ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) Lean Construction and Engineering Co. ) ) Under ContractNo. W56SGK-l3-C-7073 )

APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 59016

Mr. Abdul GhafarRassin

Executive Director Raymond M. Saunders, Esq.

Army ChiefTrial Attorney LTC BrianJ. Chapuran, JA MAJMichael G. Pond, JA

Trial Attorneys

OPINIONBYADMINISTRATIVE JUDGE PAUL

This is a timely appeal ofa contracting officer's (CO's) decision partially terminating appellant, Lean Construction and Engineering Co.'s (Lean's) construction contract for default. The Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, is applicable. A hearing was held atthe Board's offices. Only entitlement is before**us~** We deny the appeal.

FINDINGS OF FACT

1. On 15 April 2013, the Regional Contracting Center-Capital, Afghanistan, awarded ContractNo. W56SGK-13-C-7073 to Lean for specified construction workto augment force protection measures at an AfghanNational Army Logistics depot in the province ofKabul andto upgrade the base'swestern entry control point (ECP) to facilitate two-way traffic (R4, tab 1at 1-2, tab 2 at 225).

2. Pursuant to CENTCOM Clause 952.232-0004, PAYMENT IN LOCAL CURRENCY (AFGHANISTAN) (AUG 2011), the contractwas awarded onthe basis ofthe local Afghan currency in a fixed-price amount ofAFN 6,918,859.84. Basedupon the exchange rate prevailing on the date the contract was awarded, this constituted approximately $142,297.20. (R4, tab 1at 3-4, 7-8)

3. The contract incorporated by reference a host ofFederal Acquisition Regulation (FAR) clauses. Those pertinentto this appeal include FAR 52.236-5(c), MATERIAL AND

## w ORKMANSHIP (APR 1984), which provided, in pertinent part: "All work underthis contract shall beperformed in a skillful and workmanlike manner"(R4, tab 1 at 5). Alsorelevant is FAR 52.249-10, DEFAULT (FIXED-PRICE CONSTRUCTION) (APR 1984), which stated:
(a) Ifthe Contractorrefuses or fails to prosecute the work or any separable part, with the diligence that will insure its completion within the time specified in this contract including any extensions, or fails to complete the work within this time, the Government may, by written notice to the Contractor, terminate the right to proceed with the work (orthe separable part ofthe work) that has been delayed. In this event, the Government may take
overthe work and complete it by contract or otherwise, and maytakepossession ofand use any materials, appliances, and plant onthe work site necessary for completing the work. The Contractor and its sureties shall be liable for any damage to the Governmentresulting from the Contractor's refusal or failure to complete the work withinthe specifiedtime, whether ornot the Contractor's righttoproceedwiththe work is terminated. This liability includes any increased costs incurredbythe Government in completingthe work.
(R4, tab 1at24) FAR 52.236-12, CLEANING UP (APR 1984), is also pertinent. It provided:

(Id.) The Contractor shall at all times keep the work area, including storage areas, free from accumulations ofwaste materials. Before completing the work, the Contractor shall remove from the work andpremises any rubbish, tools, scaffolding, equipment, and materials that are notthe property ofthe Government. Upon completingthe work, the Contractor shall leave the work area in a clean, neat, and orderly condition satisfactory to the Contracting Officer.

4. The contract also contained 13 attachments which described in minute detail the various technical requirements. They were listed as follows:

2SOLICITATION ATTACHMENTS ATTACHMENT TABLE OF CONTENTS DOCUMENT TYPE DESCRIPTION PAGES DATE Attachment 1 TFP Standard Specifications 83 18 Jun 2009 Attachment 2 ANSF Construction Standards 10 5 Sep 2011 Attachment 3 Concrete Tower Design 22 

### NIA Attachment4 Two Connex Guard Tower 15 

### NIA Attachment 5 Site Layout 1 

### NIA Attachment 6 SolarPanel Specs 10 

### NIA Attachment 7 Proposed ECP Drawing 1 

### NIA Attachment 8 Steel Panel Gates 10 

### NIA Attachment 9 Drop Gate Standard Design 6 

### NIA Attachment 10 Guard posts 1 

### NIA Attachment 11 Hesco Wall 7 

### NIA Attachment 12 Chain LinkFenceDesign 6 

### NIA Attachment 13 Statement ofWork 7 

### NIA
(R4, tab 1at 32)

5. Attachment 1contained the Coalition Joint Task Force Phoenix Engineers Standard Specifications (R4, tab 1at 33-115). Part 1, "General Requirements," ofthe specification included the following, pertinentprovisions:

4. Material: All materials shall be new and free ofdefects unless otherwise approved by the Contracting Officer Representative (COR). The Contractor shall remove defective materials from the site at no additional costto the U.S. orAfghan Government.

6. Quality ofWork: All work shall be conducted in a professional manner, in accordance with accepted methods ofconstruction, as detailed in the attached specifications. U.S. and Afghan Governmentpersonnel
on site shall make regular inspection ofwork as it progresses. When work is completed at each stage of the project, Contractor shall submitwork for inspection andbe signed offbyU.S. orAfghan Government personnel on site.

39. Clean up: The Contractor shall clean up the work site at the end ofevery work day and upon project completion, including the removal ofall debris and refuse from the site, to the satisfaction ofthe Contracting Officer Representative (COR). (R4, tab l at 34-35)

6. Part 2 ofthe Standard Specifications was entitled "Site Construction." Subsection 2.1 ofsection 2.0, "GENERAL EXCAVATION,"provided:

Contractor shall perform excavation ofevery type of material encountered within the limits ofthe projectto the lines, grades, and elevations indicated and specified. Contractor shall transport satisfactory excavated materials and place in fill or embankment within the limits ofthe work. Contractor shall excavate unsatisfactory materials encountered within the limits ofthe work below grade and replace with satisfactory materials as directed. Contractor shall include such excavated material and the satisfactory material ordered as replacement in excavation. Contractor shall dispose surplus satisfactory excavated material not required for fill or embankment in areas approved for surplus material storage or designated waste areas. Contractor shall dispose unsatisfactory excavated material in designated waste or spoil areas. During construction, Contractor shall perform excavation and fill in a manner and sequence thatwill provide proper drainage at all times.
(R4, tab 1at 42-43)

7. Part 3 ofthe Standard Specifications was entitled "Concrete." Section 1, also styled "Concrete," containedthe following, relevant subsections:

1.1. Cement: 3000 PSI (20.0 MPa) Type I Portland Cement Concrete or equivalentwill be utilized in the completion ofthis project. The Contractorwill be required toprepare and place all concrete to include the specific requirements described below. The contractor shall submitthe name and brand of concrete for the CORto approve.

