ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) Sang Kash Company ) ) Under ContractNo. W9

### lB4N-l5-D-8013 )
APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCANo. 60532

Mr. Abdul Bari

President Raymond M. Saunders, Esq.

Army ChiefTrial Attorney MAJ Ronald M. Herrmann, JA

Trial Attorney
OPINIONBYADMINISTRATIVEJUDGE WOODROW ON THE PARTIES' MOTIONS FOR SUMMARYJUDGMENT
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 ofbulk concrete with Sang Kash after Sang Kash lost its base access privileges to Bagram Airfield, Afghanistan. Pendingbefore the Board is the Army's motion for summaryjudgmentand 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 orderto performworkunder awarded task orders (R4, tab 14). Afterthe Senior Commanderof BagramAirfield Afghanistan revoked appellant's base access, the contracting officer terminated the contract for default. Appellant appealed the termination for default arguingthat: (i) its base access privileges were revoked as a means for the governmentto nullify its contract rights; and (ii) appellant was deprived due process rights.
We grantthe government's motion for summaryjudgmentand deny the appeal.
STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION 1. ContractNo. 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 SupportContracting Command (JTSCC) to obtainbulk concrete for Bagram Airfield, ParwanProvince, Afghanistan (R4, tab 1at 50). The contract incorporatedby reference FAR 52.233-1, DISPUTES (MAY 2014) and FAR 52.249-10, DEFAULT (FIXEDPRICE CONSTRUCTION) (APRIL 1984) (R4, tab 1at 32-33).2. The contract required Sang Kash to supply and deliver quantities ofbulk 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 ofthe 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 relevantpart: "(a) Minimum order. When the Government requires supplies or services covered bythis contract in an amount ofless than O

### cm (quantity), the Government is not obligated to purchase, nor is the Contractor obligated to furnish, those supplies or services underthe 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 ofsupplies or services specified in the Schedule are estimates only and are notpurchasedbythis contract. Except as this contract may otherwise provide, if the Government's requirements do notresult 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 ofwork (SOW), written into the contract, states in Section 1.1.1 that the purpose ofthe contract is: 

### "to obtain bulkconcrete for Bagram Airfield. All other requirements listed in the Statement ofWork (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 "Contractingofficers may terminate contractors when contractors lose the ability to access the work site" (R4, tab 1at 57).
3. Bilateral ModificationNo. P00002, dated November 10, 2015, added Central Command (CENTCOM) clause 5152.225-5916 MANDATORY ELIGIBILITY FOR INSTALLATION ACCESS (OCT 2015) in full text, tothe 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, andto remain eligible during the entire period ofcontractperformance. The clause stated, in relevantpart: 5152.225-5916 MANDATORYELIGIBILITYFOR INSTALLATION ACCESS (OCT 2015) (a) U.S. and Coalition Commanderspossess inherent authority to maintain law and order, provide security, and impose discipline necessary to protectthe inhabitants ofU.S.

2and/or Coalition installations, U.S. and Coalition personnel operating outside ofinstallations, and U.S. or Coalitionfunded developmental projects in Afghanistan. This authority allows commanders to administratively and physically control access to installations and/orproject 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 ofan agency's contracting authority, and it may notbe supersededby any contractual term orprovision. (b) Theprime Contractor/Vendor acknowledges that: submission ofa bid, offer, or a proposal; acceptance of contract award ofany type; orcontinuing effortunder any contractthat includes this clause; requires that the prime Contractor/Vendor, and all subcontractors under any affected contracts be initially eligible

-- and remain eligible during the entireperiod ofcontractperformance to include any warranty period

-- for installation access to a U.S. and/or Coalition installation, regardless ofwhetherthe performance will take place on or offa 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 ofthe names ofall prospective subcontractors (orprovide a negative reply), may renderthe 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, orpolicy regarding suspension and debarment authority. Contractorqueries or requests for reconsideration related to U.S. or Coalition installation base access eligibility mustbe directed to the authority responsible for base access decisions. (R4, tab 14 at 2)

3

### 4. By letter dated March 25, 2016, the Bagram Support Group (BSG) Commander ofBagram 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 delegatedto me by the SeniorCommander ofBagram Airfield, you are hereby base access denied from Bagram Airfield, Afghanistan effective immediately. You are granted provisional access in orderto remove personnel and equipment from the base for a time period not to exceed ten (10) days from the date ofthis memorandum.
3. Violation ofthis order may result in criminal prosecution for trespassing underreference a. You may request, within (60) days ofreceipt ofthis notice, that this orderbe reconsidered by writing me through the United States ForcesAfghanistan (USFOR-A) Force Protection Cell.

5. Pursuant to USFOR-A/RS policy, yourbase access denial from this installation will apply to all USFOR-NRS installations in the CombinedJoint Operations AreaAfghanistan. (CJOA-A), [sic] and will be uniformly enforced by each installation. (R4, tab 19) (emphasis in original) 5. Pursuantto contract Modification No. P00003, dated March 29, 2016, the contracting officer (CO) terminated the contract for default for"[v]iolation ofContract Clause 5152.225-5916 Mandatory Eligibility for Base Access" and cited to FARclause 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

4

### 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 datedApril 10, 2016, Sang Kash's representative requested that the BSG CommanderofBagram 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 ofBagram Airfield denied Sang Kash'srequest for base access reconsideration, stating, in relevant part: Afterreviewing yourrequest and the underlying basis for denial, Ihave determined that the original denial was based on substantiated information. Additionally, Ihave not been provided any supplementary information which would alter my original decision. As the BSG Commander, I have the inherent authority toprotect my forces and you have been assessed as a risk tothe welfare ofthe installation's personnel. Yourrequest for reconsideration is denied and your base access denial status is affirmed. (R4, tab 27)
DECISION
I. 

### Standard Of Review For Motion For SummaryJudgment
We will grant summaryjudgmentonly ifthere is no genuine issue as to any material fact, and the moving party is entitled tojudgmentas a matter oflaw. 

### Celotex Corp. v. Catrett, 477 U.S. 317,322 (1986); 

### Colonna 's Shipyard, Inc., ASBCA No. 59987 

### etal., 16-1BCA136,518 at 177,902. A material fact is one that may affect the outcome ofthe decision. 

### Anderson v. LibertyLobby, Inc., 477 U.S. 242, 248-49 (1986); 

### Colonna's Shipyard, Inc., 16-1BCA136,518 at 177,902. The moving party bears the burden ofestablishingthe absence ofany genuine issue ofmaterial fact, and all significant doubt over factual issues must be resolved in favor ofthe party opposing summaryjudgment. 

### Mingus Constructors, Inc. v. UnitedStates, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987); 

### Colonna 's Shipyard, Inc., 16-1BCA136,518 at 177,902. Once the movingparty has met its burden ofestablishingthe absence of disputed material facts, then the non-movingparty must set forth specific facts, not

5

### conclusory statements orbare 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 summaryjudgment arguing "there is no dispute that the appellant failed to maintain access to the base where it was obligatedto 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 orderto perform workunder awarded task orders" (gov'tmot. at 7). "The Government terminated Sang Kash because the base commandertook independent action for a valid, sovereign reason to ensure force protection

....[and] the contracting officerproperly terminated Sang Kash for defaulf' (gov'tmot. 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 "forconvenience" ofthe government (app. resp. at 1-5, 10). Appellant states that the awarded contractwas a "[g]uaranty for bulk concrete" estimatedto 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 "wehave 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 appellantwas 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 BagramAir base." Appellant listed the names and badge numbers ofsix employees who were allegedly hired by another company and gained access to Bagram AirBase (app. resp. at 10). Appellant requests that "theBoard should enterjudgmentin 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 ofauthority, and favoritism lead to termination of[the] contract" which we interpret as a cross-motion for summary judgment (app. resp. at 10).
III. There AreNo Material Facts In Dispute 

### Appellant alleges that the BSG Commanderrevoked its base access as a method to terminate the contract for default, becauseJTSCC was failing to orderthe requisite guaranteed amount ofconcrete. 

### 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

6minimum amount ofconcrete will be delivered and installed during thebase year. The contract expressly states that the bulk concrete contract line item numbers are estimates and are not guaranteed. (SOF ,i 2) Therecord 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 ofalternative reasons for the contract termination. Appellant has notprovided any evidence that JTSCC intended to nullify its contract rights orthat the termination providedJTSCC an economic advantage. The governmenthas met its burden ofestablishingthe absence ofdisputed material facts. New Era ContractSales, 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 thatthe parties bilaterally agreed to incorporate CENTCOM clause 5152.225-5916, which required the contractorto maintain its base access eligibility during the entireperiod ofcontractperformance, into the contract (SOF ,i 3). CENTCOM clause 5152.225-5916provides that contractors whowere found ineligible for base access "mayrenderthe []contractor ineligible for.

.. continued performance

..." (id.). 

### It is undisputedthatthe contract required appellant to maintain access to the site or the contract couldbeterminated 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. perthe contract. Appellant's allegations that JTSCC terminated the contract as a means to get around the ·'guaranteed" orminimum requirements ofbulk concrete orders (app. resp. at 1, 9) are not supportedby the contract orthe record (SOF ,i,i 3, 4). Clause 52.216-19 stated that JTSCC is not obligated to order supplies/services ifit has no need (SOF ,i 2). In support ofits 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 contractorreceive notice ofthe charges impugning its integrity and an opportunity to be heard. OldDominionDairyProducts, 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 ofdue process vary given the circumstances. Morrissey v. Brewer, 408 U.S. 471,481 (1972) ("[D]ue process is flexible and calls for suchprocedural protections as theparticular situation demands.").
Installation access decisions are military command decisions. 

### It is well established that the commanding officer ofa military base has wide discretion as to

7whom he or she can exclude from the base. 

### Cafeteria 

### &Restaurant Workers Union, Local473, AFL-CIOv. McElroy, 367 U.S. 886, 893-94 (1961) (recognizing power of post commanderrecognized when revocation ofemployee's security access to installation upon the security officer's determination that she failed to meetthe security requirements ofthe activity; "It is well settled that a Post Commandercan, under the authority conferred on him by statutes and regulations, in his discretion, exclude private persons and property therefrom, or admitthem under such restrictions as he may prescribe in the interest ofgood order and military discipline."); 

### Garco ConstructionInc., ASBCA No. 57796, 14-1 BCA

## ii 35,512 at 174,073 (several contractor'spersonnel installation access were revoked after implementing a policy to deny base access to individuals ;'having outstandingwants or warrants, sex offenders, violent offenders, those who are on probation, andthose who are in a pre-release program'' where ;'the purpose of [the] policy was to ensurethe safety ofpersonnel on the installation andpreserve the good order and discipline onthe installation."); 

### Conner Brothers Construction Company, Inc., ASBCANo. 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 commanderto deny access to construction company to installation site for 41 days following the terrorist attacks ofSeptember 11, 2001, which "the purpose ofthe order was to serve national policy objectives, not to relieve the Corps ofits 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 contractorwas unable to obtain access to U.S. military installation in Iraq to deliver 56 light armored vehicles).
A determination ofinstallation access is a matter ofinherent command authority and is not at the discretion ofthe contracting officer orthis Board. The Boardwill not question a military commander's revocation ofbase access unless appellant can provide substantiated facts to supportthe contract was terminated to nullify contractrights or to provide the governmentwith economic gain. 

### ConnerBrothers 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 contractrights orprovided JTSCC an economic advantage. The fact that the actions ofthe government entitythat controlled base access were beyond appellant's control is not a valid excuse for non-performance. 

### Emerald Town GroupLogistic Services, 17-1 BCA

## ii 36,709 at 178,753-54.

8CONCLUSION
The government's motion for summaryjudgment is granted. The appeal is denied.
Dated: June 1

### L2019

Administrative Judge Chairman Armed Services Board ofContractAppeals 

### 1/"'· 

# :Z) .1-- ·--- 

# Kt{WNi?rtif1.~ow Administrative Judge Armed Services Board ofContract Appeals
I concur

~---·······-- OWEN C. WILSON Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No. 60532, Appeal ofSang Kash Company. rendered in conformance with the Board's Charter.
Dated:

9 ---------- ----------·-- PAULLA K. GATES-LEWIS Recorder, Armed Services Board ofContract Appeals