors and for Requests 

for Personal Protection. 

(R4, tab 1at27-28 (clause 952.225-0015(d), HOST NATION CONTRACTOR AND 

SUBCONTRACTING REQUIREMENTS (AUG 2011)) 

During the contract's solicitation period, the government agreed to a proposal 

by Terraseis that the government provide transportation support to and from the 

"seismic line" (R4, tab 5 at 1 ). After contract award, the parties attended a 15 August 

2012 kick-off meeting attended by the contracting officer (R4, tab 9 at 1). The 

minutes of that meeting reflect that the government would arrange for the 

transportation ofTerraseis's equipment beginning 10 days after the submission of 

certain "paperwork," after which it would take 5-7 days to drive to Camp Stone, the 

delivery point (id.). On 23 August 2012, the government submitted that paperwork 

(R4, tab 10 at 1), making the latest, projected delivery date 9 September 2012, 17 days 

later. On 28 August 2012, the government received word from its transportation 

contractor that the equipment would be picked up on 4 September 2012, and that the 

expected delivery date was 11 September 2012 (R4, tab 11 at 1-2). 

By 4 September 2012, Terraseis had contracted with the Afghan government to 

provide security for the project through a 100-person Afghan Public Protection Force 

(APPF) (R4, tab 16 at 1). In its 9 July 2012 proposal for the contract, Terraseis 

proposed that it would contract for an APPF, estimating that 200 APPF guards would 

be needed "to secure the project area day and night" (R4, tab 6 at 1, 9). Terraseis 

proposed employing a security bubble consisting of a perimeter of security forces 

deployed up to 600 meters around its technical crew "to prevent any direct sniper 

attack on the crew" (id.). Terraseis also proposed patrols to deter ambushes and the 

planting of improvised explosive devices (IEDs) (id. at 10). 1 On 26 August 2012, 

Terraseis began interviewing local personnel as candidates for the APPF (R4, tab 11 

at 3). By 10 September 2012, Terraseis had interviewed 85 guards (R4, tab 23 at 1). 

On 9 September 2012, Terraseis and the APPF entered into a contract for guards for 

the project (id., R4, tab 30 at 1 ). 

1 In its proposal, Terraseis used the term "EID" to refer to "IED" (R4, tab 6 at 10). 

3 
On 25 September 2012, Terraseis informed the government that it would like to 

begin surveying and clearing on 27 September 2012 (R4, tab 62 at 1). On 

27 September 2012, the government delivered the first ofTerraseis's equipment (see 

R4, tab 67 at 1). However, Terraseis did not begin surveying and clearing until 

4 October 2012, because of a delay through 3 October 2012 in licensing weapons for 

security personnel (R4, tab 73 at 1, tab 75 at 1; app. supp. R4, tab 477 at 3). Terraseis 

began the work with 100 APPF personnel, and was able to work for 11 days before 

coming under attack (see supp. R4, tab 405 at 1636). Then, on 15 October 2012, 

Terraseis's crew was attacked by small arms and mortar fire, causing it to pull back to 

its base camp (app. supp. R4, tab 477 at 2-3). 2 In response, Terraseis on 16 October 

2012 suspended field operations and turned to training the APPF, an effort that 

continued through 5 November 2012 (see app. supp. R4, tab 477 at 3). On 18 October 

2012, the last ofTerraseis's equipment, including the vibes, was delivered to Camp 

Stone (R4, tab 104 at 1). 

On 4 November 2012, 60 Afghan National Civil Order Police (AN COP) troops 

arrived at the project site to help protect Terraseis's operations (see app. supp. R4, 

tab 477 at 4). On 5 November 2012, Terraseis's crew was attacked by machine gun 

fire while setting up a temporary base (R4, tab 139, at 5). No injuries or damage to 

equipment were reported (id.). On 6 November 2012, the crew resumed field 

operations, and was attacked numerous times by machine gun fire, small arms fire, and 

rocket-propelled grenades (R4, tab 139 at 6; app. supp. R4, tab 477 at 4). No injuries 

or damage were reported, but work stopped on each occasion until the attack was over 

(id.). On 7 November 2012, the crew was attacked twice, once for 30 minutes, and the 

other for three hours (R4, tab 139 at 7-8). The ANCOP troops ran low on ammunition, 

and withdrew from the project area (id. at 7). No injuries were reported, but there was 

minor damage to AN COP vehicles and production time was lost (id.). 