4

### 1.2. Materials: Concrete will consist ofthe following ingredients only: 1.2.1. Portland Cement (Type 1) or equivalent 1.2.2. Clean Sand (O.

### l5mm

- 4.75mm) 1.2.3. Clean Course Aggregates (10mm-25mm crushed stone) 1.2.4. Clean Water 1.2.5. TF Phoenix EngineerApproved Chemical Admixtures

1.3. Concrete specifications: Basic Structural concrete shall at least meet these specifications: 1.3.1. Designed strength = 21MPa = 3000 psi 1.3.2. Minimum Cement content= 340kg/cubic meter 1.3.3. Maximum Water/Cement ratio= 0.68 by volume 1.3.4. Maximum coarse aggregate size = 25mm 1.3.5. Slump Range= 101.6mm

- 152.4mm

1.4. Concrete Mix: All mix aggregates will be free of dirt, dust and debris contamination. Any mix water used will be free oforganic materials and dirt, and will not have an excessive mineral content. Concrete will be mixed mechanically in an appropriate enclosure; to ensure adequate mixing, properhydration and temperature control. HAND MIXING OF CONCRETE IS SPECIFICALLY PROHIBITED. An example ofthis is mixing concrete with a shovel on the ground or in a wheelbarrow.

1.7. Concrete Protection and Curing: The Contractor shall protectthe concrete in such a manner as to maintain a constant temperature between 50°F (10 °C) and 90°F (32.2°C) for 7 days. Acceptable methods ofconcrete protection include: insulating layers, moisture barriers, curing compound, or environmental enclosures. Continuous moist curing is the most desirable objective. Moist curing for 7 days will typically ensure the 28-day strength will 

### 5eventually be reached. The proposed method of protection shall be indicated in the bidproposal package.

2. All concrete shall be kept moist to facilitate the concrete curingphase for a minimum of72 hours afterplacement however 7 days is preferred.

(R4, tab 1at51-53) 2.1. Ground Preparation: All concrete slabs and foundations will be placed on aproperly consolidated base course, at least 200mm (8 inches) thickness. Base course material shall consist of lOmm

- 50mm (3/8 inch- 2 inches) crushed stone. Compaction may be accomplished by roller, tampingplate, or any suitable method approved by COR. Sub-grade and base course will be drained and free from any voids or organic materials to a depth of46 cm (18 inches). The excavated area where the concrete will beplaced should be clean, damp, and free from debris, frost, ice, and standing
orrunning water.
2.1.1. VaporBarrier: A minimum layer of0.4mm plastic shall be placedbetween the concrete foundation and the existing soil to act as a vapor barrier. Alljoints shall be overlapped 30cm.

2.2. Steel Reinforcement: Ifspecified, concrete will be provided with sufficient steel to provide tensile support and prevent cracking. All steel reinforcing barjunctions and lapjoints will be welded ortied with steel wire ties. See Metals, Section 5 for additional information.

8. The Standard Specifications also included a section called "HESCO Wall" (R4, tab 1at 192-98). ChiefPetty OfficerKevin Locher, the government's COR for much ofthe contract period, defined a HESCO wall in these terms:

6A HESCO is, it's abarrier, and what it is, it's a wire mesh cage, and they've got different sizes in height and in thickness, and inside that cage there's a fabric, and what you do is, you set those up and you fill them full ofsand or dirt, and it becomes a security barrier against explosions, against gunfire, builds a big dirt wall for you, is what it basically does, and then you can line them up, you can stackthem on top ofeach other to build the size walls that you need.
(Tr. 2/24-25) The following provisions ofthis section are pertinentto this appeal:

11. Concertina Wire: The contractor shall install two rows ofconcertinawire along the top ofthe wall. After a sufficient curing ofthe concrete cap, two rows ofconcertina wire shall be installed. The bottom row shall be located along the outer step ofthe lower HESCO container and the top row shall be located along the center ofthe top HESCO container. Each roll ofconcertina wire shall be stretched no more than 13 m (42 ft). [C]oncertinawire strands shall be secured onto the steel pickettop notch using steel wire. Consecutive coils ofconcertinawire shall be connected at the steel picket as follows:

11.1. Place the first coil over the picket. 11.2. Place both bottom and top portion ofthe second coil overpicket. 11.3. Using steel wire, ensure that the top ofboth coils are secured to the picket. 11.4. The contractor shall provide the wire to secure the concertinawireto the pickets. (R4, tab 1at 192-94)

9. Attachment#6 to the contract was styled: "SOLARPANEL SPECS PACKAGED PHOTOVOLTAIC SYSTEM." Subsection 1.1, "SUMMARY," of Part 1, "GENERAL" stated:

A. This specification section covers Photovoltaic (PV) Systemrequirements including, but not limited to equipment, hardware, software, documentation, labor, materials, and supervision required for the installation
7and maintenance ofa selfl-]contained, packaged, photovoltaic system.

B. This system includes factory, pre-assembled, photovoltaic cells, charge controllers, power inverters, batteries, shunts, over-current protection devices, interconnecting cable, meter, and shipping-operating containerto form a complete and operational photovoltaic system capable ofproviding renewable powerto the facility. The system will also include battery storage for a 24 hour autonomy period. [The] system inverters will be capable ofinterconnect with the emergency power diesel generatortoprovide power should the autonomy period exceed 24 hours.

C. Section includes, but is not limited to the following: 1. Infrastructure, wiring, connection, and testing; 2. Solarpanels and panel arrays; 3. Service disconnect switches; 4. DC combiners; 5. Inverters; 6. Monitoring equipment and Control software; 7. Identifications and signs; 8. Shipping-operating containers; 9. Provide all labor and materials, and make all necessary connections.
(R4, tab 1at 164)

10. Pertinent, detailed specifications relating to the solarpanels included:

3.4 MODULARPVARRAYINSTALLATION

A. The Contractor shall design, construct and install the modularPV arrays on reinforced concrete footers. Footers shall extend deeper than the soil frost depth for the location installed, but not less than 800mmto bearing. Extend footers a minimum of200 mm above finished grade.

B. Provide and install galvanized steelj-bolts and clamps to fasten containers to footers. J-bolts and

8clamps shall be designed to withstand seismic events for the location.

