ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

Sang Kash Company ) 

) 

Under Contract No. W9 l B4N-l 5-D-8013 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 60532 

Mr. Abdul Bari 

President 

Raymond M. Saunders, Esq. 

Army Chief Trial Attorney 

MAJ Ronald M. Herrmann, JA 

Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE WOODROW 

ON THE PARTIES' MOTIONS FOR SUMMARY JUDGMENT 

This is an appeal from the Joint Theater Support Contracting Command's 

(JTSCC or Army) termination for default against Sang Kash Company (Sang Kash or 

appellant). The Army terminated its contract for the supply of bulk concrete with Sang 

Kash after Sang Kash lost its base access privileges to Bagram Airfield, Afghanistan. 

Pending before the Board is the Army's motion for summary judgment and appellant's 

cross-motion. Clause 5152.225-5916 was incorporated into the contract by bilateral . 

modification, which required appellant to maintain access to the installation in order to 

perform work under awarded task orders (R4, tab 14). After the Senior Commander of 

Bagram Airfield Afghanistan revoked appellant's base access, the contracting officer 

terminated the contract for default. Appellant appealed the termination for default 

arguing that: (i) its base access privileges were revoked as a means for the government to 

nullify its contract rights; and (ii) appellant was deprived due process rights. 

We grantthe government's motion for summary judgment and deny the appeal. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

1. Contract No. W91B4N-l5-D-80l3 (the contract) was a requirements contract 

awarded to Sang Kash on July 8, 2015, by CENTCOM (US Central Command)-Joint 

Theater Support Contracting Command (JTSCC) to obtain bulk concrete for Bagram 

Airfield, Parwan Province, Afghanistan (R4, tab 1 at 50). The contract incorporated by 

reference FAR 52.233-1, DISPUTES (MAY 2014) and FAR 52.249-10, DEFAULT (FIXEDPRICE CONSTRUCTION) (APRIL 1984) (R4, tab 1 at 32-33). 
2. The contract required Sang Kash to supply and deliver quantities of bulk 

concrete as requested by JTSCC. The contract did not include a guaranteed minimum 

quantity and explicitly stated that the quantities set forth in the schedule were estimates. 

The following clauses were incorporated into the text of the contract: 52.216-19, ORDER 

LIMITATIONS (OCT 1995) and 52.216-21, REQUIREMENTS (OCT 1995) (R4, tab 1 

at 33-35). Clause 52.216-19 states, in relevant part: "(a) Minimum order. When the 

Government requires supplies or services covered by this contract in an amount of less 

than O cm ( quantity), the Government is not obligated to purchase, nor is the Contractor 

obligated to furnish, those supplies or services under the contract" (R4, tab 1 at 34) 

( emphasis in original). Clause 52.216-21 states, in relevant part: 

(a) This is a requirements contract for the supplies or services 

specified.... The quantities of supplies or services specified in 

the Schedule are estimates only and are not purchased by this 

contract. Except as this contract may otherwise provide, if 

the Government's requirements do not result in orders in the 

quantities described as "estimated" or "maximum" in the 

Schedule, that fact shall not constitute the basis for an 

equitable price adjustment. 

Id. The statement of work (SOW), written into the contract, states in Section 1.1.1 that 

the purpose of the contract is: "to obtain bulk concrete for Bagram Airfield. All 

other requirements listed in the Statement of Work (SOW) are secondary and not 

guaranteed." (R4, tab 1 at 50) (emphasis in original) SOW Sections 2.23-2.34 address 

access to military installations and bases in Afghanistan (R4, tab 1 at 56-57). SOW 

Section 2.28 states that "Contracting officers may terminate contractors when contractors 

lose the ability to access the work site" (R4, tab 1 at 57). 

3. Bilateral Modification No. P00002, dated November 10, 2015, added Central 

Command (CENTCOM) clause 5152.225-5916 MANDATORY ELIGIBILITY FOR 

INSTALLATION ACCESS (OCT 2015) in full text, to the contract (R4, tab 14). The clause 

required the prime contractor and all subcontractors to be initially eligible for installation 

access to a U.S. and/or coalition installation, and to remain eligible during the entire 

period of contract performance. The clause stated, in relevant part: 

5152.225-5916 

MANDATORY ELIGIBILITY FOR INSTALLATION 

ACCESS 

(OCT 2015) 

(a) U.S. and Coalition Commanders possess inherent 

authority to maintain law and order, provide security, and 

impose discipline necessary to protect the inhabitants of U.S. 

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and/or Coalition installations, U.S. and Coalition personnel 

operating outside of installations, and U.S. or Coalitionfunded developmental projects in Afghanistan. This authority 

allows commanders to administratively and physically control 

access to installations and/or project sites, and to bar 

contractors - including prime contractors, subcontractors at 

any tier, and any employees, from an installation or site. A 

commander's inherent force protection (FP) authority is 

independent of an agency's contracting authority, and it may 

not be superseded by any contractual term or provision. 