On 12 November 2012, an additional 40 ANCOP troops arrived to help protect 

Terraseis's operations (app. supp. R4, tab 477 at 5). On 13 November 2012, work 

resumed (id.). On 15 November 2012, in three separate incidents, (1) the crew was 

ambushed and attacked by rocket and machine gun fire for two hours, causing minor 

damage to AN COP vehicles and loss of production time; (2) an IED destroyed a 

2 Although elsewhere in the record we find evidence that the first attacks (by small 

arms, mortars, and rockets) on Terraseis's crew occurred on 16 October 2012 

(R4, tab 139 at 3-4), we view the statements in Terraseis's reply briefthat 

"[t]hen, on October 15, the crew received small arms fire and two mortars 

landed close to where the bulldozer crew was working" (app. reply br. at 6, 

~ 14), and that "[t]here was a concurrent excusable delay of three days from 

when the crew was attacked on October 15 to when the vibes arrived on 

October 18" (id. at 15), as judicial admissions that the crew was first attacked 

on 15 October 2012. 

4 
Terraseis vehicle, killing the driver and seriously injuring two APPF guards; and 

(3) small arms fire was directed at a temporary base, causing no injuries or other 

damage (R4, tab 139 at 9-11). On 16 November 2012, (1) small arms fire was directed 

at a temporary case, causing ANCOP to run low on ammunition and withdraw from 

the project area, resulting in the withdrawal of Terraseis's crew and loss of production 

time; and (2) Terraseis's crew came under small arms fire during its withdrawal from 

the project area (id. at 12-13). 

On or about 16 November 2012, Terraseis suspended its operations for security 

reasons (app. supp. R4, tab 274 at 4, ~ 4.5). By 18 November 2012, Terraseis's APPF 

force was down to 41 persons, due to guards quitting after the IED incident (app. supp. 

R4, tab 477 at 6). On 19 October 2012, the Afghan government pledged another 

100 Afghan security forces, and Terraseis asked for an additional 58 security 

personnel (app. supp. R4, tab 477 at 6). The Afghan government indicated that it 

would look into providing an additional 50 such personnel (id.). On 26 November 

2012, Terraseis indicated that it would resume field operations on 6 December 2012, 

but never did resume those operations (see app. supp. R4, tab 477 at 6-7). By 

10 December 2012, Terraseis became embroiled in a payment dispute with a supplier 

who by that date seized Terraseis's equipment, holding it through at least 5 March 

2013 (R4, tab 153 at 1; supp. R4, tab 311at1-2, tab 312 at 1, tab 314 at 1, tab 315 at 3, 

tab 316at1, tab 317 at 1-2, tab 320at1, tab 322 at 1, tab 323 at 1, tab 324 at 1-3). 

On 29 November 2012, Terraseis began demobilizing its workforce (app. supp. 

R4, tab 477 at 6). On 2 December 2012, Terraseis notified the government that it had 

suspended field operations and demobilized most of its field staff "due to the high 

costs to Terraseis" of (1) the delayed equipment delivery, (2) repeated attacks on its 

field operations, and (3) the "delayed mobilization of sufficient government forces to 

secure the area and permit the recommencement of field activities" (R4, tab 113 at 1 ). 

