ARMED SERVICES BOARD OF CONTRACTAPPEALS

Appeals of

-- ) ) Terraseis Trading Limited ) ) Under ContractNo. W91B4N-12-C-5045 )

APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA Nos. 58731, 58732

BrianAndrews, Esq.

Raleigh, NC

Raymond M. Saunders, Esq.

Army ChiefTrial Attorney Robert B. Neill, Esq. CPTHarry M. Parent, III, JA

Trial Attorneys

OPINION BYADMINISTRATIVE JUDGE MCILMAIL

INTRODUCTION

Appellant, Terraseis TradingLimited {Terraseis), and the government contracted for Terraseis to provide seismic data collection and processing in Afghanistan. Terraseis did not meetthe 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. InASBCANo. 58731, Terraseis appeals from the denial ofits monetary claim, contending thatthe government owes it compensationbecause it delayed in delivering Terraseis's equipment. InASBCA No. 58732, Terraseis appeals from the termination ofthe contract, contending that (1) a lack ofworksite security

excuses its failure to meet the delivery date, and (2) the government waived'the delivery date. Only entitlement is before us. Theparties submitted the appeal on the recordpursuant to Rule 11.

FINDINGS OF FACT

On 8August 2012, Terraseis and the Bagram Regional Contracting Center on behalfofthe TaskForce for Business and Stability Operations (TFBSO) ofthe Department ofDefense (government) entered into ContractNo. W91B4N-12-C-5045, in the estimated amount of$9,000,000 for the delivery by Terraseis ofseismic data acquisition and other services in Afghanistan (R4, tab 1 at 1-2, 5). The project was designedto support efforts to attractpotential investment inthe hydrocarbon sector of the Afghan economy (R4, tab 1 at 33). Phase I ofcontractperformance consisted ofdata collection; Phase II consisted ofdataprocessing (R4, tab 1 at 5). In orderto performPhase I, Terraseis wouldhave 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 plannedto conduct all four activities roughly simultaneously, moving from areato area in a "securitybubble," to minimize risk (app. supp. R4, tab 274 at 3,**~** 3.5). Terraseis plannedto begin recording five days after beginning topographical survey and line clearance operations (R4, tab 6
at20-21).

The contractprovides that:

Contractperformance may require work in dangerous or austere conditions. Except as otherwiseprovided in the contract, the Contractor accepts the risks associated with required workperformance in such operations.

(R4, tab 1at 14 (252.225-7995(b)(2), CONTRACTORPERSONNEL PERFORMING IN THE UNITED STATES CENTRAL COMMAND AREA OF RESPONSIBILITY (DEVIATION 2011-00004)(APR2011))), and that:

Unless specified elsewhere in the contract, the Contractor is responsible for all logistical and security support required for contractorpersonnel engaged inthis contract.

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

In addition, the contract incorporated by reference FARclause 52.212-4(f), CONTRACT TERMS AND CONDITIONS-COMMERCIAL ITEMS (FEB 2012), which providesthat:

The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyondthe reasonable control ofthe Contractor and without its fault or negligence such as, acts ofGod orthe public enemy, acts ofthe Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays ofcommon carriers.

(R4, tab 1 at9) The contract also provides:

2Private security: Ifany contractor and its subcontractors at all tiers require arming orprivate security underthis
contractthey shall agree to obey all laws, regulations, orders, and directives applicable to the use ofprivate security personnel in Iraq and Afghanistan.... Contractors will ensure that all employees

...armed under the provisions ofthis contract, comply with the contents ofclause 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), HOSTNATION CONTRACTORAND SUBCONTRACTING REQUIREMENTS (AUG 2011))

During the contract's solicitation period, the government agreedto aproposal by Terraseis thatthe governmentprovidetransportation supportto and from the "seismic line" (R4, tab 5 at 1 ). After contract award, the parties attended a 15 August 2012 kick-offmeeting attended bythe contracting officer (R4, tab 9 at 1). The minutes ofthat meeting reflectthatthe government would arrange for the transportation ofTerraseis's equipmentbeginning 10 days after the submission of certain "paperwork," after which it would take 5-7 days to drive to Camp Stone, the deliverypoint (id.). On23 August 2012, the government submitted thatpaperwork (R4, tab 10 at 1), makingthe latest, projected delivery date 9 September 2012, 17 days later. On 28 August 2012, the government received word from its transportation
contractorthatthe equipment wouldbepicked 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 projectthrough a 100-personAfghan 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, estimatingthat 200 APPF guards would be needed "to secure theproject area day and night" (R4, tab 6 at 1, 9). Terraseis proposed employing a securitybubble consisting ofa perimeter ofsecurity forces deployed up to 600 meters around its technical crew "toprevent any direct sniper attack onthe crew" (id.). Terraseis also proposedpatrols to deter ambushes and the planting ofimprovised 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 referto "IED" (R4, tab 6 at 10).

