ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

Lean Construction and Engineering Co. ) 

) 

Under Contract No. W56SGK-l 3-C-7073 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 59016 

Mr. Abdul Ghafar Rassin 

Executive Director 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

L TC Brian J. Chapuran, JA 

MAJ Michael G. Pond, JA 

Trial Attorneys 

OPINION BY ADMINISTRATIVE JUDGE PAUL 

This is a timely appeal of a 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 at the 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 Contract No. W56SGK-13-C-7073 to Lean for specified construction work to 

augment force protection measures at an Afghan National Army Logistics depot in the 

province of Kabul and to upgrade the base's western entry control point (ECP) to 

facilitate two-way traffic (R4, tab 1 at 1-2, tab 2 at 225). 

2. Pursuant to CENTCOM Clause 952.232-0004, PAYMENT IN LOCAL 

CURRENCY (AFGHANISTAN) (AUG 2011), the contract was awarded on the basis of the 

local Afghan currency in a fixed-price amount of AFN 6,918,859.84. Based upon the 

exchange rate prevailing on the date the contract was awarded, this constituted 

approximately $142,297.20. (R4, tab 1 at 3-4, 7-8) 

3. The contract incorporated by reference a host of Federal Acquisition 

Regulation (FAR) clauses. Those pertinent to this appeal include FAR 52.236-5(c), 

MATERIAL AND w ORKMANSHIP (APR 1984 ), which provided, in pertinent part: "All 

work under this contract shall be performed in a skillful and workmanlike manner" 
(R4, tab 1 at 5). Also relevant is FAR 52.249-10, DEFAULT (FIXED-PRICE 

CONSTRUCTION) (APR 1984 ), which stated: 

(a) If the Contractor refuses 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 (or the separable part of the work) that has 

been delayed. In this event, the Government may take 

over the work and complete it by contract or otherwise, 

and may take possession of and use any materials, 

appliances, and plant on the work site necessary for 

completing the work. The Contractor and its sureties shall 

be liable for any damage to the Government resulting from 

the Contractor's refusal or failure to complete the work 

within the specified time, whether or not the Contractor's 

right to proceed with the work is terminated. This liability 

includes any increased costs incurred by the Government 

in completing the 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 of waste 

materials. Before completing the work, the Contractor 

shall remove from the work and premises any rubbish, 

tools, scaffolding, equipment, and materials that are not the 

property of the Government. Upon completing the 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: 

2 
SOLICITATION 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 

Attachment 4 Two Connex Guard Tower 15 NIA 

Attachment 5 Site Layout 1 NIA 

Attachment 6 Solar Panel 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 Link Fence Design 6 NIA 

Attachment 13 Statement of Work 7 NIA 

(R4, tab 1 at 32) 

5. Attachment 1 contained the Coalition Joint Task Force Phoenix Engineers 

Standard Specifications (R4, tab 1 at 3 3-115). Part 1, "General Requirements," of the 

specification included the following, pertinent provisions: 

4. Material: All materials shall be new and free of defects 

unless otherwise approved by the Contracting Officer 

Representative (COR). The Contractor shall remove 

defective materials from the site at no additional cost to 

the U.S. or Afghan Government. 

6. Quality of Work: All work shall be conducted in a 

professional manner, in accordance with accepted 

methods of construction, as detailed in the attached 

specifications. U.S. and Afghan Government personnel 

on site shall make regular inspection of work as it 

progresses. When work is completed at each stage of 

the project, Contractor shall submit work for inspection 

and be signed off by U.S. or Afghan Government 

personnel on site. 

3 
9. Clean up: The Contractor shall clean up the work site 

at the end of every work day and upon project 

completion, including the removal of all debris and 

refuse from the site, to the satisfaction of the 

Contracting Officer Representative (COR). 

(R4, tab l at 34-35) 

6. Part 2 of the Standard Specifications was entitled "Site Construction." 

Subsection 2.1 of section 2.0, "GENERAL EXCAVATION," provided: 

Contractor shall perform excavation of every type of 

material encountered within the limits of the project to the 

lines, grades, and elevations indicated and specified. 

Contractor shall transport satisfactory excavated materials 

and place in fill or embankment within the limits of the 

work. Contractor shall excavate unsatisfactory materials 

encountered within the limits of the 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 that will provide proper drainage at all times. 