(b) The prime Contractor/Vendor acknowledges that: 

submission of a bid, offer, or a proposal; acceptance of 

contract award of any type; or continuing effort under any 

contract that includes this clause; requires that the prime 

Contractor/Vendor, and all subcontractors under any affected 

contracts be initially eligible -- and remain eligible during the 

entire period of contract performance to include any warranty 

period -- for installation access to a U.S. and/or Coalition 

installation, regardless of whether the performance will take 

place on or off a U.S. or Coalition installation. 

(2) Failure to be approved in JCCS -- and thereby be eligible 

for installation access at the prime and subcontractor levels --

or failure to inform the contracting officer of the names of all 

prospective subcontractors (or provide a negative reply), may 

render the offeror/contractor ineligible for award or continued 

performance. Additionally, any firm that is declared 

ineligible for installation access will be deemed nonresponsible until such time as that firm is again deemed 

eligible by the appropriate access approval authority. 

( d) Installation access determinations arise from the 

Combatant Commander's inherent authority and are separate 

and distinct from any law, regulation, or policy regarding 

suspension and debarment authority. Contractor queries or 

requests for reconsideration related to U.S. or Coalition 

installation base access eligibility must be directed to the 

authority responsible for base access decisions. 

(R4, tab 14 at 2) 

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4. By letter dated March 25, 2016, the Bagram Support Group (BSG) Commander 

of Bagram Airfield revoked Sang Kash' s access to Bagram Airfield, stating, in relevant 

part: 

Base Access Denial from Bagram Airfield, Afghanistan ... 

2. Pursuant to the above references and my authority 

delegated to me by the Senior Commander ofBagram 

Airfield, you are hereby base access denied from Bagram 

Airfield, Afghanistan effective immediately. You are granted 

provisional access in order to remove personnel and 

equipment from the base for a time period not to exceed ten 

(10) days from the date of this memorandum. 

3. Violation of this order may result in criminal prosecution 

for trespassing under reference a. You may request, within 

(60) days of receipt of this notice, that this order be 

reconsidered by writing me through the United States ForcesAfghanistan (USFOR-A) Force Protection Cell. 

5. Pursuant to USFOR-A/RS policy, your base access denial 

from this installation will apply to all USFOR-NRS 

installations in the Combined Joint Operations AreaAfghanistan. (CJOA-A), [sic] and will be uniformly enforced 

by each installation. 

(R4, tab 19) ( emphasis in original) 

5. Pursuant to contract Modification No. P00003, dated March 29, 2016, the 

contracting officer (CO) terminated the contract for default for"[ v ]iolation of Contract 

Clause 5152.225-5916 Mandatory Eligibility for Base Access" and cited to FAR clause 

52.249-10 (Default) (R4, tab 21 at 2). The final decision included the standard appeal 

rights set forth at FAR 33.21 l(a)(4)(v), CONTRACTING OFFICERS DECISION (R4, tab 21 

at 2-3). The modification is countersigned as being received by Sang Kash's 

representative (R4, tab 21 at 1, 3). 

6. By letter dated March 30, 2016, the CO explained Modification No. P00003 to 

appellant, stating that Sang Kash' s status in the Joint Contracting and Contingency 

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System (JCCS) had not been approved and its "Vendor Vetting Status" was an 

"Unacceptable Risk" (R4, tab 20). 

7. By email to the contracting officer dated April 10, 2016, Sang Kash's 

representative requested that the BSG Commander of Bagram Airfield reconsider its base 

access denial. Attached to its email were supporting documents. (R4, tab 25) There is 

no evidence in the record that Sang Kash asserted that it was an approved contractor in 

JCCS. 

8. On April 13, 2016, Sang Kash appealed the termination to the Board. The 

Board docketed Sang Kash's appeal as ASBCA No. 60532. 

9. By letter dated May 10, 2016, the BSG Commander of Bagram Airfield denied 

Sang Kash' s request for base access reconsideration, stating, in relevant part: 

After reviewing your request and the underlying basis for 

denial, I have determined that the original denial was based 

on substantiated information. Additionally, I have not been 

provided any supplementary information which would alter 

my original decision. As the BSG Commander, I have the 

inherent authority to protect my forces and you have been 

assessed as a risk to the welfare of the installation's 

personnel. Your request for reconsideration is denied and your 

base access denial status is affirmed. 

