ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) Lael Al Sahab & Co. ) ) Under Contract No. W91GET-06-M-0063 ) APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 58346

Mr. Alie Sufan

Owner Raymond M. Saunders, Esq.

Army ChiefTrial Attorney CPT Vera A. Strebel JA

Trial Attorney OPINION BYADMINISTRATIVE JUDGE MELNICK Appellant, Lael Al Sahab & Co., seeks completepayment for workupon a contract toprovide street cleaning and grounds maintenance in Iraq. The government withheld a portion ofthe payments sought because ofinadequate performance. The Boardpreviously dismissed most ofthe appeal for lack of jurisdiction. However, appellant was permitted toproceed with a claim for $8,250 thatthe government withheld from its payment oftwo invoices totaling $30,000. LaelAlSahab & Co., ASBCANo. 58346, 13 BCA

### if 35,394. Afterthe parties chose to proceed under Board Rule 11, the governmentrepresented that it did not contest $3,750 ofthe amount claimed. The government has demonstrated thatthe additional $4,500 was properly withheld. Appellant is therefore entitled to recover $3,750, plus CDA interest.
FINDINGS OF FACT 1. On 21 March 2007, appellant entered into the commercial items contract identified above withthe Joint Contracting Command-Iraq (government).* The contract was for street cleaning and grounds maintenance services. Appellant was to be paid $15,000 per month. (R4, tab 1) Section 11.1 ofthe contract's Statement of Work providedthat the government would "not make a full payment ifthe contractor does notperform to the specification ofthe contract" (R4, tab 1 (Statement ofWork at 4)). Itcontinued to say:

* While the contract number is W91GET-06-M-0063, at times the parties' referred to it as W91GET-07-M-0063 (R4, tabs 2, 7).In a case where only partial work was completed, apartial paymentwill be made. Partial payments may be exercised ifthe contractor does notprovide the stated workforce or does not clean each street outlined. (R4, tab 1 (Statement ofWork at 4)). 2. Appellant's first $15,000 invoice was for the period 21March2007 until 20 April (R4, tab 3). The contracting officer determined that appellant was entitled to the full payment (R4, tab 3, 5, 15 at 2). Nevertheless, the government withheld $3,750, paying appellant $11,250 (R4, tabs 3, 9). 3. Appellant did notprovide complete trash removal and ground maintenance services during May of2007. That failure was documented in a memorandum to appellant dated 9 May 2007, and by daily logs showing repeated failures to perform grounds maintenance and remove all litter and debris, prepared by the government's inspectorbetween 12 and 31 May (R4, tabs 4, 5, 15 at 2). Appellant did not clean 30 percent ofthe required area (R4, tab 15 at 2). On 20 May 2007, appellant submitted a second invoice for $15,000. However, because appellant did not completely perform the contract's requirements, paymentwas reduced by 30 percent, or $4,500, to $10,500 (R4, tabs 3, 15 at 2). 4. The government terminated the contract for cause on 5 June 2007 (R4, tab 7). Onthat date, appellant submitted a claim tothe contracting officer seeking, among other things, the $8,250 withheld from the two invoice payments (R4, tab 9). See Lael AlSahab, 13 BCA**~** 35,394 at 173,661-63. By email dated 4 October 2012, appellant filed a notice ofappeal seeking $1,011,000. The Board has already dismissed the majority ofthe appeal, except for the $8,250 withheld from the first two invoices. Id. at 173,662-64. DECISION The contracting officer approved payment ofthe entire $15,000 sought in the first invoice and the government does not contestthat appellant is entitled to the full payment (finding 2). Accordingly, appellant is entitled to recover the $3,750 withheld by the government. The contract entitled the governmentto make partial payments in the event only part ofthe contract work was performed (finding 1). Appellant neglected to perform 30 percent ofits contract obligations during May of2007, and provides no explanation for that failure (finding 3). Nor does it give any indication that the government's 30 percent withholding from its payment ofthe second invoice was unjustified. The government has proven that the withholding "reasonably represented the reduced value ofappellant's performance."

2Wright'sAutoRepair, Inc., ASBCANos. 29138, 31372,**88-1BCA~20,449** at 103,425. Accordingly, appellant's claim for the $4,500 withheld from the second invoice is denied.
CONCLUSION Appellant is entitled to recover $3,750, plus interest under 41 U.S.C. § 7109 from 5 June 2007. Otherwise, the appeal is denied. Dated: 17 February 2016

I concur

# ~~ Administrative Judge Acting Chairman Armed Services Board ofContractAppeals

# ~(!VJ( MARKA. MELNICK Administrative Judge Armed Services Board ofContractAppeals

I concur

# ~CKLEFORD 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 ofContractAppeals in ASBCA No. 58346, Appeal ofLael Al Sahab & Co., rendered in conformance with the Board's Charter. Dated:

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