(R4, tab 1 at 42-43) 

7. Part 3 of the Standard Specifications was entitled "Concrete." Section 1, 

also styled "Concrete," contained the following, relevant subsections: 

1.1. Cement: 3000 PSI (20.0 MPa) Type I Portland 

Cement Concrete or equivalent will be utilized in 

the completion of this project. The Contractor will 

be required to prepare and place all concrete to 

include the specific requirements described below. 

The contractor shall submit the name and brand of 

concrete for the COR to approve. 

4 
1.2. Materials: Concrete will consist of the following 

ingredients only: 

1.2.1. Portland Cement (Type 1) or equivalent 

1.2.2. Clean Sand (O. l 5mm - 4.75mm) 

1.2.3. Clean Course Aggregates (10mm-25mm 

crushed stone) 

1.2.4. Clean Water 

1.2.5. TF Phoenix Engineer Approved Chemical 

Admixtures 

1.3. Concrete specifications: Basic Structural concrete 

shall at least meet these specifications: 

1.3 .1. Designed strength = 21 MPa = 3 000 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 of organic materials and dirt, and 

will not have an excessive mineral content. 

Concrete will be mixed mechanically in an 

appropriate enclosure; to ensure adequate mixing, 

proper hydration and temperature control. HAND 

MIXING OF CONCRETE IS SPECIFICALLY 

PROHIBITED. An example of this is mixing 

concrete with a shovel on the ground or in a 

wheelbarrow. 

1. 7. Concrete Protection and Curing: The Contractor 

shall protect the 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 of concrete 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 

5 
eventually be reached. The proposed method of 

protection shall be indicated in the bid proposal 

package. 

2. All concrete shall be kept moist to facilitate the 

concrete curing phase for a minimum of 72 hours 

after placement however 7 days is preferred. 

(R4, tab 1at51-53) 

2.1. Ground Preparation: All concrete slabs and 

foundations will be placed on a properly 

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, 

tamping plate, 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 of 46 cm (18 inches). The excavated area 

where the concrete will be placed should be clean, 

damp, and free from debris, frost, ice, and standing 

or running water. 

2.1.1. Vapor Barrier: A minimum layer of0.4mm 

plastic shall be placed between the concrete 

foundation and the existing soil to act as a vapor 

barrier. All joints shall be overlapped 30cm. 

2.2. Steel Reinforcement: If specified, concrete 

will be provided with sufficient steel to provide 

tensile support and prevent cracking. All steel 

reinforcing bar junctions and lap joints will be 

welded or tied with steel wire ties. See Metals, 

Section 5 for additional information. 

8. The Standard Specifications also included a section called "HESCO Wall" 

(R4, tab 1 at 192-98). Chief Petty Officer Kevin Locher, the government's COR for 

much of the contract period, defined a HES CO wall in these terms: 

6 
A HESCO is, it's a barrier, 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 of sand 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 

stack them on top of each other to build the size walls that 

you need. 

(Tr. 2/24-25) The following provisions of this section are pertinent to this appeal: 

11. Concertina Wire: The contractor shall install two 

rows of concertina wire along the top of the wall. 

After a sufficient curing of the concrete cap, two rows 

of concertina wire shall be installed. The bottom row 

shall be located along the outer step of the lower 

HESCO container and the top row shall be located 

along the center of the top HESCO container. Each 

roll of concertina wire shall be stretched no more than 

13 m (42 ft). [C]oncertina wire strands shall be 

secured onto the steel picket top notch using steel 

wire. Consecutive coils of concertina wire 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 of the 

second coil over picket. 

11.3. Using steel wire, ensure that the top of both 

coils are secured to the picket. 

11.4. The contractor shall provide the wire to 

secure the concertina wire to the pickets. 

(R4, tab 1 at 192-94) 

9. Attachment #6 to the contract was styled: "SOLAR PANEL SPECS 

PACKAGED PHOTOVOLTAIC SYSTEM." Subsection 1.1, "SUMMARY," of 

Part 1, "GENERAL" stated: 

A. This specification section covers Photovoltaic (PV) 

System requirements including, but not limited to 

equipment, hardware, software, documentation, labor, 

materials, and supervision required for the installation 

7 
and maintenance of a 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 

container to form a complete and operational 

photovoltaic system capable of providing renewable 

power to the facility. The system will also include 

battery storage for a 24 hour autonomy period. [The] 

system inverters will be capable of interconnect with 

the emergency power diesel generator to provide 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. Solar panels 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 1 at 164) 

10. Pertinent, detailed specifications relating to the solar panels included: 

3.4 MODULARPV ARRAY INSTALLATION 

A. The Contractor shall design, construct and install 

the modular PV arrays on reinforced concrete 

footers. Footers shall extend deeper than the soil 

frost depth for the location installed, but not less 

than 800mm to bearing. Extend footers a 

minimum of 200 mm above finished grade. 