(R4, tab 27) 

DECISION 

I. Standard Of Review For Motion For Summary Judgment 

We will grant summary judgment only if there is no genuine issue as to any 

material fact, and the moving party is entitled to judgment as a matter of law. Celotex 

Corp. v. Catrett, 477 U.S. 317,322 (1986); Colonna 's Shipyard, Inc., ASBCA 

No. 59987 et al., 16-1BCA136,518 at 177,902. A material fact is one that may affect 

the outcome of the decision. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248-49 (1986); Colonna's Shipyard, Inc., 16-1BCA136,518 at 177,902. The moving 

party bears the burden of establishing the absence of any genuine issue of material fact, 

and all significant doubt over factual issues must be resolved in favor of the party 

opposing summary judgment. Mingus Constructors, Inc. v. United States, 

812 F.2d 1387, 1390-91 (Fed. Cir. 1987); Colonna 's Shipyard, Inc., 16-1BCA136,518 

at 177,902. Once the moving party has met its burden of establishing the absence of 

disputed material facts, then the non-moving party must set forth specific facts, not 

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conclusory statements or bare assertions, to defeat the motion. Pure Gold, Inc. v. Syntex 

(US.A.), Inc., 739 F.2d 624, 626-27 (Fed. Cir. 1984); Colonna 's Shipyard, Inc., 16-1 

BCA ,i 36,518 at 177,902. 

II. The Parties' Contentions 

The government moves for summary judgment arguing "there is no dispute that 

the appellant failed to maintain access to the base where it was obligated to perform" 

(gov't mot. at 1 ). The government contends that the contract was bilaterally amended to 

include CENTCOM clause 5152.225-5916 (Mandatory Eligibility for Installation 

Access) requiring "that Sang Kash must maintain access to the installation in order to 

perform work under awarded task orders" (gov't mot. at 7). "The Government 

terminated Sang Kash because the base commander took independent action for a valid, 

sovereign reason to ensure force protection .... [ and] the contracting officer properly 

terminated Sang Kash for defaulf' (gov't mot. at 7-8). 

Although not clearly articulated by appellant, the Board interprets its reply to the 

government's motion and understands its argument to be that the BSG Commander, who 

revoked appellant's base access, was not separate from the contracting officer and the 

contract was terminated to get around the guaranteed concrete orders "for convenience" 

of the government (app. resp. at 1-5, 10). Appellant states that the awarded contract was 

a "[g]uaranty for bulk concrete" estimated to be 15,000 cubic yards while JTSCC had 

purchased only 128 cubic meters through the base year (app. resp. at 1). In addition, the 

Board further interprets appellant's argument to include a due process concern. 

Appellant argues that "we have the right to know why our installation access was 

denied,'' as the BSG Commander's base access denial did not articulate specific facts in 

his revocation and he summarily determined that appellant was a security "risk" 

(app. resp. at 9). Appellant argues that although its base access was revoked, "most of 

our on[-]site key personnel are hired immediately by another company inside Bagram Air 

base." Appellant listed the names and badge numbers of six employees who were 

allegedly hired by another company and gained access to Bagram Air Base (app. resp. 

at 10). Appellant requests that "the Board should enter judgment in favor of ... [it] given 

that there is no reason that Sang Kash Company posses[s a] risk to [the] welfare of 

installation personnel but a falsified information, misuse of authority, and favoritism lead 

to termination of [the] contract" which we interpret as a cross-motion for summary 

judgment (app. resp. at 10). 

III. There Are No Material Facts In Dispute 

Appellant alleges that the BSG Commander revoked its base access as a method to 

terminate the contract for default, because JTSCC was failing to order the requisite 

guaranteed amount of concrete. It is undisputed that the contract is a requirements 

contract and did not include a minimum quantity. Nowhere in the contract does it state a 

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minimum amount of concrete will be delivered and installed during the base year. The 

contract expressly states that the bulk concrete contract line item numbers are estimates 

and are not guaranteed. (SOF ,i 2) The record does not support appellant's versions of 

the facts sufficient to show material facts are in dispute, nor does the record support 

appellant's allegations of alternative reasons for the contract termination. Appellant has 

not provided any evidence that JTSCC intended to nullify its contract rights or that the 

termination provided JTSCC an economic advantage. The government has met its 

burden of establishing the absence of disputed material facts. New Era Contract Sales, 

Inc., ASBCA No. 56204, 09-2 BCA ,i 34,147 at 168,795; Emerald Town Group Logistic 

Services, ASBCA Nos. 60300. 60302, 17-1 BCA i! 36,709 at 178,753-55. 

IV Discussion 

It is undisputed that the parties bilaterally agreed to incorporate CENTCOM 

clause 5152 .225-5916, which required the contractor to maintain its base access 

eligibility during the entire period of contract performance, into the contract (SOF ,i 3). 

CENTCOM clause 5152.225-5916 provides that contractors who were found ineligible 

for base access "may render the []contractor ineligible for. .. continued performance ... " 

(id.). It is undisputed that the contract required appellant to maintain access to the site or 

the contract could be terminated for default (SOF ,i,i 2, 3). Acting upon the commander's 

authority, appellant's base access privileges were revoked (SOF ,i 4). Appellant does not 

dispute that its base access was revoked and that it failed to maintain access to Bagram 

Airfield. per the contract. 