3On 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 notbegin surveying and clearing until 4 October 2012, because ofa 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 beganthe 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 backto its base camp (app. supp. R4, tab 477 at 2-3). 2 Inresponse, Terraseis on 16 October 2012 suspended field operations and turned to trainingthe APPF, an effort that continuedthrough 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).

On4 November2012, 60 AfghanNational Civil Order Police (ANCOP) 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 werereported (id.). On 6 November 2012, the crewresumed 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 werereported, but work stopped on each occasionuntil 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). TheANCOP troops ran low on ammunition, and withdrew from theproject area (id. at 7). No injuries were reported, butthere was minor damage to ANCOP vehicles and productiontime 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 ANCOP vehicles and loss ofproductiontime; (2) an IED destroyed a

2 Although elsewhere in the record we find evidence thatthe first attacks (by small
arms, mortars, and rockets) on Terraseis's crew occurred on 16 October2012 (R4, tab 139 at 3-4), we view the statements in Terraseis's reply briefthat "[t]hen, on October 15, the crewreceived 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 ofthree days from when the crew was attacked on October 15 to when the vibes arrived on October 18" (id. at 15), asjudicial admissions that the crew was first attacked

on 15 October 2012.

4Terraseis vehicle, killingthe 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 ofTerraseis's crew and loss ofproduction 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 governmentpledged 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 suchpersonnel (id.). On 26 November 2012, Terraseis indicatedthat it wouldresume field operations on 6 December 2012, butnever 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 bythat 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).

On29 November2012, 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 ofits field staff"dueto the high costs to Terraseis" of(1) the delayed equipment delivery, (2) repeated attacks on its field operations, and (3) the "delayed mobilization ofsufficient government forces to

secure the area andpermit the recommencement offield activities" (R4, tab 113 at 1 ). Terraseis requested the negotiation of"revisedpaymentterms, which would allow us to resume operations as soon as possible and ensure timely payment oflocal sub-contractors and vendors" (id.). On 20 December 2012, Terraseis signed ModificationNo. 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 ofthe 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.). On22 December 2012, Terraseis presentedto the contracting officer a certified claim for $1,400,146 in costs allegedly arising from a 37-day delay in the government's delivery ofthe equipment (R4, tab 121at1-2). On 31December2012, Terraseis reduced the claim amount to $1,348,310 (R4, tab 124 at 1).



### 5Except for some scouting offield conditions in early January 2013 (app. supp. R4, tab 477 at 7), Terraseis conducted no field operations in January orFebruary 2013 (R4, tabs 133, 155). On 7 February 2013, as part ofa plan to get Terraseis backto work, TFBSOpersonnel offeredto perform a "scouting trip" ofthe project area with Terraseis personnel; TFBSO DirectorJames L. Bullion also informed Terraseis on that date that he could "confirmthatwe 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 137 at 1, tab 141 at 1 ). In reliance on those statements, Terraseis on 11 February 2013 sent three personnelto Afghanistan, where they waited for instructions (R4, tab 144 at 1; app. supp. R4, tab 275 at 2,**~** 1.12). However, on 12 February 2013, the contracting officer advised TFBSO notto undertake the scouting trip, warning that "ifthe contract does not say thatthe [government] will provide something, we will notprovide 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 governmentwould not arrange orhelp arrange security (app. supp. R4, tab 274 at 5,**~** 4.11, tab 275 at 2,**~** 1.13). The contracting officer also informed TFBSO that "onlythe contracting officerhas the authority to bindthe 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 officerterminatedthe 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 entitledto compensation due to equipmentdelivery delay?