B. Provide and install galvanized steel j-bolts and 

clamps to fasten containers to footers. J-bolts and 

8 
clamps 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 of 3000mm x 19 mm at each comer of 

the array and bond with copper ground conductor 

per NFPA 70, Article 250. 

(R4, tab 1 at 169-73) 

11. Attachment 12 to the contract was entitled "Chain Link Fence." The 

specifications provided: 

1. Chain Link Fence 

1.1. Site Preparation: The Contractor shall prepare the 

site in accordance with Task Force 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 

concertina wire are required on the fence, 

each post shall have equally spaced 

outriggers. 

1.2.2. Braces shall be used in each bay adjacent to 

the comer posts. Braces shall be used on 

each swing gate door. Braces and posts 

shall be of 7.5 cm (3 in) diameter pipes. 

The base metal shall be weldable steel of 

commercial quality, or better. The steel 

shall be galvanized or have an equivalent 

protective coating. 

9 
1.2.3. The post shall be set in concrete foundation 

with diameter of 30.5 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) diameter that is woven 

into approximately 5 cm (2 in) mesh such 

that there shall be at least 7 meshes in a 

vertical dimension of 58.5 cm (23 in) along 

the diagonal of the 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 comer posts with 

stretcher bars having dimensions of not less 

than 0.6 cm x 1.9 cm (1/4 in x 3/4 in) and 

stretcher bar bands having dimensions of not 

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 or post clips 

and to tension wires with tie wires or hog 

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 of the fabric to the top tension wire 

10 
and from the bottom of the fabric to the bottom 

of the 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 of ground and in no case will filling 

of depressions be permitted. 

1.3 .4. All tension wire, tie wires, hog rings and 

post clips shall be of good commercial 

quality and shall be galvanized or be coated 

with an equivalent protective coating 

according to Task Force Specification 

PART 5 Metals. 

1.4. Swing Gate: 

1.4.1. If a 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 permit the gate to be swung back 

against the fence. The bottom hinge shall 

have a socket to take the ball end of the 

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 1 at 199-201) 

1.5.1. If shade 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 prior to tying. 

11 
12. Attachment 13 was the contractual "Statement of Work" (SOW). Section 1 

was entitled "GENERAL CONTRACT REQUIREMENTS," several of which are 

pertinent to this appeal. Included among them are: 

1.1. Purpose: The purpose of this project is to increase the 

force protection measures of the Depot perimeter 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 after the determined 

Notice to 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 cost to the Government. 

1.8. Clean up: The Contractor shall clean up the work site 

at the end of every work day and upon completion of 

the project, including removal of all debris and refuse 

from the site, to the satisfaction of the COR. 

1.9. Supervision and Quality Control: The Contractor 

shall provide project supervision throughout the 

course of construction. 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 of discovery for resolution. No material 

12 
proposed may be substituted with an alternate product 

unless approved by the government prior to delivery. 

The Contractor shall correct all deficiencies reported 

by the Government QA or Government QA 

Contractor who will inspect the Contractor's work. 

The Contractor shall issue a QA certification 

statement to 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 that the Government 

documented contractor defects have been corrected 

and shall be submitted prior to submission of the final 

Systems Acceptance. 

(R4, tab 1 at 205-07) 

13. Section 2 of the 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) ECP that 

includes 1 concrete guard tower and 2 guard posts. 

2.2.2. Task 2. The Contractor shall build and install (2) 

two, double storey Connex Guard towers[.] 

2.2.3. Task 3. The Contractor shall clean up any existing 

or construction-related debris from the construction 

site at the end of each 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 of the 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 of 20/40mm sized 

crushed gravel over the 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 

13 
shall lay, level and compact 150 mm of 20/40mm 

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 Solar panel specs. The tower shall 

include l(one) HVAC and l(one) solar electricity 

self power 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 of Attachment #7 Proposed ECP-Depot 0 and 

shall [be] constructed in accordance with Attachment 

#11 Hesco walls "para 8". The Concertina shall be 

installed on the exterior side of the 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 concertina wire on 

the lOB Hesco; it shall only be installed on the 8B. 

Contractor will stop 2m short of the 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 of the 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 contractor will deviate from Attachment 

# 10 Guard Post by not including any electrical 

components in these two guard posts. The contractor 

will provide and install one small wooden stove with 

metal exhaust tubing in each guard post. 

4.1.5 2 x Steel Panel Gates; shall be installed at the end 

of the ECP in accordance with Attachment #7 

Proposed ECP-Depot 0 and the Attachment #8 Steel 

Panel Gates. The Contractor will be responsible for 

14 
the adjustment of the steel panel gate's dimensions to 

ensure complete coverage of the road opening and 

complete. The contractor will submit design to COR 

for approval prior to installation. 

4.1.6 Chain Link Fence; shall connect the existing fence 

to each side of the 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 Task 2. The contractor shall build 2, double storey 

Connex guard towers along the fence perimeter of 

Depot 0 holding area. The guard towers will include 

HV AC and solar electricity self power system 

following design #6 Solar panel specs. The guard 

tower will follow all the specs of the design in 

attachment #4 Two CONNEX Guard Tower. The 

location of the guard towers are shown in attachment 

#5 Site Layout. 

4.3 Task 3. The Contractor shall clean up any existing or 

construction related debris from the construction site at 

the end of each day and at the completion of this 

project in accordance to Attachment # 1 -Standard 

Specifications, and Afghan National Law. All 

damages of main access road shall be repaired at 

the completion of the project. 

(R4, tab 1 at 208-09) 

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

Tasks contained in this contract shall be completed no later 

than 90 days after date of contract award. Extensions will 

be requested no less than seven (7) days from expiration of 

the contract period. The Government reserves the right to 

terminate the contract within ten (10) days['] notice if 

Contractor fails to fulfill any of its obligations contained 

herein. 

(R4, tab 1 at 208) 

15 
16. Regarding "Professional Conduct," the SOW provided: 

2. 5 .1. In addition to performing the duties and 

responsibilities described above, the contractor will 

ensure that the contractor's staff performs 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 Employer to violate any laws or to 

breach the Employer's Contract or cause the 

Employer any embarrassment. 

2.5.2. Implement, follow and obey any and all rules, 

regulations and systems of work devised by the 

Contractor which are hereby considered an integral 

part of this 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 Afghan people and 

the members of the Coalition. 

2.5.4. The Contractor shall comply with any mentioned 

Department of Defense and component specific 

publications and instructions, or the most current 

version of referenced material and its specified 

replacement, in performance of this SOW, unless 

otherwise noted. 

(R4, tab 1 at 208) 

17. The CO, Mr. Mark A. Penwell, issued Lean a notice to proceed, effective 

on 21 April 2013. He stated, in part: "You must complete all requirements of this 

project within 90 calendar days of the effective date of this Notice to Proceed or 

30 July 2013." (R4, tab 6) 1 

1 Since 90 days after the effective date of the notice to proceed is 20 July 2013 and not 

30 July 2013, Modification No. POOOOl was issued on 25 July 2013 to 

incorporate the actual completion date reflected in the notice to proceed (R4, 

tab 11). 

16 
18. Because Lean's workers were unable temporarily to gain access to the 

Afghan National Army compound where the project was 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 of Concern" to Lean. He stated, 

in part: 

1. This letter of concern is being written to express serious 

concerns over the ECP and Guard Tower project. The US 

Government visited the site on two different occasions 

(26 May 2013 and 2 June 2013). The workmanship and 

materials that you have provided are inferior to what is 

described in the Statement of Work (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 CMU work 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 together was lacking to standards mentioned 

earlier or missing all together. You also did not have an 

English speaking supervisor on s~te as outlined in your 

contract. It is 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 Contractor to 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 or make progress and perform under the contract 

is placing the construction of this project in jeopardy. 

Performance of this contract must be completed in 

accordance with the SOW. 

3. Failure to correct this matter in a timely manner will 

result in more serious actions. This will have a significant 

17 
impact on your overall performance rating on this contract 

and will jeopardize your ability to receive future contracts 

with the U.S. Government based on your past performance 

rating. 

4. You are required to submit a response within three (3) 

calendar days of receipt of this letter by 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 of completion for the 

construction of the ECP and Guard Tower Project. If you 

find the information in this letter to be incorrect or if you 

have evidence to support the delinquency, you are required 

to address that in your response. 

(R4, tab 9 at 2) Lean's response, if any, is not contained in the evidentiary record; 

however, the CO testified that Lean "ultimately corrected" the concerns set forth in the 

letter (tr. 21154; finding 7). 

20. On 18 August 2013, Chief Kevin Locher, the COR, conducted ajob site 

inspection and observed several deficiencies on Lean's part. Most significantly, 

Chief Locher noted that Lean had not installed the solar panels for the "two double conex 

guard towers." He also stated that the fence Lean has installed was of "poor quality." At 

the hearing, Chief Locher testified that these deficiencies were communicated to Lean's 

on-site representative. (R4, tab 13; tr. 2113; findings 4, 9-11, 14) 

21. On 19 August 2013, Chief Locher forwarded 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 at the ECP. 

2) The hand rail on the exterior ladder has faulty welds 

and needs re-weld[ing]. 

3) In one of the conex towers (and possibly the other 

tower also) conduit from the panel had a water tight elbow 

going to the exterior light over the 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 [sic] fixed. 

4) Both electrical panels needs [sic] the breakers labeled 

in both Dari and English. Once these and the issues 

18 
LT 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 self power system following 

design #6 Solar panel specs. The contractor will be 

responsible for determining how and where the panels will 

be mounted. The system shall be sized to 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 of the design in 

attachment #4 Two CONNEX Guard Tower. The location 

of the 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. Ref page 7 of attachment. 

Attachment 4 Para 13: Sandbags: The Contractor 

shall also furnish and install 2 rows of filled sandbags 

stacked the entire height of the walls on all four sides of 

the bottom CONNEX unit. 

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. 

- Fence post footing dimensions are not consistent with 

the attachment #12 Chain Link 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 of the fence must be tightened 

and the Concertina wire lashed in. 

3) Ref Sub Para 4.1.4 of So W, 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 

contractor will lay, level and compact 150mm depth of 

20/40mm sized crushed gravel over the 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 shall 

lay, level and compact 150 mm of 20/40mm 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 of Concern" to Lean. 

He wrote, in part: 

1. This letter of concern is being written to express serious 

concerns over the ECP and Guard Towers contract. On 

17 August 2013 you reported that you believed the contract 

was complete. When the COR went to the site, several 

discrepancies were found to include: 

a. No sand bags in the bottom connex towers 

b. No solar panels were installed by the connex guard 

towers 

c. The period of performance is expired 

d. The Chigo did not work in the concrete tower at 

the ECP 

e. The hand rail on the exterior ladder has faulty 

welds and needs to be re-welded 

f. In one of the connex towers (and possibly the 

other tower also) conduit from the panel had a water tight 

elbow going to the exterior light over the 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]. 

20 
g. 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. Ref page 7 

of attachment. 

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 Link Fence Specifications 

Sub Para 1.2.3: The post shall be set in concrete 

foundation with diameter of 30.5 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 of the fence must be 

tightened and the Concertina wire lashed in. 

1. 4) Gravel must be leveled and compacted for the 

ECP in and out routes IA W SOW Task 1: The Contractor 

shall level, compact and slope to drain the entire ECP area. 

The contractor will lay, level and compact 150 mm depth of 

20/40 mm sized crushed gravel over the 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 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. Ref Sub Para 4.1.4 of SOW, Guard Shacks are to 

have small wood stoves in them. 

The U.S. Government does not take ownership of the ECP 

and guard towers until it has been constructed in 

accordance with the SOW. The period of performance 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. It is up to the Contractor to complete this project on 

schedule and obtain the materials for the project. As the 

contracting officer, I have considered your duty to seek 

assistance and guidance regarding obtaining the materials; 

however, your failure to proceed or make progress and 

perform under the contract is placing the construction of 

21 
this project in jeopardy. Performance of this contract must 

be completed in accordance with SOW. 

3. Failure to correct this matter in a timely manner will 

result in more serious actions. This will have a significant 

impact on your overall performance rating on this contract 

and will jeopardize your ability to receive future contracts 

with the Government based on your past performance 

rating. 