C. Provide a minimum of 1200 mm between array rows.
D. Route all wiring from PV array to building in conduit underground and stub up to inside of storage-operating container as appropriate.

E. Provide and install copper clad steel ground rods, minimum of3000mmx 19 mm at each comer of the array and bond with copper ground conductor perNFPA 70, Article 250.
(R4, tab 1at 169-73)

11. Attachment 12 to the contractwas entitled "ChainLink Fence." The specifications provided:

1. Chain Link Fence

1.1. Site Preparation: The Contractor shall prepare the site in accordance with TaskForce Specification PART 2 Site Preparation.

1.2. Posts and Braces:

1.2.1. The post spacing and configuration shall be arranged per Chain Link Fence Site Plan and Details. When barbed wire and concertinawire are required on the fence, eachpost shall have equally spaced outriggers.

1.2.2. Braces shall be used in each bay adjacentto the comerposts. Braces shall be used on each swing gate door. Braces and posts shall be of7.5 cm (3 in) diameterpipes. The base metal shall be weldable steel of commercial quality, orbetter. The steel shall be galvanized or have an equivalent protective coating.

91.2.3. The post shall be set in concrete foundation with diameter of30.5 cm (12 in) and 61 cm (24 in) deep. The minimum embedment length for the posts shall be 50 cm (18 in). The concrete shall be placed according to the Task Force Specification PART 3 Concrete.

1.3. Fence Fabric:

1.3.1. The fence fabric shall be 4 mm (9-gage/0.148 in) diameterthat is woven into approximately 5 cm (2 in) mesh such that there shall be at least 7 meshes in a vertical dimension of58.5 cm (23 in) along the diagonal ofthe openings. The fence fabric shall have knuckled finish on the top and bottom edges.

1.3.2. The fence fabric shall be stretched and securely fastened to comerposts with stretcherbars having dimensions ofnot less than 0.6 cm x 1.9 cm (1/4 in x 3/4 in) and stretcherbarbands having dimensions ofnot less than 0.3 cm x 1.9 cm (1/8 in x 3/4 in) spaced at 30.5 cm (12 in) intervals. The fence fabric shall also be fastened to intermediate posts with tie wires orpost clips and to tension wires with tie wires orhog rings. The fasteners shall be spaced at approximately 35.5 cm (14 in) on intermediate posts and at approximately 50 cm (18 in) on tension wires.

1.3.3. Tie wires and hog rings shall be at least 4 mm (9-gage/0.148 in) diameter steel and post clips shall be at least 5 mm (6-gage/0.192 in) diameter steel. Wire ties shall be given at least
one complete tum. Hog rings shall be closed with ends overlapping. The tension wires shall be wrapped around end posts. The distance from the top ofthe fabric to the top tension wire
10and from the bottom ofthe fabric to the bottom ofthe tension wire shall be 75 mm (3 in) maximum. The tension wires shall be at least 0.5 cm (6-gage/0.192 in) diameter coil spring steel. Tension wires shall be stretched tight. The bottom tension wire shall be installed on a straight grade between posts by excavating the high points ofground and in no case will filling ofdepressions be permitted.

1.3.4. All tension wire, tie wires, hog rings and post clips shall be ofgood commercial quality and shall be galvanized orbe coated with an equivalent protective coating according to Task Force Specification PART 5Metals.

1.4. Swing Gate:

1.4.1. Ifa swing gate is required, it shall be fabricated from 5 cm (2 in) diameter weldable steel and be galvanized or have an equivalent protective coating. Each gate section shall be hung by at least 2 steel hinges not less than 13 cm (5 in) in width. The hinges shall securely clamp to the gate post and permitthe gate to be swung back against the fence. The bottom hinge shall have a socketto take the ball end ofthe gate frame. Fence fabric shall be welded to the frame. The swing gate shall have a commercial grade steel lock clasp.

1.5. Shade Fabric/Screen[:]

(R4, tab 1at 199-201) 1.5.1. Ifshade fabric is required, it shall be fabricated from a sun-resistant PVC material. The screen material shall have the same dimensions as the fence. It shall be hung with metal ties and shall be pulled taut priorto tying.

1112. Attachment 13 was the contractual "Statement ofWork" (SOW). Section 1
was entitled "GENERAL CONTRACT REQUIREMENTS," several ofwhich are pertinent to this appeal. Included among them are:
1.1. Purpose: The purpose ofthis project is to increase the force protection measures ofthe Depotperimeter and upgrade the western ECP to facilitate two-way traffic.

1.2. Contract Completion Date: The contract shall be completed no later than 90 days afterthe determined Noticeto proceed from the Contracting Officer (CO).

1.3. Material: All materials shall be new and free of defects unless otherwise approved by the COR/CO. The Contractor shall remove defective material from the site at no additional costto the Government.

1.8. Clean up: The Contractor shall clean up the work site at the end ofevery work day and upon completion of the project, including removal ofall debris and refuse from the site, to the satisfaction ofthe COR.

1.9. Supervision and Quality Control: The Contractor shall provide project supervision throughout the
course ofconstruction. The Contractor shall establish and maintain a quality control system throughout the project. The Contractor shall demonstrate skilled workmanship in constructing a quality product.

1.11. Quality Assurance: The Contractor shall perform Quality Control (QC) on all Contractor-installed materials and equipment. The Contractor QC shall report any discrepancies between what was ordered and what is delivered, implemented, and performed to the Government or Government QA Contractor within I day ofdiscovery for resolution. No material
12proposed may be substituted with an alternate product unless approvedby the government priorto delivery. The Contractor shall correct all deficiencies reported by the Government QA or Government QA Contractorwhowill inspect the Contractor's work. The Contractor shall issue a QA certification statementto the Government validating that the installed system is free from installation deficiencies and defects for the support service period selected. This statement shall also certify thatthe Government documented contractor defects have been corrected and shall be submitted priorto submission ofthe final Systems Acceptance.
(R4, tab 1at 205-07)

13. Section 2 ofthe SOW, entitled "SUMMARY OF WORK," broke the project down into three basic tasks. They are defined as follows:

2.2.1. Task 1. The Contractor shall build l(one) ECPthat includes 1concrete guard tower and 2 guardposts.

2.2.2. Task2. The Contractor shall build and install (2) two, double storey Connex Guardtowers[.]

2.2.3. Task3. The Contractor shall clean up any existing
or construction-related debris from the construction site atthe end ofeach day and at the completion of this project in accordance to Attachment #I-Standard Specifications, and Afghan National Law.
(R4, tab 1 at 207-08)

14. The SOW also included a detailed description ofthe three tasks:

4.1. Task 1. The Contractor shall level, compact and slope to drain the entire ECP area. The contractor will lay, level and compact 150mm depth of20/40mm sized crushed gravel overthe entire Depot 0 ECP footprint except for the area with the required concrete slab for the steel panel gates following the attachment#7 Proposed ECP-Depot 0. In addition the contractor
13shall lay, level and compact 150 mm of20/40mm sized crushed gravel in the transitional road connecting the ECP to the existing main access road
as shown on the drawings.