In ASBCANo. 58731, Terraseis seeks compensation for what it alleges are 28 days ofdelay causedbythe governmentnot having delivered Terraseis's vibes to Camp Stone until 18 October 2012 (app. reply br. at 13-15). We sustain the appeal, in part. Priorto contract award, during the solicitationphase, the parties agreed thatthe government would deliverTerraseis' equipment, but did not include in that agreement

or inthe contractthat was eventually awarded any schedule for that delivery. "When the parties to a bargain sufficiently definedto be a contracthave not agreed with respectto a termwhich is essential to a determination oftheirrights and duties, a term which is reasonable inthe circumstances is supplied by the court." Pacific Gas & Electric Co. v. UnitedStates, 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 ofa service or the delivery ofgoods, the parties are most unlikely to agree explicitly thatperformance will berendered within a

6"reasonabletime"; but ifno 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 ofthe 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 ofthe equipment is the schedule reflected in the minutes ofthe kick-offmeeting that the parties held one week after the contractwas awarded: that is, delivery within 17 days ofthe submissionbythe government ofcertainpaperwork. In so finding we consider the contracting officer's attendance at the kick-offmeeting, and the absence ofany evidence in those minutes that anyone at the meeting voiced any objection or caveatto that schedule.

The government submittedthepaperwork on 23 August 2012, making the equipment due at Camp Stone by 9 September 2012. Although equipmentbegan arriving on 27 September2012, the vibes (the equipment necessary to performthe final, recordingphase ofthe data collection work) were not delivered until 18 October 2012, 39 days later. Terraseis admits to twoperiods ofconcurrent 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 crewthat ended on 18 October 2012 (app. reply br. at 15). Although subtractingthose 9 days ofconcurrent delay leaves 30 days ofpotential government-caused delay, Terraseis claims only 28 days of government-caused delay, between 11 September2012 (7 days afterthe equipment

was picked up bythe government's transportation subcontractor) and 18 October 2012 (the day the vibes were delivered).

Because ofissues regarding weapons licensing, Terraseis was notready to begin field operations until 3 October 2012, and did not beginthose operations (initially, surveying and clearing) until 4 October 2012. Consequently, Terraseis is not entitledto compensation for any days before 4 October 2012. According to Terraseis'splan, it wouldhave performed surveying and clearing activities for five days beforerecordingwiththe vibes; therefore, Terraseis would nothave been ready to use the vibes until 9 October 2012. Terraseis concedes that "there was a concurrent excusable delay ofthree days from whenthe crewwas attacked on October 15 to when the vibes arrived on October 18" (app. reply br. at 15). Consequently, we find thatthe government's delay in delivering Terraseis's vibes delayed Terraseis's completion ofthe contract workby 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 wouldhave been able to record from 9 October2012 through 14 October 2012, the day before the 15 October 2012 attackresulted in a suspension ofoperations through 17 October 2012. Therefore, Terraseis is entitledto compensation for 6 days ofdelay, from 9 October 2012 through 14 October 2012. Althoughthe government contends that Terraseis is not entitled to

7not entitled to any compensation because it concurrently delayed in obtaining the security necessary for contractperformance (gov'tbr. at 41), we disagree; APPF guardsprovided security sufficientto allow Terraseis toperform contract work at least from 4-14 October 2012.

Although the government contends that Terraseis has notprovided a delay analysis (gov'tbr. at 40), Terraseis has identified periods ofgovernment-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 ofthe project as
a whole, and, therefore, that the delay in delivering the vibes delayedthe project as a whole. See G. Bliudzius Contractors, Inc., ASBCA No. 42366 etal., 93-3 BCA**~** 26,074 at 129,592-93. Becausethe government delayed completion ofthe work by six days, Terraseis is entitled to six days ofcompensated delay. Accordingly, ASBCA No. 58731 is sustained to that extent.

ASBCANo. 58732: Was the termination of the contract for defaultjustified?

Did Terraseis default?

A contractor's failure to timely deliver agreed-upon goods establishes a prima facie case ofdefault. Generallnjectables & Vaccines, Inc. v. Gates, 519 F.3d 1360, 1363, supplementedon reh 'g, 527 F.3d 1375 (Fed. Cir. 2008). Terraseis did not deliverPhase I by 9 March 2013; that failure establishes aprima facie case ofdefault.