Terraseis requested the negotiation of "revised payment terms, which would allow us 

to resume operations as soon as possible and ensure timely payment of local 

sub-contractors and vendors" (id.). On 20 December 2012, Terraseis signed 

Modification No. P00002 (the government signed on 12 January 2013), which 

extended the delivery date for Phase I to 9 March 2013, and the delivery date for Phase 

II to 23 March 2013 (R4, tab 127 at 1-3). The modification settled all Terraseis's 

claims for additional time due to government-caused delay "incurred as of the date of 

this modification" (id. at 1). The modification reserved any claim that Terraseis might 

have for "possible incurred costs for which the contractor might file a claim at a later 

date" (id.). On 22 December 2012, Terraseis presented to the contracting officer a 

certified claim for $1,400, 146 in costs allegedly arising from a 3 7-day delay in the 

government's delivery of the equipment (R4, tab 121at1-2). On 31December2012, 

Terraseis reduced the claim amount to $1,348,310 (R4, tab 124 at 1). 

5 
Except for some scouting of field conditions in early January 2013 (app. supp. 

R4, tab 477 at 7), Terraseis conducted no field operations in January or February 2013 

(R4, tabs 133, 155). On 7 February 2013, as part of a plan to get Terraseis back to 

work, TFBSO personnel offered to perform a "scouting trip" of the project area with 

Terraseis personnel; TFBSO Director James L. Bullion also informed Terraseis on that 

date that he could "confirm that we will make sure that appropriate supplemental 

security forces will be in place as soon as you are ready to move your crews and 

vehicles into the field" (R4, tab 13 7 at 1, tab 141 at 1 ). In reliance on those statements, 

Terraseis on 11 February 2013 sent three personnel to Afghanistan, where they waited 

for instructions (R4, tab 144 at 1; app. supp. R4, tab 27 5 at 2, ~ 1.12). However, on 

12 February 2013, the contracting officer advised TFBSO not to undertake the 

scouting trip, warning that "if the contract does not say that the [government] will 

provide something, we will not provide it" (R4, tab 141 at 1). On 16 February 2013, 

the contracting officer informed Terraseis that the scouting trip would not take place, 

and that the government would not arrange or help arrange security (app. supp. R4, 

tab 274 at 5, ~ 4.11, tab 275 at 2, ~ 1.13). The contracting officer also informed 

TFBSO that "only the contracting officer has the authority to bind the government" 

(app. supp. R4, tab 273 at 8:21-22). 

On 9 March 2013, Terraseis still had not delivered Phase I (app. br. at 9, ~ 20). 

On 16 March 2013, the contracting officer terminated the contract for cause (R4, 

tab 157 at 1). On 5 May 2013, the contracting officer denied Terraseis's certified 

claim (R4, tab 161at1-2). Terraseis timely filed these appeals on 11June2013. 

DECISION 

ASBCA No. 58731: Is Terraseis entitled to compensation due to equipment delivery delay? 

In ASBCA No. 58731, Terraseis seeks compensation for what it alleges are 

28 days of delay caused by the government not having delivered Terraseis's vibes to 

Camp Stone until 18 October 2012 (app. reply br. at 13-15). We sustain the appeal, in 

part. Prior to contract award, during the solicitation phase, the parties agreed that the 

government would deliver Terraseis' equipment, but did not include in that agreement 

or in the contract that was eventually awarded any schedule for that delivery. "When 

the parties to a bargain sufficiently defined to be a contract have not agreed with 

respect to a term which is essential to a determination of their rights and duties, a term 

which is reasonable in the circumstances is supplied by the court." Pacific Gas & 

Electric Co. v. United States, 536 F.3d 1282, 1289 (Fed. Cir. 2008) (quoting 

RESTATEMENT (SECOND) OF CONTRACTS§ 204); Sundstrand Corp., ASBCA 

No. 51572, 01-1BCA~31,167 at 153,957 (same). Thus where a contract calls for a 

single performance such as the rendering of a service or the delivery of goods, the 

parties are most unlikely to agree explicitly that performance will be rendered within a 

6 
"reasonable time"; but if no time is specified, a term calling for performance within a 

reasonable time is supplied. RESTATEMENT (SECOND) OF CONTRACTS§ 204 cmt. d. 