4.1.1 

### Concrete Guard Tower; shall be built following the design in Attachment#3 Concrete guard tower and Attachment #6 Solarpanel specs. The tower shall include l(one) HVAC and l(one) solar electricity selfpower system.
4.1.2 3 x 

### Besco Walls; shall be built in order to create a 2 (two) way traffic entrance and exit following the design ofAttachment#7 Proposed ECP-Depot 0 and shall [be] constructed in accordance with Attachment #11 Hesco walls "para 8". The Concertina shall be installed onthe exterior side ofthe HESCO walls for the two outside Hesco walls. The contractor shall deviate from the standard design on the middle Hesco barrier and not install the concertinawire on the lOB Hesco; it shall only be installed on the 8B. Contractorwill stop 2m short ofthe panel gates to create a gap for personnel access.
4.1.3 2 x 

### Drop Gates; shall be built at the entrance and exit as specified in accordance with Attachment #9 Drop gate standard design and Attachment #7 Proposed ECP Depot 0. The drop arm gates will be installed at the end ofthe HESCO barriers.

4.1.4 2 x 

### Guard Posts; shall be installed beside drop gates and constructed in accordance with Attachment #7 Proposed ECP-Depot 0 and Attachment#10 Guard Post. The contractorwill deviate from Attachment #10 Guard Post by not including any electrical components in these two guardposts. The contractor will provide and install one small wooden stove with metal exhausttubing in each guard post.
4.1.5 

### 2 x Steel Panel Gates; shall be installed at the end ofthe ECP in accordance with Attachment #7 Proposed ECP-Depot 0 and the Attachment#8 Steel Panel Gates. The Contractorwill be responsible for
14the adjustment ofthe steel panel gate's dimensions to
ensure complete coverage ofthe road opening and complete. The contractorwill submit design to COR for approval prior to installation.

4.1.6 Chain LinkFence; shall connect the existing fence to each side ofthe ECP with a 45 degree angle as shown in Attachment#7 Proposed ECP Depot 0. The fence construction shall follow the Attachment #12 Chain Link Fence Design. No sniper screen is required.

4.2 Task2. The contractor shall build 2, double storey Connex guard towers along the fence perimeter of Depot 0 holding area. The guardtowers will include HV AC and solar electricity selfpower system following design #6 Solarpanel specs. The guard tower will follow all the specs ofthe design in attachment#4 Two CONNEX Guard Tower. The location ofthe guardtowers are shown in attachment #5 Site Layout.

4.3 Task3. The Contractor shall cleanup any existing or constructionrelated debris from the construction site at the end ofeach day and at the completion ofthis project in accordance to Attachment# 1-Standard Specifications, and AfghanNational Law. All damages ofmain access road shall be repaired at the completion ofthe project.
(R4, tab 1at 208-09)

15. With respect to the contract's period ofperformance, the SOW stated:

Tasks contained in this contract shall be completed no later than 90 days after date ofcontract award. Extensions will be requested no less than seven (7) days from expiration of the contractperiod. The Governmentreserves the right to terminate the contract withinten (10) days['] notice if Contractor fails to fulfill any ofits obligations contained herein.
(R4, tab 1at 208)
1516. Regarding "Professional Conduct,"the SOWprovided:

2.5.1. In addition to performing the duties and responsibilities described above, the contractorwill
ensure thatthe contractor's staffperforms their duties honestly in a competent and lawful manner and within the time required by the Employer. The tasks are to be accomplished in a way which will not cause the Employerto violate any laws orto breachthe Employer's Contract or causethe Employer any embarrassment.

2.5.2. Implement, follow and obey any and all rules, regulations and systems ofwork devised by the Contractorwhich are hereby considered an integral part ofthis contract.

2.5.3. Act in a non-sectarian manner at all times with demonstrated respect for all ethnic, religious, and other groups that constitute the Afghanpeople and the members ofthe Coalition.

2.5.4. The Contractor shall comply with any mentioned Department ofDefense and component specific publications and instructions, orthe most current version ofreferenced material and its specified replacement, inperformance ofthis SOW, unless otherwise noted.
(R4, tab 1 at 208)

17. The CO, Mr. Mark A. Penwell, issued Lean a notice toproceed, effective
on 21 April 2013. He stated, in part: "You must complete all requirements ofthis projectwithin 90 calendar days ofthe effective date ofthis Notice to Proceed or 30 July 2013." (R4, tab 6) 1

1 Since 90 days afterthe effective date ofthe notice toproceed is 20 July 2013 and not 30 July 2013, ModificationNo. POOOOl was issued on 25 July 2013 to incorporate the actual completion date reflected in the notice toproceed (R4, tab 11). 1618. BecauseLean's workers were unable temporarily to gain access to the Afghan National Army compound where the projectwas to be performed, the completion date was initially extended to 13 August 2013 by Modification No. P00002, and then to 5 September 2013 through Modification No. P00003 (R4, tabs 12, 17; tr. 21152-53).

19. On 3 June 2013, the CO issued a "Letter ofConcern" to Lean. He stated, in part:
1. This letter ofconcern is being written to express serious
concerns overthe ECP and Guard Towerproject. The US Governmentvisited the site on two different occasions (26 May 2013 and 2 June 2013). The workmanship and materials that you have provided are inferiorto what is described in the Statement ofWork (SOW), Task Force Phoenix Standards, ANSF Standards and the contract. The COR, Mr. Steve Glass did not accept the work you [sic] that you had completed to date and sent an email on 28 May 2013 to correct the problems. When the US Government visited the site again on 2 June 2013, your company had torn down the previous CMUwork and began to reinstall new CMU work. There were several problems noted on the new work that were not to standard. The concrete mortar mix that was used to adhere the CMU's togetherwas lacking to standards mentioned earlier ormissing all together. You also did not have an English speaking supervisor on**s~te** as outlined in your contract. Itis the Contractor's responsibly to complete the work as outlined in the SOW, Task Force Phoenix Standards, ANSF Standards and the contract.
2. It is up to the Contractorto complete this project on schedule and obtain quality materials for the project. As the contracting officer, I have considered your duty to seek assistance and guidance regarding obtaining the materials and the overall workmanship; however, your failure to proceed ormake progress and perform under the contract is placingthe construction ofthis project injeopardy. Performance ofthis contract must be completed in accordance with the SOW.