Appellant's allegations that JTSCC terminated the contract as a means to get 

around the ·'guaranteed" or minimum requirements of bulk concrete orders (app. resp. 

at 1, 9) are not supported by the contract or the record (SOF ,i,i 3, 4). Clause 52.216-19 

stated that JTSCC is not obligated to order supplies/services if it has no need (SOF ,i 2). 

In support of its opposition, appellant offered exhibits that do not add anything to the 

discussion nor do they show any facts that may be in dispute regarding the termination 

(app. resp. at 3-8). 

Appellant has raised a due process concern, arguing ··we have the right to know 

why our installation access was denied" (app. resp. at 9). Due process normally requires 

that a contractor receive notice of the charges impugning its integrity and an opportunity 

to be heard. Old Dominion Dairy Products, Inc. v. Secretary of Defense, 631 F.2d 953, 

968 (D.C. Cir. 1980); Leslie & Elliott Company, Inc. v. Garrett, 732 F.Supp. 191, 

198 (D.D.C. 1990). However, the requirements of due process vary given the 

circumstances. Morrissey v. Brewer, 408 U.S. 471,481 (1972) ("[D]ue process is 

flexible and calls for such procedural protections as the particular situation demands."). 

Installation access decisions are military command decisions. It is well 

established that the commanding officer of a military base has wide discretion as to 

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whom he or she can exclude from the base. Cafeteria & Restaurant Workers Union, 

Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 893-94 (1961) (recognizing power of 

post commander recognized when revocation of employee's security access to 

installation upon the security officer's determination that she failed to meet the security 

requirements of the activity; "It is well settled that a Post Commander can, under the 

authority conferred on him by statutes and regulations, in his discretion, exclude private 

persons and property therefrom, or admit them under such restrictions as he may 

prescribe in the interest of good order and military discipline."); Garco Construction Inc., 

ASBCA No. 57796, 14-1 BCA ii 35,512 at 174,073 (several contractor's personnel 

installation access were revoked after implementing a policy to deny base access to 

individuals ;'having outstanding wants or warrants, sex offenders, violent offenders, those 

who are on probation, and those who are in a pre-release program'' where ;'the purpose of 

[the] policy was to ensure the safety of personnel on the installation and preserve the 

good order and discipline on the installation."); Conner Brothers Construction Company, 

Inc., ASBCA No. 54109, 07-2 BCA ii 33,703 at 166,876; 166,878 (affirmed by Conner 

Brothers Construction Company, Inc. v. Geren, 550 F.3d 1368 (Fed. Cir. 2008) (allowing 

base commander to deny access to construction company to installation site for 41 days 

following the terrorist attacks of September 11, 2001, which "the purpose of the order 

was to serve national policy objectives, not to relieve the Corps of its contractual 

obligations."); Emerald Town Group Logistic Services, 17-1 BCA ii 36,709 at 178, 753-54 

(termination after contractor's base access was revoked after a determination that "its 

operations have been determined to be a force protection threat to US and Coalition 

Forces at Kandahar Airfield."); Gargoyles, Inc., ASBCA No. 57515, 13 BCA ii 35,330 at 

173,415-16 (Contract was properly terminated when the contractor was unable to obtain 

access to U.S. military installation in Iraq to deliver 56 light armored vehicles). 

A determination of installation access is a matter of inherent command authority 

and is not at the discretion of the contracting officer or this Board. The Board will not 

question a military commander's revocation of base access unless appellant can provide 

substantiated facts to support the contract was terminated to nullify contract rights or to 

provide the government with economic gain. Conner Brothers Construction Company, 

550 F.3d at 1374-75. In this appeal, because there was no required minimum quantity the 

BSG Commander's decision to revoke appellant's base access would not have nullified 

appellant's contract rights or provided JTSCC an economic advantage. The fact that the 

actions of the government entity that controlled base access were beyond appellant's 

control is not a valid excuse for non-performance. Emerald Town Group Logistic 

Services, 17-1 BCA ii 36,709 at 178,753-54. 

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CONCLUSION 

The government's motion for summary judgment is granted. The appeal is denied. 

Dated: June 1 L 2019 

Administrative Judge 

Chairman 

Armed Services Board 

of Contract Appeals 

1/"'· :Z) .1-- ·---

Kt{WNi?rti f1.~ow 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

~---·······--

OWEN C. WILSON 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

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

Armed Services Board of Contract Appeals in ASBCA No. 60532, Appeal of Sang Kash 

Company. rendered in conformance with the Board's Charter. 

Dated: 

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--------------------·--

PAULLA K. GATES-LEWIS 

Recorder, Armed Services 

Board of Contract Appeals