We find that a delivery schedule is essential to a determination of the parties' 

rights and duties regarding equipment delivery, and supply a term calling for "delivery 

within a reasonable time." We further find that a reasonable time for delivery of the 

equipment is the schedule reflected in the minutes of the kick-off meeting that the 

parties held one week after the contract was awarded: that is, delivery within 17 days 

of the submission by the government of certain paperwork. In so finding we consider 

the contracting officer's attendance at the kick-off meeting, and the absence of any 

evidence in those minutes that anyone at the meeting voiced any objection or caveat to 

that schedule. 

The government submitted the paperwork on 23 August 2012, making the 

equipment due at Camp Stone by 9 September 2012. Although equipment began 

arriving on 27 September 2012, the vibes (the equipment necessary to perform the 

final, recording phase of the data collection work) were not delivered until 18 October 

2012, 39 days later. Terraseis admits to two periods of concurrent delay: (1) a 6-day 

delay due to weapons licensing issues that ended on 3 October 2012, and (2) a 3-day 

delay due to a 15 October 2012 attack on its crew that ended on 18 October 2012 (app. 

reply br. at 15). Although subtracting those 9 days of concurrent delay leaves 30 days 

of potential government-caused delay, Terraseis claims only 28 days of 

government-caused delay, between 11 September 2012 (7 days after the equipment 

was picked up by the government's transportation subcontractor) and 18 October 2012 

(the day the vibes were delivered). 

Because of issues regarding weapons licensing, Terraseis was not ready to 

begin field operations until 3 October 2012, and did not begin those operations 

(initially, surveying and clearing) until 4 October 2012. Consequently, Terraseis is not 

entitled to compensation for any days before 4 October 2012. According to 

Terraseis's plan, it would have performed surveying and clearing activities for 

five days before recording with the vibes; therefore, Terraseis would not have been 

ready to use the vibes until 9 October 2012. Terraseis concedes that "there was a 

concurrent excusable delay of three days from when the crew was attacked on 

October 15 to when the vibes arrived on October 18" (app. reply br. at 15). 

Consequently, we find that the government's delay in delivering Terraseis's vibes 

delayed Terraseis's completion of the contract work by 6 days, from 9 October 2012 

through 14 October 2012. That is, had the government delivered the equipment, 

including the vibes, by 9 September 2012, Terraseis would have been able to record 

from 9 October 2012 through 14 October 2012, the day before the 15 October 2012 

attack resulted in a suspension of operations through 17 October 2012. Therefore, 

Terraseis is entitled to compensation for 6 days of delay, from 9 October 2012 through 

14 October 2012. Although the government contends that Terraseis is not entitled to 

7 
not entitled to any compensation because it concurrently delayed in obtaining the 

security necessary for contract performance (gov't br. at 41), we disagree; APPF 

guards provided security sufficient to allow Terraseis to perform contract work at least 

from 4-14 October 2012. 

Although the government contends that Terraseis has not provided a delay 

analysis (gov't br. at 40), Terraseis has identified periods of government-caused delay 

and concurrent delay. Furthermore, we find that the vibes could have been used 

beginning on 9 October 2012, that they were critical to the completion of the project as 

a whole, and, therefore, that the delay in delivering the vibes delayed the project as a 

whole. See G. Bliudzius Contractors, Inc., ASBCA No. 42366 et al., 93-3 BCA 

~ 26,074 at 129,592-93. Because the government delayed completion of the work by 

six days, Terraseis is entitled to six days of compensated delay. Accordingly, ASBCA 

No. 58731 is sustained to that extent. 

ASBCA No. 58732: Was the termination of the contract for default justified? 

Did Terraseis default? 

A contractor's failure to timely deliver agreed-upon goods establishes a prima 

facie case of default. General lnjectables & Vaccines, Inc. v. Gates, 519 F.3d 1360, 

1363, supplemented on reh 'g, 527 F.3d 1375 (Fed. Cir. 2008). Terraseis did not 

deliver Phase I by 9 March 2013; that failure establishes a prima facie case of default. 

Did the government waive the delivery date? 