4. You are required to submit a response within three (3) 

calendar days of receipt of this letter. Your response shall 

include a corrective action plan and a detailed schedule of 

completion for the construction of the ECP and Guard 

Towers. If you find the information in this letter to be 

incorrect or if you 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's response to this letter of concern, if it 

exists, is not part of the evidentiary record. 

23. On 27 August 2013, Lt Gorsline and Chief Locher conducted another site 

inspection. Through an email of that date, they informed Lean of the results. They 

wrote, in part: 

We conducted a site inspection of the 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 adjacent to 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 of Concern" from the CO. He wrote, in part: 

1. This letter of concern is being written to express serious 

concerns over the ECP and Guard Tower project. The US 

Government visited the site on two different occasions 

(27 August 2013 and 31August2013). The workmanship 

and materials that you have provided are inferior to what is 

22 
described in the Statement of Work (SOW), Task Force 

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, Task Force Phoenix Standards, ANSF Standards 

and the contract. 

2. It is up to the Contractor to 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 or make progress and perform under the contract 

is placing the construction of this project in jeopardy. 

Performance of this contract must be completed in 

accordance with the SOW. 

3. Your contract expires 5 September 2013. Your contract 

will NOT be extended without consideration from your 

company. Once the period of performance expires, your 

company will be in Default and subject to termination. 

Please provide your consideration for review/acceptance 

by the Contracting Officer. Failure to correct this matter in 

a timely manner will result in more serious actions. This 

will have a significant impact on your overall performance 

rating on this contract and will jeopardize your ability to 

receive future contracts with the U.S. Government based 

on your past performance. 

4. You are required to submit a response within three (3) 

calendar days of receipt of this letter by 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 of completion for the 

construction of the ECP and Guard Tower Project. You 

must also submit any additional information that you feel 

23 
is necessary as to why the US Government should not find 

you in default of this contract. If you find the information 

in this letter to be incorrect or if you have evidence to 

support the delinquency, you are required to address that in 

your response. 

(R4, tab 19; findings 4, 14) 

25. Through an undated letter, Lean responded to the CO's third letter of 

concern. Initially, Mr. Rassin acknowledged the deficiencies cited by government 

personnel. He wrote: 

I went to the site today and saw some issues such as 

concrete pad under the guard towers look not good, and 

very embarrassing issue was the aggregate in front of 

guard towers - the workers took it from car park - I do 

apologize for that. Despite that we had more than enough 

aggregate in our area which is more suitable for concrete, 

but workers did not bother to bring it from our area but 

instead took it from nearby car park - It is all about them 

being lazy. Likewise the supervisor in the site told me that 

he put good concrete under guard towers but when I visit 

the site it does not look good to me. Regarding the work 

progress I am more concern than you, because every day 

we are losing money or the slower they work the more we 

lose. The solar company gave us very bad time, they are 

working very slowly and unproductive. This Shirking 

problem is the biggest pressure, we feel very week [sic] in 

solving the issue, despite trying many incentivized 

compensations models but no good result so far, may be 

because here [in] Afghanistan, workers are shortsighted 

with no long-run business thinking. The last couple of 

days of thinking and discussion within our firm found that 

shirking problem among workers (the tendency to do less 

work when the return is similar) being dishonest, careless, 

and not having similar vision as the company, are the main 

factors that cause all these problems. 

But then Mr. Rassin attempted to blame the deficiencies on the government 

personnel who were administering and inspecting the project. He stated: 

I think it will not be good for us to blame others, so we 

don't want to blame, but it will be good to at least share 

24 
our thoughts regarding issues at your end. One of the main 

problems at your end is personal issue, as we discussed this 

before we strongly believe that the new team has personal 

issue with us. Therefore they are biased and over critical. 

If you track their first few emails, you see they only asked 

a couple of deficiencies to be rectified but the more we 

worked the more they found excuses e.g. first they said, 

change the fence angle, then put more concrete under the 

post, then put tension wire, then make straight the 

concertina wire, 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 of Lean's efforts to rectify the deficiencies which he had 

acknowledged, Mr. Rassin wrote: 

We are done with ECP, as we provided more gravel, fixed 

the faulty welding, the lights, the fence, the wooden stoves. 

We also brought the solar panels and barriers and other 

equipment, we only need to install it. Now the main issue 

is concrete pad under guard towers, please tell us your 

decision regarding this. Also it is important to mention 

that Afghan official desperately want[ s] us to push back 

the location of guard towers, this is due to complain[t] 

from neighboring residents, they believe the guard tower 

breach[ es] their privacy. 

(R4, tab 20 at 3) 

26. On 31 August 2013, Lt Gorsline and Chief Locher conducted another 

inspection during which they discovered several deficiencies in the concrete work. 

Lt Gorsline wrote, in part, as follows: 

Myself and the COR for the ANA ENG Cell, Chief Locher, 

conducted a site inspection of the CSD ECP and CONNEX 

towers today 31/08/2013. We found that the 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 not being 

followed. The concrete would have been poured between 

the 24/08/2013 and the 28th and the CONNEX towers were 

2 By "new team," Mr. Rassin was likely referring to the replacement of the first COR, 

Mr. Glass, with Chief Locher (tr. 2/9). 

25 
placed on the foundations as soon as the 31/08/2013. This 

work quality is unsatisfactory and reflects poorly on the 

competence of our departments if we allow this to continue. 

My recommendation is encourage the contractor to 

complete the ECP and then to carry out a partial ha[ n ]d 

over of the ECP portion to the ANA. IOT complete the 

ECP the contractor must 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 of the 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 on the ground adjacent to 

the footing frame, and rebar was exposed in certain areas. 

(R4, tab 21at1; findings 4, 7, 13-14) 

27. On 3 September 2013, the government conducted another site inspection. 

Its representatives noted some improvement but also many deficiencies which had not 

been rectified. The government's situation report (SITREP), which included several 

photographs of the site conditions, stated: 

Was on site today and there was some unexpected 

progress. Mainly in the way of solar panels 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't be acceptable of course. The 

workers on site said they thought it was going to be put on 

blocks. Stairs support has been installed and sandbags are 

being put in the lower conexs [sic] per the SOW. Welds 

on the concrete guard tower hand rail has been repaired. 

The light fixture in concrete tower fixed but there isn't any 

power to the whole tower so not sure if it works. 

No work on the ECP area as far as gravel and fixing the 

fence problems. They stacked CMU blocks under the 

guard shacks. Fences and tension wire still not stretch[ ed] 

26 
tight. Gravel still not brought up to thickness indicated in 

SOW. Concrete at ECP area is not up to quality as well. 

Gates needs adjust[ing]. Wheels aren't touching ground. 

Drainage through the wall will need to be re-dug to allow 

run off to run 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 completed the ECP portion of the contract (R4, tab 24 at 1). On 

24 September 2013, Lean forwarded an email to the government, stating as follows: 

The subject project was complete and ready for handover 

on Saturday (21109/2013 ), I emailed to Mr. Mark Penwell 

to come for handover, but I never received any reply from 

Mr. Penwell. 

Regarding your point (problems in the project) I should say 

there is no problem in the project (project is absolutely fine), 

the problem is the COR, I knew that because of personal 

issue the COR is not going to accept the project-5 weeks 

ago, he sent us a list of tasks that we have to correct which 

we did. 

Also I should point out that in the last couple of weeks I 

never received any feedback from COR to tell us about the 

problems in the project. I mentioned this issue in our 

official Memorandum (COR is not willing to contact us) 

informing Mr. Mark Penwell that once our project is 

complete we will not accept any changes, but Mr. Penwell 

did not do anything about this and we received no email 

from USG telling us about any problem. So, we ended our 

contract with our workers and sub-contractors, hence we 

cannot do anything now and we are sure that the project is 

absolutely fine, please kindly process our payment as the 

USD exchange rate is badly changing and we are losing. 

27 
Moreover, I want to inform you that ANA 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 Chief Locher and Lt Gorsline, 

conducted another site visit, relying upon Lean's assurances that the project had been 

completed. By this point in time, the revised contractual completion date of 5 September 

2013 had elapsed. In his memorandum of 29 September terminating the contract for 

default, the contracting officer noted deficiencies with the concrete slabs under the feet of 

the CONNEX towers, unacceptable installation of the solar panels, failure to provide a 

certified electrician, defective welds, unfilled sandbags, failure to install gravel in the ECP 

area, and improper installation of the wood stoves in the guard towers. The CO concluded 

that the contract was 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 government reserved "the right" 

in the SOW to issue such a notice. That the government chose not to exercise this right 

does not affect the efficacy of the termination under the facts presented here (finding 15). 

30. During the site visit of 29 September 2013, the CO stressed to Mr. Rassin 

that Lean 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 of the American Government is [sic] going to result in increased 

insurgent activities." (R4, tabs 27, 32) The government representatives who were 

present viewed this as a threat and immediately left the project site (R4, tabs 33, 34). 

Despite his defiant attitude at the parties' meeting of 29 September 2013, Mr. Rassin, 

in his hearing testimony, conceded several of the deficiencies noted by the 

government. For example, he admitted through one of his photographs that his forces 

had constructed only half of the concrete slab under the 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 of 20/40 mm 

crushed gravel over the entire ECP footprint (tr. 3/21-22, 102; finding 14 ). Also 

Mr. Rassin admitted that the guard posts were placed on concrete blocks, rather than 

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 admitted that Lean did not 

install concrete footers for the solar panel 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 never corrected this 

deficiency (tr. 3/136-37; findings 4, 7, 12-13). 

28 
31. On 1 October 2013, the CO forwarded another notice of termination for 

default to Lean, in which he stated, in pertinent part: "The period of performance 

ended on 5 September 2013 [and] you have only completed 73.96 percent of the 

project" (R4, tab 30 at 1 ). This completion percentage was based upon detailed 

calculations performed by Lt Gorsline and Chief Locher. Using the "Bill of 

Quantities/Materials that was provided by Lean" as part of its proposal, the project 

engineer performed the following tasks: 

I have systematically gone through each task and assigned 

a[ n] overall percentage of completion for each task. 

I based it equally on the percentage of work complete as 

well as the percent of materials provided. 

I took the value being charge[ d] by Lean Corps for each 

task and applied the percentage completion. 

I took the final value of work 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 of work on the contractual sub-tasks after Lean had 

completed its efforts (R4, tab 29, passim). At the hearing, Chief Locher gave credible 

testimony describing the analysis which he and Lt Gorsline had performed regarding 

the completion percentages of the 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% of the work on 

the project (comp I. -,r 15). 

DECISION 

It is axiomatic that the government bears the burden of proving that a default 

termination was proper. Lisbon Contractors, Inc. v. United States, 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. United States, 408 F .2d 424, 431 (Ct. Cl. 1969). If the 

government establishes a prima facie case that the termination was proper, the burden 

of production, or going forward with the evidence, shifts to the contractor. Benju 

Corp., ASBCA No. 43648 et al., 97-2 BCA -,r 29,274 at 145,654. 

29 
Here, 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. Throughout the performance period, the 

CO kept Lean informed of its deficiencies through three letters of concern (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% of the contractual requirements. This contention is not persuasive. The analysis 

conducted by Chief Locher and Lt Gorsline demonstrates that, at best, Lean completed 

74% of the 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 COR on the project, that it had completed 80% of the project, 

Lean contends that he signed a DD250 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 of Mr. 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 of his inspection, Mr. Glass never inspected 

either the solar panels for the CONNEX guard towers or the towers themselves 

(tr. 2/217-21). Based on Mr. Glass's testimony, the Board declines to give credence to 

the 80% figure. 

Lean also attacks the probative value of the site photographs used by the 

government to demonstrate the various deficiencies which had not been resolved at the 

time when the contract was partially terminated for default (app. br. at 18). The Board 

also rejects this argument. Chief Locher vouched in his testimony for each of the 

photographs, explaining when and under what circumstances they were taken. In 

addition, the CO, Mr. Penwell, testified that he accompanied Chief Locher and 

Lt Gorsline to the job site on 29 September 2013 and reviewed each part of the project 

to determine what were discrepancies and which part of the work was properly 

performed. (Tr. 2170-77, 161) 

Lean also contended that the default termination was the result of a personal 

animus against it by government personnel (finding 25). There is no credible record 

evidence of any bias against Lean by any government representatives. Accordingly, 

we also reject this contention. 

30 
The appeal is denied. 

Dated: 18 May 2016 

I concur 

CONCLUSION 

MICHAEL T. PAUL 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

MARK 

~M~ N. STE~LER RICHARD SHACKLEFORD 

Administrative Judge Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

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

Armed Services Board of Contract Appeals in ASBCA No. 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 of Contract Appeals