3. Failure to correct this matter in a timely mannerwill result in more serious actions. This will have a significant
17impact on your overall performance rating on this contract and willjeopardizeyour ability toreceive future contracts withthe U.S. Governmentbased onyourpastperformance rating.

4. You are required to submit a response within three (3) calendar days ofreceipt ofthis letter by official letterhead memorandum format only. An email writtenresponse will notbe accepted. Your response shall include a corrective action plan and a detailed schedule ofcompletion for the construction ofthe ECP and Guard TowerProject. Ifyou find the information in this letter to be incorrect or ifyou have evidence to support the delinquency, you are required to address that in yourresponse. (R4, tab 9 at 2) Lean's response, ifany, is not contained in the evidentiaryrecord; however, the CO testified thatLean "ultimately corrected" the concerns set forth in the letter (tr. 21154; finding 7).

20. On 18 August 2013, ChiefKevin Locher, the COR, conducted ajob site inspection and observed several deficiencies onLean'spart. Most significantly, ChiefLocher noted that Leanhad not installed the solarpanels for the "two double conex guardtowers." He also statedthat the fence Leanhas installed was of"poorquality." At the hearing, ChiefLochertestified thatthese deficiencies were communicatedto Lean's on-site representative. (R4, tab 13; tr. 2113; findings 4, 9-11, 14)

21. On 19 August 2013, ChiefLocherforwarded an email to Lean in which he noted other deficiencies which had surfaced during his inspection:

The other issues
1) The Chigo [HVAC unit][is] not working in the concrete tower atthe ECP. 2) The handrail onthe exterior ladder has faulty welds and needs re-weld[ing]. 3) In one ofthe conex towers (and possibly the other tower also) conduit from the panel had a watertight elbow goingto theexterior light overthe door. To getwire to the outlet for the Chigo, a hole was drilled in the elbow and
ran loose to the outlet. This needs [sic] fixed. 4) Both electrical panels needs [sic] the breakers labeled in both Dari andEnglish. Oncethese and the issues

18LT Gorlsine outlined are completed we can hopefully get out and do a final inspection.
(R4, tab 14 at 1) The issues outlined by Lt Gorsline, the project engineer, related to various contractual specifications with which Lean had not compiled. Lt Gorsline described these deficiencies to Lean in the following terms: 1) 2 x CONNEX GUARD TOWERS:

SOW: The contractor shall build 2, double storey [sic] Connex guard towers along the fence perimeter of Depot 0 holding area. The guard towers will include HV AC and solar electricity selfpower system following design #6 Solarpanel specs. The contractorwill be responsible for determining how and where the panels will be mounted. The system shall be sizedto provide 6 kW system output (7.5 kVA) indicated at full load rated power 1

% mean ambient summer operating temperature. The guard tower will follow all the specs ofthe design in attachment#4 Two CONNEX Guard Tower. The location ofthe guard towers are shown in attachment#5 Site Layout.

Attachment 4 Para 12: Mirrors: The Contractor shall furnish and install tow [sic] Convex Security Mirrors
as described in the drawings. Refpage 7 ofattachment.

Attachment 4 Para 13: Sandbags: The Contractor shall also furnish and install 2 rows offilled sandbags stackedthe entire height ofthe walls on all four sides of the bottom CONNEXunit.
2) ECP Fence:

- Fence tension wires are to be tightened as per description in attachment#12 Chain Link Fence Specifications Sub Para 1.3.3.

- Fencepost footing dimensions are not consistentwith the attachment#12 ChainLink Fence Specifications Sub Para 1.2.3: The post shall be set in concrete foundation with diameter of30.5 cm (12 in) and 61 cm (24 in) deep. The minimum embedment length for the posts shall be 50 cm (18in).
19- Barbwire on the top ofthe fence must be tightened and the Concertina wire lashed in.
3) RefSub Para4.1.4 ofSoW, Guard Shacks are to have small wood stoves in them.
4) Gravel must be leveled and compacted for the ECP in and out routes IAW SoW Task 1: The Contractor shall level, compact, and slope to drain the entire ECP area. The contractorwill lay, level and compact 150mm depth of 20/40mm sized crushed gravel overthe entire Depot 0 ECP footprint except for the area with the required concrete slab for the steelpanel gates following the attachment#7 Proposed ECP- Depot 0. In addition the contractor shall lay, level and compact 150 mm of20/40mm sized crushed gravel in the transitional road connecting the ECP to the existing main access road as shown on the drawings. (R4, tab 14 at 2; findings 8, 11, 13, 14)

22. On 19 August 2013, the CO issued his second "Letter ofConcern" to Lean. He wrote, in part:
1. This letter ofconcern is being written to express serious
concerns overthe ECP and Guard Towers contract. On 17 August 2013 you reported thatyou believedthe contract was complete. When the CORwent to the site, several discrepancies were found to include:

a. No sand bags in the bottom connextowers b. No solarpanels were installed by the connex guard towersc. The period ofperformance is expired d. The Chigo did not work in the concrete tower at the ECP
e. The hand rail on the exterior ladderhas faulty welds and needs to be re-welded f. In one ofthe connex towers (and possibly the othertower also) conduit from the panel had a watertight elbow going to the exterior light overthe door. To get wire to the outlet for the Chigo, a hole was drilled in the elbow and ran loose to the outlet. This needs fixed [sic].
20g. Both electrical panels needs [sic] the breakers labeled in both Dari and English. h. Contractor shall furnish and install two Convex Security Mirrors as described in the drawings. Refpage 7 ofattachment. i. Fence tension wires are to be tightened as per description in attachment#12 Chain Link Fence Specifications Sub Para 1.3.3. j. Fence post footing dimensions are not consistent with the attachment #12 Chain LinkFence Specifications Sub Para 1.2.3: The post shall be set in concrete foundation with diameter of30.5 cm (12 in) and 61 cm (24 in) deep. The minimum embedment length for the posts shall be 50 cm (18 in). k. Barbwire on the top ofthe fence must be tightened and the Concertinawire lashed in. 1. 4) Gravel mustbe leveled and compacted for the ECP in and out routes IAW SOW Task 1: The Contractor shall level, compact and slope to drain the entire ECP area. The contractorwill lay, level and compact 150 mm depth of 20/40 mm sized crushed gravel overthe entire Depot 0 ECP footprint except for the areawith the required concrete slab for the steel panel gates following the attachment #7 Proposed ECP-Depot 0. In addition the contractor shall lay, level and compact 150 mm of20/40 mm sized crushed gravel in the transitional road connecting the ECP to the existing main access road as shown on the drawings.
m. RefSub Para 4.1.4 ofSOW, Guard Shacks are to have small wood stoves in them.