Terraseis contends that the government waived the 9 March 2013 delivery date 

by engaging in negotiations in February 2013 to continue the contract when it was 

clear that Terraseis could not meet the 9 March 2013 delivery date, and by promising 

to provide security and a helicopter scouting trip "so that the project could continue" 

(app. br. at 16). We disagree. Where the government elects to permit a delinquent 

contractor to continue performance past a due date, it surrenders its alternative and 

inconsistent right to terminate the contract for default. Empire Energy Management 

Systems, Inc. v. Roche, 362 F.3d 1343, 1354 (Fed. Cir. 2004). To prove such waiver, a 

contractor must show: (1) failure to terminate within a reasonable time after default 

under circumstances indicating forbearance; and (2) reliance by the contractor on the 

failure to terminate and continued performance by him under the contract, with the 

government's knowledge and implied or express consent. Id. at 1354-55. Pre-default 

actions by the government to encourage completion of the work do not waive a 

delivery date. See id. at 1355. 

Here, the government terminated the contract on 16 March 2013, within a week 

of the 9 March 2013 delivery date that Terraseis failed to meet. We find that 

8 
one-week period a reasonable time after default. In addition, Terraseis did not perform 

past a due date; it ceased field operations in November 2012, long before the 9 March 

2013, Phase I delivery date. Furthermore, the representations made by TFBSO 

regarding the scouting trip and arranging security were made in early February 2013, a 

month before the 9 March 2013 default date, 3 and so were pre-default actions to 

encourage Terraseis's completion of the work. Finally, those representations did not 

induce Terraseis to continue performance: Terraseis did not resume field operations 

based upon those representations, it sent three people to Afghanistan to wait for 

instructions. For all these reasons, Terraseis fails to prove that the government waived 

the delivery date. 

Was the default excused? 

A contractor must show that its failure to deliver was excusable. General 

lnjectables, 519 F.3d at 1363. Pursuant to FAR 52.212-4(f), an excusable failure 

occurs when it is caused by an occurrence beyond the reasonable control of the 

contractor and without its fault or negligence. Id. Terraseis contends that its failure to 

meet the delivery date is excused because (I) it was not foreseeable that the Afghan 

government, with which Terraseis contracted for security, did not provide the security 

necessary for the project; and (2) the issuance on 17 August 2010 of a decree by the 

President of Afghanistan had "disbanded all private security companies and essentially 

monopolized all private security under the Afghan government," "foreclos[ing] any 

option for [Terraseis to] hire a different security contractor or to even self-secure" 

(app. br. at 13-14).4 We find that Terraseis's failure to meet the delivery date is not 

excused. 

First, Terraseis entered the contract in 2012, and, therefore, is charged with 

knowledge of the 2010 presidential decree. Second, contractors are bound by the 

unexcused nonperformance of their subcontractors. General Injectables, 527 F.3d 

at 1378. In other words, "[t]he contractor alone is responsible for the deficiencies of 

its suppliers and its subcontractors absent a showing of impossibility." Id. Terraseis 

does not contend, much less demonstrate, that the Afghan government's 

nonperformance was excusable or impossible. Third, the contract (1) states that 

3 Those representations were not made by the contracting officer; indeed, the 

contracting officer disavowed those representations on 16 February 2013, well 

before the 9 March 2013 delivery date. Notably, Terraseis does not contend 

that anyone with authority to bind the United States in contract agreed that the 

government would provide or facilitate the provision of security for the project. 

4 Terraseis provides no record citation for, nor any copy of the decree, and does quote 

its contents; however, the government does not contest Terraseis's 

representation. For purposes of the appeal, we accept Terraseis's contention 

regarding the existence of the decree and its requirements. 

9 
"[c]ontract performance may require work in dangerous ... conditions," (2) provides that 

''the Contractor accepts the risks associated with required work performance in such 

operations," and (3) makes the contractor "responsible for all ... security support 

required for contractor personnel engaged in [the] contract." Under these 

circumstances, Terraseis is responsible for any failure to provide security on the part of 

its subcontractor, the Afghan government, and, therefore, cannot point to lack of 

security as an excuse for failure to meet a delivery date. 