Didthe 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 clearthat Terraseis couldnot meet the 9 March 2013 delivery date, and bypromising to provide security and a helicopter scouting trip "sothat the project could continue" (app. br. at 16). We disagree. Where the government elects to permit a delinquent contractorto continueperformancepast a due date, it surrenders its alternative and inconsistentright to terminate the contract for default. Empire EnergyManagement 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 bythe contractor on the failure to terminate and continuedperformance by him underthe contract, with the government's knowledge and implied orexpress consent. Id. at 1354-55. Pre-default actions bythe government to encourage completion ofthe work do not waive a delivery date. See id. at 1355.

Here, the governmentterminated the contract on 16 March 2013, within a week ofthe 9 March 2013 delivery date that Terraseis failed to meet. We find that



### 8one-weekperiod a reasonable time after default. In addition, Terraseis did notperform 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 inearly February 2013, a month before the 9 March 2013 default date,3 and so were pre-default actions to encourage Terraseis's completion ofthe work. Finally, those representations did not induce Terraseis to continueperformance: Terraseis did not resume field operations basedupon those representations, it sent three people to Afghanistan to wait for instructions. For all these reasons, Terraseis fails to prove thatthe 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 causedby an occurrence beyond the reasonable control ofthe contractor and without its fault or negligence. Id. Terraseis contends that its failure to meet the delivery date is excusedbecause (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 ofa decree by the President ofAfghanistan 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 meetthe delivery date is not excused.

First, Terraseis entered the contract in 2012, and, therefore, is charged with knowledge ofthe 2010 presidential decree. Second, contractors are bound by the unexcused nonperformance oftheir subcontractors. 

### GeneralInjectables, 527 F.3d at 1378. In otherwords, "[t]he contractor alone is responsible for the deficiencies of its suppliers and its subcontractors absent a showing ofimpossibility." 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 agreedthat the government wouldprovide or facilitate the provision ofsecurity for the project.
4 Terraseis provides no record citation for, nor any copy ofthe decree, and does quote its contents; however, the government does not contest Terraseis's representation. Forpurposes ofthe appeal, we accept Terraseis's contention regarding the existence ofthe decree and its requirements.

9"[c]ontractperformance may require work in dangerous

...conditions," (2) provides that ''the Contractor accepts the risks associated withrequired workperformance in such operations," and (3) makes the contractor "responsible for all

...security support required for contractorpersonnel 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 pointto lack of security as an excuse for failure to meet a delivery date.

Fourth, we reject Terraseis's unforeseeability argument. Terraseis contends thatthe Afghan government hadprovided adequate security for twoprevious seismic projects, making its failure to provide adequate security for this projectunforeseeable, excusing Terraseis's nonperformance (app. br. at 14-15). We disagree. Forthe Afghan government's nonperformance to excuse Terraseis's nonperformance, the former mustbe excusable, not merely inconsistent with pastperformance. See GeneralInjectables, 527 F.3d at 1378. Although Terraseis relies upon HB. Nelson Construction Co. v. UnitedStates, 87 Ct. Cl. 375 (1938), and Climatic Rainwear Co.,

v. UnitedStates, 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 contractprovidedthat "theright ofthe contractorto proceed shall notbe terminated

...because ofany delays in the completion ofthe work due to unforeseeable

causes beyond the control and withoutthe fault or negligence ofthe contractor." 87 Ct. Cl. at 380 (emphasis added). In ClimaticRainwear, the contractprovided that "the contractor shall notbe charged with liquidated damages or any excess cost when the delay in delivery is due to unforeseeable causes beyond the control and withoutthe fault ornegligence ofthe contractor." 115 Ct. Cl. at 533 (emphasis added). Notably, the comparable contractprovision here, FARclause 52.212-4(t), omits any express reference to unforeseeability: "[t]he Contractor shall be liable for default unless nonperformance is causedby an occurrence beyondthe reasonable control ofthe Contractor and without its fault or negligence." That at least suggests that foreseeability is not a factor in determining whether contractorperformance is excused.