The U.S. Government does not take ownership ofthe ECP and guard towers until it has been constructed in accordance with the SOW. The period ofperformance for this contract ended 13 August 2013. One no cost extension has already been granted. The Contractor is required to submit a new schedule and excusable delay log.

2. Itis up to the Contractorto complete this project on schedule and obtain the materials for theproject. As the contracting officer, I have consideredyour duty to seek assistance and guidance regarding obtainingthe materials; however, your failure to proceed ormake progress and perform underthe contract is placing the construction of
21this project injeopardy. Performance ofthis contract must be completed in accordance with SOW.

3. Failure to correct this matter in atimely mannerwill result in more serious actions. This will have a significant impact on your overall performance rating on this contract and willjeopardizeyour ability to receive future contracts with the Government based on yourpastperformance rating.

4. You are required to submit a response within three (3) calendar days ofreceipt ofthis letter. Your response shall include a corrective action plan and a detailed schedule of completion for the construction ofthe ECP and Guard Towers. Ifyou find the information in this letter to be incorrect or ifyou have evidence to support the delinquency, you are required to address that in your response. (R4, tab 15; findings 4, 8, 11, 13, 14) Lean'sresponse to this letter ofconcern, ifit exists, is not part ofthe evidentiary record.

23. On 27 August 2013, Lt Gorsline and ChiefLocher conducted another site inspection. Through an email ofthat date, they informed Lean ofthe results. They wrote, in part:

We conducted a site inspection ofthe Northern CONNEX tower foundation and found that the concrete was not to standard. The concrete did not have the appropriate aggregate and was mixed on the ground adjacentto the footing frame. Please acknowledge that you have received this email. (R4, tab 18 at 1; findings 4, 7)

24. On 31 August 2013, the government conducted another site inspection. The results triggered a third "Letter ofConcern" from the CO. He wrote, in part:
1. This letter ofconcern is being written to express serious
concerns overthe ECP and Guard Towerproject. The US Government visited the site on two different occasions (27 August 2013 and 31August2013). The workmanship and materials that you have provided are inferiorto what is
22described in the Statement ofWork (SOW), TaskForce Phoenix Standards, ANSF Standards and the contract. The Engineer, Lt Deane Gorsline and the COR SWC Keven Locher has [sic] not accepted the work completed to date and has [sic] sent an email on 27 August 2013 to correct the deficiencies. When the US Government visited the site again on 31 August 2013, your company went ahead and placed the connex towers on the concrete pads that were not built to specifications outlined in the SOW and the TF Phoenix and ANSF Standards. It is the Contractor's responsibly [sic] to complete the work as outlined in the SOW, TaskForce Phoenix Standards, ANSF Standards and the contract.
2. Itis up to the Contractorto complete this project on schedule and obtain quality materials for the project. As the contracting officer, I have considered your duty to seek assistance and guidance regarding obtaining the materials and the overall workmanship; however, your failure to proceed ormake progress and performunderthe contract is placingthe construction ofthis project injeopardy. Performance ofthis contract must be completed in accordance with the SOW.

3. Your contract expires 5 September 2013. Your contract will NOTbe extended without consideration from your company. Once the period ofperformance expires, your companywill be in Default and subjectto termination. Please provide your consideration for review/acceptance by the Contracting Officer. Failure to correctthis matter in
a timely manner will result in more serious actions. This will have a significant impact on your overall performance rating onthis contract and willjeopardizeyour ability to receive future contracts with the U.S. Governmentbased
on yourpastperformance.

4. You are required to submit a response within three (3) calendar days ofreceipt ofthis letterby official letterhead memorandum format only. An email written response will not be accepted. Your response shall include a corrective action plan and a detailed schedule ofcompletion for the construction ofthe ECP and Guard Tower Project. You must also submit any additional information that you feel
23is necessary as to why the US Government should not find you in default ofthis contract. Ifyou find the information in this letterto be incorrect orifyouhave evidence to supportthe delinquency, you are required to address that in yourresponse. (R4, tab 19; findings 4, 14)

25. Through an undated letter, Leanresponded to the CO's third letter of
concern. Initially, Mr. Rassin acknowledged the deficiencies cited by government personnel. He wrote:

I wentto the site today and saw some issues such as concrete pad underthe guard towers look not good, and very embarrassing issue was the aggregate in front of guardtowers

- the workers took it from carpark

- I do apologize for that. Despite that we had more than enough aggregate in our area which is more suitable for concrete, butworkers didnotbothertobring it from our areabut instead took it from nearby carpark

- It is all aboutthem being lazy. Likewisethe supervisor in the site told methat he put good concrete under guard towers butwhen I visit the site it does not look goodto me. Regardingthe work progress I am more concernthan you, because every day
we are losing money orthe slowerthey workthe more we lose. The solar company gave us very badtime, they are working very slowly and unproductive. This Shirking problem is the biggestpressure, we feel very week [sic] in solving the issue, despite trying many incentivized compensations models butno good result so far, may be because here [in] Afghanistan, workers are shortsighted with no long-run business thinking. The last couple of days ofthinking and discussion within ourfirm found that shirking problem amongworkers (the tendency to do less work when the return is similar) being dishonest, careless, and not having similarvision as the company, are the main factors that cause all these problems.

Butthen Mr. Rassin attempted to blame the deficiencies on the government personnel who were administering and inspectingthe project. He stated:

I think it will notbe good for us to blame others, so we don'twanttoblame, but it will be goodto at least share
24ourthoughts regarding issues at your end. One ofthe main problems atyour end is personal issue, as we discussedthis before we strongly believe thatthe new team has personal issue with us. Therefore they are biased and over critical. Ifyou tracktheir first few emails, you see they only asked
a couple ofdeficiencies to berectified butthe more we workedthe more they found excuses e.g. first they said, change the fence angle, then put more concrete underthe post, then puttension wire, then make straightthe concertinawire, then fix the gap at the top

....I am sure they will go on and on. (R4, tab 20 at 1)2 As a part ofLean's efforts to rectify the deficiencies which he had acknowledged, Mr. Rassin wrote:

We are done with ECP, as weprovided more gravel, fixed the faulty welding, the lights, the fence, the wooden stoves. We also broughtthe solarpanels and barriers and other equipment, we only needto install it. Nowthe main issue is concrete padunder guardtowers, please tell us your decision regardingthis. Also it is importantto mention that Afghan official desperately want[s] us to pushback the location ofguardtowers, this is due to complain[t] from neighboring residents, they believethe guardtower breach[es] theirprivacy.
(R4, tab 20 at 3)

26. On 31 August 2013, Lt Gorsline and ChiefLocher conducted another inspection during whichthey discovered several deficiencies inthe concrete work. Lt Gorsline wrote, in part, as follows: Myselfandthe COR for the ANA ENG Cell, ChiefLocher, conducted a site inspection ofthe CSD ECP and CONNEX towers today 31/08/2013. We found thatthe concrete quality was as unsatisfactory as it had been on our site inspection on the 27/08/2013 as detailed below. Additionally, the appropriate cure times are notbeing followed. The concrete would have beenpouredbetween the 24/08/2013 and the 28th andthe CONNEX towers were

2 By "newteam," Mr. Rassin was likely referring to the replacement ofthe first COR, Mr. Glass, with ChiefLocher (tr. 2/9). 25placed on the foundations as soon as the 31/08/2013. This work quality is unsatisfactory and reflects poorly on the competence ofour departments ifwe allow this to continue. My recommendation is encourage the contractorto complete the ECP and then to carry out a partial ha[n]d
over ofthe ECP portion to the ANA. IOT complete the ECP the contractormust make the following reparations: fix to the Guard Tower lighting, place adequate amount of gravel on in and out routes, and install stoves in the Guard Shacks. At this point the contractor can be paid for the work that he has completed.

We conducted a site inspection ofthe CONNEX tower foundations on Aug 27 2013 and found that the concrete was not to standard. The concrete did not have the appropriate aggregate, was mixed onthe ground adjacent to the footing frame, and rebar was exposed in certain areas. (R4, tab 21at1; findings 4, 7, 13-14)

27. On 3 September2013, the government conducted another site inspection. Its representatives noted some improvementbut also many deficiencies which had not been rectified. The government's situation report (SITREP), which included several photographs ofthe site conditions, stated:

Was on site today and there was some unexpected progress. Mainly in the way ofsolarpanels being installed by the two double conex [sic] towers. Although the stands for the panels at the moment are nothing more than rebar welded on the stands and drove into the ground. This won'tbe acceptable ofcourse. The workers on site saidthey thought it was going to be put on blocks. Stairs support has been installed and sandbags are beingput in the lower conexs [sic] perthe SOW. Welds
on the concrete guard towerhandrail has beenrepaired. The light fixture in concrete tower fixed but there isn't any powerto the whole tower so not sure ifit works.

No work onthe ECP area as far as gravel and fixing the fence problems. They stacked CMUblocks under the guard shacks. Fences and tension wire still not stretch[ed] 

### 26tight. Gravel still not brought up to thickness indicated in SOW. Concrete atECP area is not up to quality as well. Gates needs adjust[ing]. Wheels aren'ttouching ground. Drainage through the wall will needtobe re-dug to allow
run offtorun to the ditches. The pad Concrete not to standard. Thickness is good but easily chips away and very little agragate [sic] in the mix.
(R4, tab 22 at 1-4; findings 4, 7, 9, 11, 14)

28. On 10 September 2013, Lean forwarded an email to the CO in which it stated that it had completedthe ECP portion ofthe contract (R4, tab 24 at 1). On 24 September 2013, Lean forwarded an email to the government, stating as follows:

The subjectproject was complete and ready for handover
on Saturday (21109/2013), I emailedto Mr. Mark Penwell to come for handover, but I neverreceived any reply from Mr. Penwell. Regarding yourpoint (problems in the project) I should say there is noproblem in the project (project is absolutely fine), the problem is the COR, I knew thatbecause ofpersonal issue the CORis not going to acceptthe project-5 weeks ago, he sentus a list oftasks thatwe have to correctwhich
we did.

Also I shouldpoint outthat in the last couple ofweeks I
neverreceived any feedback from CORto tell us about the problems inthe project. I mentioned this issue in our official Memorandum (CORis notwilling to contact us) informing Mr. Mark Penwell that once ourproject is complete we will not accept any changes, butMr. Penwell did not do anything about this and wereceived no email from USG telling us about any problem. So, we ended our contractwith ourworkers and sub-contractors, hence we cannot do anything now and we are sure thatthe project is absolutely fine, please kindlyprocess ourpayment as the USD exchangerate is badly changing and we are losing.



### 27Moreover, I wantto inform you thatANA started using the Guard tower (see photos), now using our facility and not paying for that is not FAIR.
(R4, tab 26 at 1)

29. On 29 September 2013, the CO accompanied by ChiefLocher and Lt Gorsline, conducted another site visit, relying upon Lean's assurances that the project had been completed. By this pointin time, the revised contractual completion date of5 September 2013 had elapsed. In his memorandum of29 Septemberterminating the contract for default, the contracting officer noted deficiencies with the concrete slabs under the feet of the CONNEXtowers, unacceptable installation ofthe solarpanels, failure to provide a certified electrician, defective welds, unfilled sandbags, failure to install gravel in the ECP area, and improper installation ofthe wood stoves in the guard towers. The CO concluded that the contractwas not complete and that it would take Lean "considerable weeks to correct" the various deficiencies. (R4, tab 28 at 1-3) A cure notice requirement was not contained in the Default clause (finding 3). However, the governmentreserved "the right" in the SOWto issue such a notice. That the government chose notto exercise this right does not affectthe efficacy ofthe termination underthe facts presented here (finding 15).

30. Duringthe site visit of29 September 2013, the CO stressed to Mr. Rassin thatLean could only be paid for the work which it had completed in accordance with the SOW. Mr. Rassin became very agitated and replied: "Your attitude[] and poor representation ofthe American Government is [sic] goingto result in increased insurgent activities." (R4, tabs 27, 32) The governmentrepresentatives who were presentviewed this as a threat and immediately lefttheproject site (R4, tabs 33, 34). Despite his defiant attitude at theparties' meeting of29 September2013, Mr. Rassin, in his hearing testimony, conceded several ofthe deficiencies noted by the government. For example, he admittedthrough one ofhis photographs that his forces had constructed only halfofthe concrete slab underthe steel panel gates, as required by the contract (tr. 2/93-96; findings 4, 7, 13). In addition, Mr. Rassin admitted that Lean did not comply with the contractual requirement to provide 150 mm of20/40 mm crushed gravel overthe entire ECP footprint (tr. 3/21-22, 102; finding 14). Also Mr. Rassin admittedthat the guard posts were placed on concrete blocks, ratherthan
on a concrete foundation. Indeed, he opined that a foundation was not even required. (Tr. 3/30; findings 4, 13-14, 24, 26) Also, Mr. Rassin admittedthat Lean did not install concrete footers for the solarpanel array frame (tr. 3/86-89; findings 4, 9, 14). Finally, Mr. Rassin admitted using parking lot gravel for the concrete used for the CONNEX guard tower foundation. He also conceded that Lean nevercorrected this deficiency (tr. 3/136-37; findings 4, 7, 12-13).

2831. On 1October 2013, the CO forwarded another notice oftermination for default to Lean, in whichhe stated, in pertinentpart: "Theperiod ofperformance ended on 5 September 2013 [and] youhave only completed 73.96 percent ofthe project" (R4, tab 30 at 1 ). This completionpercentage was based upon detailed calculations performed by Lt Gorsline and ChiefLocher. Using the "Bill of Quantities/Materials that was provided by Lean" as part ofits proposal, the project engineerperformed the following tasks:

I have systematically gone through each task and assigned a[n] overall percentage ofcompletion for each task.

I based it equally onthe percentage ofwork complete as well as the percent ofmaterials provided.

I took the value being charge[d] by Lean Corps for each task and applied the percentage completion.

I took the final value ofwork completed and divided it by the work Leans Corps was billing us for to find the TOTAL PERCENT COMPLETION: 74%. (R4, tab 29) This percentage figure gave Lean credit for various sub-tasks which it had not fully completed. Attached to Lt Gorsline's memorandum were various photographs depicting the state ofwork on the contractual sub-tasks afterLean had completed its efforts (R4, tab 29,passim). Atthe hearing, ChiefLocher gave credible testimony describing the analysis which he and Lt Gorsline had performed regarding the completion percentages ofthe various sub-tasks in minute detail (tr. 2/69-77).

32. On 15 November 2013, Lean timely appealed the CO's final decision to this Board. In its complaint, Lean alleged that it had completed 100% ofthe work on the project (compI. -,r 15).

DECISION



### It is axiomatic that the government bears the burden ofprovingthat a default termination was proper. Lisbon Contractors, Inc. v. UnitedStates, 828 F.2d 759, 763 (Fed. Cir. 1987). Moreover, it is settled law that a default termination is a drastic sanction which should be sustained only for good grounds and on solid evidence. JD. Hedin Construction Co. v. UnitedStates, 408 F.2d 424, 431 (Ct. Cl. 1969). Ifthe government establishes aprima facie case that the termination was proper, the burden ofproduction, orgoing forward with the evidence, shifts to the contractor. Benju Corp., ASBCA No. 43648 etal., 97-2 BCA -,r 29,274 at 145,654.

29Here, the government has met its burden. Although the contractual completion date was extended from 30 July 2013 to 5 September 2013 through two modifications (finding 18), Lean did not complete the work. Throughoutthe performance period, the CO kept Lean informed ofits deficiencies through three letters ofconcern (findings 19, 22, 24). Despite continual efforts on the parts ofthe CO, COR, and the project engineer, Lean was unable to rectify its deficiencies and to complete the project (findings 19-31).

In its pleadings and at the hearing, Lean argued that it had, in fact, performed 100% ofthe contractual requirements. This contention is not persuasive. The analysis conducted by ChiefLocher and Lt Gorsline demonstrates that, at best, Lean completed 74% ofthe work by the revised contractual completion date (finding 31). Hence, we must reject Lean's argument in this regard. Referring to an earlier alleged conclusion by 

### Mr. Glass, the first CORon the project, that it had completed 80% ofthe project, Lean contends that he signed aDD250 form to this effect and that the completion percentage could not have declined from 80%to 73.96% (app. br. at 3): However, a review ofMr. Glass's testimony reveals that the 80% figure was only an approximate number. Moreover, there is no record evidence that

### Mr. Glass executed a DD250 form to this effect (tr. 2/216). Finally, as part ofhis inspection, Mr. Glass never inspected either the solarpanels for the CONNEX guard towers orthe towers themselves (tr. 2/217-21). Based on 

### Mr. Glass'stestimony, the Board declines to give credence to the 80% figure.

Lean also attacks the probativevalue ofthe site photographs used by the governmentto demonstrate the various deficiencies which had notbeen resolved at the time when the contract was partially terminated for default (app. br. at 18). The Board also rejects this argument. ChiefLochervouched in his testimony for each ofthe photographs, explainingwhen and under what circumstances they were taken. In addition, the CO, 

### Mr. Penwell, testifiedthat he accompanied ChiefLocher and Lt Gorsline to thejob site on 29 September 2013 and reviewed each part ofthe project to determine whatwere discrepancies andwhichpart ofthe work was properly performed. (Tr. 2170-77, 161)

Lean also contended that the default termination was the result ofapersonal animus against it by governmentpersonnel (finding 25). There is no credible record evidence ofany bias againstLean by any governmentrepresentatives. Accordingly,
we also reject this contention.

30The appeal is denied.

Dated: 18 May 2016

I concur CONCLUSION

MICHAEL T. PAUL Administrative Judge Armed Services Board ofContractAppeals

# ~M~ MARKN.

### STE~LER RICHARD SHACKLEFORD Administrative Judge Administrative Judge Acting Chairman Armed Services Board ofContract Appeals Vice Chairman Armed Services Board ofContractAppeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCANo. 59016, Appeal of Lean Construction and Engineering Co., rendered in conformance with the Board's Charter.

Dated:

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