Fourth, we reject Terraseis's unforeseeability argument. Terraseis contends 

that the Afghan government had provided adequate security for two previous seismic 

projects, making its failure to provide adequate security for this project unforeseeable, 

excusing Terraseis's nonperformance (app. br. at 14-15). We disagree. For the 

Afghan government's nonperformance to excuse Terraseis's nonperformance, the 

former must be excusable, not merely inconsistent with past performance. See 

General Injectables, 527 F.3d at 1378. Although Terraseis relies upon HB. Nelson 

Construction Co. v. United States, 87 Ct. Cl. 375 (1938), and Climatic Rainwear Co., 

v. United States, 115 Ct. Cl. 520 (1950), those cases are inapt. In both cases the 

relevant contract language expressly included the concept ofunforeseeability. In H.B. 

Nelson, the contract provided that "the right of the contractor to proceed shall not be 

terminated ... because of any delays in the completion of the work due to unforeseeable 

causes beyond the control and without the fault or negligence of the contractor." 

87 Ct. Cl. at 380 (emphasis added). In Climatic Rainwear, the contract provided that 

"the contractor shall not be charged with liquidated damages or any excess cost when 

the delay in delivery is due to unforeseeable causes beyond the control and without the 

fault or negligence of the contractor." 115 Ct. Cl. at 533 (emphasis added). Notably, 

the comparable contract provision here, FAR clause 52.212-4( t), omits any express 

reference to unforeseeability: "[t]he Contractor shall be liable for default unless 

nonperformance is caused by an occurrence beyond the reasonable control of the 

Contractor and without its fault or negligence." That at least suggests that 

foreseeability is not a factor in determining whether contractor performance is 

excused. 

Even if foreseeability is a factor, we find this case distinct from HB. Nelson 

and Climatic Rainwear on that point. In H.B. Nelson, a railroad damaged steel trusses 

in the course of transporting them; the court found that the resulting delay to the 

contractor's construction work was unforeseeable because "[o]bviously neither the 

contractor nor the [government] would under the facts of this case have anticipated or 

given thought to what did happen to this steel." 87 Ct. Cl. at 380-81, 387-89. In 

Climatic Rainwear, raincoats leaked at the seams because of a subcontractor's 

"strapping," even after government tests indicated that the problem had been solved. 

115 Ct. Cl. at 535-36. The court found that the resulting delays in raincoat deliveries 

were excusable because "[t]he failure of the strapping was clearly unforeseeable on the 

part of everyone." Id. at 567-68. In the two cases, essentially, the court found that, 

10 
under the circumstances, once the trusses were handed over to the railroad and the 

raincoats passed the government's tests, there was no reason for anyone to think that 

anything would go wrong. 5 

This, however, is a much different situation. Even before the contract was 

awarded, it was understood that security would be a difficult and constant challenge. 

Indeed, Terraseis foresaw the threat, and proposed specific measures to address it. 

Within a week of the start of field operations, the threat presented itself and never fully 

abated. Security was always a concern; consequently, it was always foreseeable that 

something might go wrong and security efforts might not succeed, either because the 

challenge was too great or because Terraseis would be unable to persuade the Afghan 

government to provide the necessary level of security. 6 And it is not as though 

Terraseis encountered a different condition than it expected; rather, Terraseis 

encountered the same threat that it had planned to confront when it entered the 

contract. 

Fifth, with respect to impossibility, Terraseis contends that contract 

performance was impossible both due to the lack of adequate security (app. hr. at 12), 

and because contract clause 952.225-0001 precluded the offensive military action that 

the TFBSO was eventually decided was required after the death of an APPF soldier 

(app. reply hr. at 15-16). We reject those contentions. Terraseis performed contract 

work during the period 4-14 October 2012, and on some days thereafter (even after a 

driver was killed by an IED that destroyed his vehicle), demonstrating that it was 

possible to perform the contract. With respect to clause 952.225-0001 (the language 

of which Terraseis does not recite), that clause addresses private security.7 By 

contrast, Terraseis's theory is that the Afghan government failed to provide adequate 

security. We do not view the Afghan government as a private security entity, such that 

any prohibition in clause 952.225-0001 against offensive military action would 

prevent the Afghan government from securing the project area. 