Even ifforeseeability is a factor, we find this case distinct from HB. Nelson and ClimaticRainwear onthatpoint. InH.B. Nelson, a railroad damaged steel trusses in the course oftransporting them; the court found that the resulting delay to the contractor's construction workwas unforeseeable because "[o]bviously neither the contractornorthe [government] would under the facts ofthis case have anticipated or given thought to what did happen to this steel." 87 Ct. Cl. at 380-81, 387-89. In ClimaticRainwear, raincoats leaked at the seams because ofa subcontractor's "strapping," even after government tests indicated that the problem had been solved. 115 Ct. Cl. at 535-36. The court found thatthe resulting delays in raincoat deliveries

were excusable because "[t]he failure ofthe strapping was clearly unforeseeable on the part ofeveryone." Id. at 567-68. In the two cases, essentially, the court found that,

10under the circumstances, once the trusses were handed overto 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 understoodthat security would be a difficult and constant challenge. Indeed, Terraseis foresaw the threat, and proposed specific measures to address it. Within a week ofthe start offield operations, the threatpresented itselfand 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 orbecause Terraseis wouldbe unable to persuade the Afghan government to provide the necessary level ofsecurity.6 And it is not as though Terraseis encountered a different conditionthan it expected; rather, Terraseis encountered the same threat that it had plannedto confrontwhen it entered the contract.

Fifth, withrespectto impossibility, Terraseis contends that contract performance was impossible both due to the lack ofadequate security (app. hr. at 12), and because contract clause 952.225-0001 precludedthe offensive military action that the TFBSO was eventually decided was required afterthe death ofan APPF soldier (app. reply hr. at 15-16). We rejectthose contentions. Terraseis performed contract work during the period 4-14 October 2012, and on some days thereafter (even after a driverwas 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 ofwhich Terraseis does notrecite), 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, suchthat any prohibition in clause 952.225-0001 against offensive military action would preventthe Afghan government from securing the project area.
Sixth, Terraseis contends that its default is excusedbecause the Afghan government's actions constitute sovereign acts. Although the FARdoes not define the term "the Government," 

### see FARPart 2, Definitions ofWords and Terms, we have no difficulty interpreting that term as limited to appellant's contractingpartner; that is, the Government ofthe United States, as opposed to some other government, such as the Afghan government. 

### CfPyramid Construction & 

### Engineering Corp., ASBCA

5 Delays caused by common carriers like the railroad in 

### HB. Nelson are expressly excusable under FARclause 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).

11government did not entitle contractor to equitable adjustment in price ofcontractwith the United States governmentbecause the increase was the sovereign act ofa government not a party to the contract). Indeed, Terraseis cites no authority in support ofany broader interpretation. Moreover, the contract elsewhere uses the term ''the Government" to refer implicitly to the Government ofthe United States; for example, referring to contract line item number (CLIN) 0002, the contractprovides that "[t]he contractor may invoice the Governmentup 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 topay Terraseis for services provided; here, the Government ofthe United States. The contract also implicitly distinguishes between the Government ofthe United States and at least some other government; its contract incorporates by reference DFARS clause 252.209-7004, SUBCONTRACTING
WITHFIRMS THAT AREOWNED OR CONTROLLED BY GOVERNMENT OF A TERRORIST COUNTRY (DEC 2006) (R4, tab 1 at 9), which expressly distinguishes between ''the Government" and "the government ofa terrorist country." Finally, ifany further explanation ofthe term "the Government" is needed, the contracting officer signed the
contract on behalfofthe "United States ofAmerica" (R4, tab 1 at 1 ). Consequently, within the meaning ofFARclause 52.212-4(f), only the sovereign acts of"the Government," that is, the Government ofthe 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 ofits equipmentby a supplierwho claimedthat Terraseis owedhim money. Terraseispoints to no evidence thatthe supplierreleased the equipmentpriortothe termination ofthe 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 ofequipment 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 ofthe contract for default wasjustified. Accordingly, ASBCANo. 58732 is denied.

12CONCLUSION

ASBCA No. 58731 is sustained in part and is remanded to the parties to resolve quantum. ASBCANo. 58732 is denied.

Dated: 19 November 2015

I concur

# ~M~ /-MARKN. STEMPLE Administrative Judge Acting Chairman Armed Services Board ofContract Appeals 

# ------- /**/~**

# __**/?~**

# ~CILMA~ Administrative Judge Armed Services Board ofContract Appeals

I concur 

# ifV\

RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContractAppeals

I certify that the foregoing is a true copy ofthe Opinion andDecision ofthe Armed Services Board ofContract Appeals in ASBCA Nos. 58731, 58732, Appeals of Terraseis TradingLimited, rendered in conformance with the Board's Charter.

Dated:

13 JEFFREY D. GARDIN Recorder, Armed Services Board ofContract Appeals