Sixth, Terraseis contends that its default is excused because the Afghan 

government's actions constitute sovereign acts. Although the FAR does not define the 

term "the Government," see FAR Part 2, Definitions of Words and Terms, we have no 

difficulty interpreting that term as limited to appellant's contracting partner; that is, the 

Government of the United States, as opposed to some other government, such as the 

Afghan government. Cf Pyramid Construction & Engineering Corp., ASBCA 

5 Delays caused by common carriers like the railroad in HB. Nelson are expressly 

excusable under FAR clause 52.212-4(±). 

6 Terraseis played at least some part in providing security beyond contracting for it: 

Terraseis interviewed candidates for the APPF, identifying 85 candidates. 

7 Clause 952.225-001 is not set forth in the contract, nor is it incorporated into the 

contract. However, it is referenced in clause 952.225-0015( d). 

11 
government did not entitle contractor to equitable adjustment in price of contract with 

the United States government because the increase was the sovereign act of a 

government not a party to the contract). Indeed, Terraseis cites no authority in support 

of any broader interpretation. Moreover, the contract elsewhere uses the term ''the 

Government" to refer implicitly to the Government of the United States; for example, 

referring to contract line item number (CLIN) 0002, the contract provides that "[t]he 

contractor may invoice the Government up to two times for payment against this 

CLIN" (R4, tab 1 at 5) (emphasis added), indicating that in context, the term "the 

Government" means the entity obligated to pay Terraseis for services provided; here, 

the Government of the United States. The contract also implicitly distinguishes 

between the Government of the United States and at least some other government; its 

contract incorporates by reference DF ARS clause 252.209-7004, SUBCONTRACTING 

WITH FIRMS THAT ARE OWNED OR CONTROLLED BY GOVERNMENT OF A TERRORIST 

COUNTRY (DEC 2006) (R4, tab 1 at 9), which expressly distinguishes between ''the 

Government" and "the government of a terrorist country." Finally, if any further 

explanation of the term "the Government" is needed, the contracting officer signed the 

contract on behalf of the "United States of America" (R4, tab 1 at 1 ). Consequently, 

within the meaning of FAR clause 52.212-4(f), only the sovereign acts of "the 

Government," that is, the Government of the United States, might excuse a 

contractor's failure to perform. 

Finally, Terraseis was concurrently delayed from at least 10 December 2012 

through at least 5 March 2013 by the seizure of its equipment by a supplier who 

claimed that Terraseis owed him money. Terraseis points to no evidence that the 

supplier released the equipment prior to the termination of the contract. Therefore, we 

infer and find that the equipment was still held on 9 March 2013, the delivery date that 

Terraseis failed to meet. Consequently, we find that a lack of equipment was an 

independent, concurrent, and unexcused cause ofTerraseis's failure to meet the 

9 March 2013 delivery date. 

Because (1) Terraseis defaulted on a delivery date, (2) the government did not 

waive the delivery date, and (3) the default was not excused, the termination of the 

contract for default was justified. Accordingly, ASBCA No. 58732 is denied. 

12 
CONCLUSION 

ASBCA No. 58731 is sustained in part and is remanded to the parties to resolve 

quantum. ASBCA No. 58732 is denied. 

Dated: 19 November 2015 

I concur 

/-MARK 

~M~ N. STEMPLE 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

------- / /~ __ /?~ ~CILMA~ Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

ifV\ 

RICHARD SHACKLEFORD 

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 Nos. 58731, 58732, Appeals of 

Terraseis Trading Limited, rendered in conformance with the Board's Charter. 

Dated: 

13 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals