ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeals of

-- MOQA-AQYOL JV, LTD.
Under ContractNo. W5J9JE-1O-C-0031
APPEARANCE FORTHE APPELLANT: ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCA Nos. 57963, 60456

Thomas J. Fraser, Jr., Esq.

Eavenson, Fraser, Lunsford & Ivan Jacksonville, FL
Thomas J. Warren, Esq.

Acting Engineer ChiefTrial Attorney Daniel B. McConnell, Esq. Rebecca L. Bockmann, Esq.

EngineerTrial Attorneys U.S. Army Engineer District, Middle East Winchester, VA
OPINION BYADMINISTRATIVEJUDGE O'CONNELL
These appeals arise from a contract to build an Afghanistan National Police Uniformed Police DistrictHeadquarters facility in Dasht-e Qal'eh, TakharProvince, Afghanistan. The government'stermination for default is at issue in ASBCA No. 57963 and appellant's monetary claim in ASBCA No. 60456. The Board conducted ahearing from 6-18 January 2017 in Falls Church, Virginia. Afterproviding the parties the opportunity to file post-hearingbriefs, the Boardheard closing arguments on 15 June 2017. We deny the appeals.
FINDINGS OF FACT
I. The Contract
1. On 5 May 2010, the U.S. Army Corp ofEngineers (Corps or USACE) awarded appellant, MOQA-AQYOL JV LTD. (MOQA), a contract to adapt a USACE design for
a districtheadquarters compound that consisted ofa one-story building for 60 police, a dining facility, berthing and offices/conference areas, armory andjail cells, force protection structures, electrical system, plumbing/sewage system, and water system (R4, tab 7 at 36, 41-42; tr. 4/210, 7 /223-24).
2. The original contractprice was $1,490,804.67, with a term of365 days plus weather days as specifiedperprovince (R4, tab 7 at 2, 33, 36). The original contract failedto include TakharProvince, however (see id. at 159-61), and thus failed to include the required weather days. The Corps corrected this a year later in Modification No. A00003, which, in relevantpart, added 62 calendar days to the contractterm (R4, tab 11 at 2).
3. A few words on projectparticipants are in order because they illustrate the challenges in buildingthis project. Atthe hearing the Corps presented testimony from five ofits employees but none ofthem actually went to the project site because it was deemedtoo dangerous for American civilians (tr. 1/34, 2115). The Corps monitoredthe site from aresident office in Kunduz (tr. 1/33) and headquarters in Kabul (tr. 2/76, 4/267, 294, 323). The Corps employees were stretched thin; its quality assurance representative testified that he was responsible for 20 projects (tr. 2115-16).
4. Through a separate contractthe Corps retained native Afghans to act as its eyes and ears onthe site; specifically, a local national quality assurance representative (LNQA), who was supervisedby a local national project engineerwho, in turn, was supervised by a local national deputy resident engineer (tr. 2/16-17, 4/245). The LNQA sent the USACE quality assurance representative a daily report and photos (tr. 1/34, 2115). Neither party presented testimony from these contract employees. The main LNQA, Habibullah Khadaam (see R4, tab 456), is a source ofconsiderable controversy; as we will discuss, depending on who you believe, Mr. Khadaam is either a competent young man who was perhaps too patientwith MOQA or a disgruntled former MOQA employee lookingto settle a score.
5. Dueto the work load ofCorps employees, the Corps also retained Michael BakerJr., Inc., to review schedules (tr. 1/49), but no employees ofthat firm testified even though scheduling issues are in dispute. Similarly, although geotechnical and design-related issues played a prominentrole on this project, neitherparty presented testimony from a designer or geotechnical professional. Two employees ofMOQA testified, its president and chiefexecutive officer, Murad Hamidi, and its program manager from August to October 2011, Jonathan Griffin (tr. 5/283). Mr. Griffin testified thathe wentto the site onjusttwo occasions, including once with Mr. Hamidi (tr. 5/317). There is no evidence that Mr. Hamidi made additional site visits.

6. Afterthe Corps terminated MOQA for default, it retained another contractor to complete the project, which it also terminated (R4, tab 202). A third contractor completed the work (R4, tab 211). Although MOQA's monetary claim is based in large part on materials and equipment left on site, and work successfully completed, no one from either ofthe replacement contractors testified.
II. Delays and OtherProblems

7. The project suffered from a number ofdelays and the Corps found fault with a number ofaspects ofMOQA'sperformance. The Corps terminated the contract about

2three weeks before the 22 November 2011 completion date (on 31 October 2011). MOQA concedes that it could not completethe projectby 22 November; its expert projected a completion date of27 May 2012 (tr. 7/234). The dispute lies in which party· was responsible for delaying the project so that it could not be completeduntil six months (or more) afterthe scheduled completion. An overview ofthe delay issues is as follows.
A. The License for Construction Delay
8. The Corps issued a notice to proceed with work to begin on 20 May 20I0 (R4, tab 21), but the contracting officer soon had to suspend all work (on 2 7 May) because the Corps had not obtained a license for construction (R4, tabs 23, 26; tr. 3/186). The Corps obtained the license and ordered MOQA to resume work on 25 August 2010 (R4, tab 34). Theparties subsequently executed bilateral Modification No. (Mod.) A00002 on 8 December 2010 that added 92 days and $190,450 to the contract (R4, tab 10). The modification providedthat:
Itis further understood and agreed thatthis adjustment constitutes compensation in full on behalfofthe Contractor

...for all costs and markups directly or indirectly attributable for the change ordered, for all delays related thereto

...and for performance ofthe change within the time frame stated. (Id. at 2) (Emphasis added) ("Release Language")

B. The Compound Size Change
9. The contractrequired construction ofthe compound in a maximum 7 5 x 7 5 meter area (R4, tab 7 at 42), butthe license for constructionprovided for a 70 x 130 meter area (R4, tab 51). Although MOQA contends in its brief(page 14) that the Corps did nottell MOQA aboutthe size change until 13 January 2011, the record demonstrates that MOQAknew aboutthe change by June 2010 (R4, tab 288 at 10-12, tab 502 at 64; tr. 7 /50-52).
10. On 18 January 2011, the Corps issued arequest for proposals (RFP-0001) to perform the work resulting from the compound size change. The RFP stated that MOQA should add 30 days to the contract completion date "to allow items such as additional surveying, demining, grading, and construction." (R4, tab 51 at I) Italso cautioned MOQA that it was not a notice to proceed and that MOQA should not begin work until it received a signed modification (id. at 2).

311. The parties thereafter executedbilateral ModificationNo. A00003 on 7 May 2011 (R4, tab 11). This modification increased the contract priceby $406,000 and added 92 days to the completion date (30 for the size change and 62 for the weather days omitted from the original contract as described above). The modification contained the same Release Language as Mod. A00002 (id. at 2-3). The addition of these days changed the completion date from 22 August to 22 November 2011, where it would remain through the date oftermination.
C. Problems with Submittals
12. Contract section 01312, Quality Control System, provided thatthe Corps would
use the "Resident Management System for Windows" (RMS) to monitor and administer the contract. It required MOQAto use the Construction ContractorModule ofRMS, referred to as QCS, to record, maintain, and submitvarious informationthroughoutthe contract period. The contract explained that this "joint Government-Contractor use of RMS and QCS will facilitate electronic exchange ofinformation and overall management ofthe contract." (R4, tab 7 at 172) The contractrequired MOQA to use QCS to track and transmit all submittals and to use QCS to produce a register (id. at 177). Contract section 01335, Submittal Procedures for Site Adapt Projects, similarly specifiedthat MOQAwas responsible for maintaining and updating this register, which would be considered the "controlling document" for submittals (id. at 213).
13. The contractprovisions concerning the RMS/QCS system and MOQA's responsibility for tracking submittals are importantbecause there are a number ofpurported submittals discussed belowthat MOQA did notrecord in the QCS/RMS submittal register (see R4, tab 155). For some ofthese, the government acknowledges that it received them, not through QCS/RMS, butrather as an attachmentto a MOQA letter or email (see gov't reply at 27-28). Butthe government denies receiving some documents that MOQA contends that it submitted. MOQA contends that something "nefarious" occurred, alleging that it uploadedthem using QCS but they were "deleted" from the register, albeit without any proof(app. hr. at 94; tr. 8/205).

i. The Design Submittals and the Geotechnical Report
14. The contractrequired MOQAto submit 10, 65, 90 and 100% design submittals. The contract barred MOQA from beginning work until the Corps had approved all design submittals. (R4, tab 7 at 192) (The contract didprovidethat after acceptance ofthe 65% design submittal the Corps could issue a clearance for construction for workthat included the foundation and all building features (id. at 32), butthe Corps never issued more than a narrow clearance, as discussed below.)
15. Once MOQA submittedthe 10% design, the Corps had 14 days to provide its comments (R4, tab 7 at 33). Once the Corps provided the 10% design comments, MOQA

4then had 14 days to submit the 65% design in which it had to address satisfactorilythe 10% review comments. These same deadlines (that is; 14 days to submit and 14 days to review) applied to the 90 and 100% design submittals. (R4, tab 7 at 33)

a. The 10% Design
16. The purpose ofthe 10% design was to ensure that MOQAhad developed a test well and hadproduced a geotechnical investigation report (R4, tab 7 at 192). MOQA entered in the submittal register that it submitted the 10% design on 11 November 2010 (R4, tab 155 at 1).
17. The Corps provided its review comments and gave the 10% design a "C" code
on 27 November 2010, ortwo days late (R4, tab 155 at 1, tab 502 at 31). A "C" code
means that the submittal is "Cleared for Construction, except as noted in attached comments, resubmission required" 1(R4, tab 7 at 220). The contract required the contractor to review each comment, provide a response in the USACE "DrChecks" system as to how the commentwouldbe addressed in the design. MOQA was then supposed to incorporate each comment in the next design submission and then "furnish disposition ofall comments in DrChecks" with that next submittal. (Id., see also id. at 33)
18. MOQA resubmittedthe 10% design on 4 January 2011, 38 days afterthe Corps review comments. The Corps approved the submittal with a "B" code 12 days later (16 January). (R4, tab 155 at 1)
b. The Geotechnical Report
19. At some point (it is not clear exactly when), the parties agreed to treat the geotechnical report as a separate submittal from the 10% design (tr. 5/154, 6/202, 214, 7/70). MOQA recorded submission ofthe geotechnical report on 1December2010 (R4, tab 155 at 1). MOQA nevertheless contends that it submittedthatreport with the 10% design on 11November2010. We have reviewed the various documents cited by the parties (R4, tabs 260, 276, 388)but find that none clearly indicates that MOQA submitted the geotechnical report earlierthan the date MOQA entered in the submittal register, which we find to be the best evidence ofthe submission date.

1The review codes are: A - Cleared for Construction B - Cleared for Construction, except as noted in attached comments C - Cleared for Construction, except as noted in attached comments, resubmission required E - NOT Cleared for Construction, see attached comments, resubmission required (R4, tab 7 at 220).



### 520. Contract section 01015, Technical Requirements

- Site Adapt, stated that there
was no geotechnical information available for the project site and required MOQAto obtain the datato develop foundations and other geotechnical related design and construction activities through field and laboratory investigations and analyses (R4, tab 7 at 79). To produce the geotechnical report, MOQAretained Pamir Geotechnical Services Co. (Pamir Geotech) (R4, tab 388 at 8). No one from Pamir Geotech testified at the hearing.

21. The technical requirements section ofthe contractprovidedthatthe building foundations had been designed for a soil bearing capacity of0.75kg/cm2 and required MOQAto confirmthat the soil bearing capacity was no less than this amount. In a key requirement, this section required MOQAto redesign the footings ifthe geotechnical investigation showed a bearing capacity less than 0.75kg/cm2

. (R4, tab 7 at 80) The contract further required MOQAto provide an estimated settlement for building foundation loads inthe geotechnical report (id. at 192).

22. In its report, Pamir Geotech recorded the presence ofthick deposits ofloess (or "collapsible") soil, a type ofloose, windblown silt, not suitable for construction (R4, tab 388 at 1, 17; tr. 5/79). Itfound that thebearing capacity ofthe soil was less than the 0.75kg/cm2 required bythe contract, and was either 0.69 or0.73, depending on the testing method (R4, tab 388 at 31, 34).
23. The Corps reviewed the geotechnical report and returned itto MOQAwith a "C"code on 20 December2010, or five days afterthe 14 days specified in the contract (R4, tab 155 at 1, tab 388 at 1). In its response, one Corps reviewer noted that the contract "technically"required MOQA to redesign the footings because it showed the bearing capacity to be less than 0.75kg/cm2• However, he opined thatthe design would not needto be changed had Pamir Geotech consideredthe actual footing width rather than an assumed width ofone meter, and statedthatMOQA shouldhave Pamir reanalyze the results using the actual footing width2 (R4, tab 388 at 4).
24. The Corps submittal response also required MOQAto perform a testto measure the collapsepotential ofsoils as set forth in American Society for Testing and Materials (ASTM) D 5333-96, a test not required by the contract. (Mr. Hamidi testified at the hearingthatthis testtook oneto three days to perform (tr. 7/96).) Finally, the Corps also observedthatMOQAhad failed to complete the maximum settlement estimates required by the contract (R4, tab 388 at 4).
25. MOQA appears tohave done little to advance the geotechnical report or determine ifthe footings needed to be redesigned for five weeks following the 20 DecemberUSACE comments. Finally, on 25 January 2011, it submitted a request

2 MOQA did not providethe Board any analysis ofthe time impact ofperforming this analysis comparedto the contractual requirementto redesign the footings.

6for information (RFI-0004) to the Corps thatreferenced USACE's 20 December geotechnical comments, and asked the Corps toprovide the dead loads (the weightofall materials ofconstruction incorporated in thebuildings) (R4, tab 5 5 at 1-2, tab 7 at 81). The Corps did notprovide MOQAthe dead loads, but it didrespondtothe RFI on 31 January 2011 by statingthat it would issue an RFP as a result ofthe soil bearing capacity issue (R4, tab 5 5 at 1 ).

26. In its reply brief, MOQA states that the Corps had agreed to provide MOQA the dead loads but it fails to provide any record citation (app. reply at 7). Ourreview of the contract does notreveal any suchpromise. An internal Corps email indicates that the Corps did not have the dead loads (R4, tab 422 at 124). MOQA acknowledges in its reply briefthat it was able to calculatethe dead loads (app. reply at 7).

. 27. MOQA failed to submitthe revised geotechnical report until 12 February 2011 (54 days afterthe USACE comments); the Corpsprovided its comments 5 days later on 17 February 2011 (R4, tab 155 at 1). While MOQA addressed the ASTMtest for collapsible soils, it once again failed to providethe settlement estimates andthe Corps again gavethe report a "C"code, requiring MOQAtoresubmit it (R4, tab 278). MOQA submitted the report for a thirdtime on 17 March 2011 (one month afterthe USACE comments) andthe Corps approved it with a "B" code three days later (R4, tab 155 at 1).

c. RFP-0002 & -0003: Solvingthe Soil Problems

28. The contractprovidedthat, unless otherwise indicated, "therisk for the design is the sole responsibility ofthe Contractor" (R4, tab 7 at 192). Despite allocating this risk to MOQA (including the obligation to redesign ifthe soil had a bearing capacity less than 0.75 kg/cm2), the Corps accepted that it did notrequire MOQAto do additional construction work not specified in the contract. In its response to RFI-0004 (MOQA's request for the dead loads), the Corps stated: "We concurthat site conditions have changed from the site adapt design documents for soil bearing capacity. An RFP will be forth coming to redesign the foundations for buildings and associated costs." (R4, tab 55 at 1)
29. On the following day (1February 2011), the administrative contracting officer (ACO) issued RFP-0002, in which she acknowledged a differing site condition because the soil had a bearing capacity less than the 0.75 kg/cm2 required by the contract. She directed MOQAto reflectthe changes in the 65% design drawings andto submit within
seven days (8 February 2011) an itemized proposal for performingthe work. She also cautioned MOQAthatthis was not a notice to proceedwiththe work and that it should notbeginperformingthe workuntil it had a signedmodification. (R4, tab 59)

30. MOQA did not seek clarification ofRFP-0002, nor did it inform the Corps that it could not submit a proposal withoutthe dead loads. But MOQA did not submit a proposal or seek an extension by the 8 February deadline. Another month passedwithout

7MOQA submitting a proposal and on 9 March 2011 the ACO canceled RFP-0002 (R4, tab 61).
31. The record suggests that the Corps grew impatient with MOQA's inaction. In
a 13 March 2011 email to the Corps resident engineer, a Corps employee stated that she had analyzed the problem and found that the collapsible soil was shallow enough that it could simply be removed and replaced with good soil (R4, tab 391). On 30 March 2011, the ACO issued RFP-0003 in which the Corps sought a cost and time proposal to "[m]odify site excavation and backfill to account for and mitigate the existence of collapsible soils at the project site" (R4, tab 435 at 2). The RFP provided for over excavation ofthe collapsible soils to a depth ofthree meters below the bottom ofthe foundation within the building footprint and replacementwith backfill meeting criteria specified in the RFP (id. at 4). The Corps asked MOQA to provide its proposal by 7 April 2011 (id. at 1 ). Once again the ACOtold MOQAthat the RFP was not a notice to proceed and that it should not begin work until it had a signed modification (id. at 4).
32. MOQA submitted aproposal on 11 April 2011, four days laterthan the ACO had requested (R4, tab 70 at 6). MOQA did not request more time but sought an additional $1,599,726.20, which was abouttriple what the Corps had estimated (R4, tab 454) and more than the original contract price, in partbecause MOQA included costs for the cancelled RFP-0002 (R4, tab 79 at 13).
33. Thereafter, the parties entered into protracted negotiations and MOQArevised its proposal four times (R4, tab 422 at 99). Ultimately, the parties signedbilateral ModificationNo. P00003 (Mod. P00003) on 28 May 2011, for compensation in the amount of$475,000 with no additional time (R4, tab 12 at 4). Mod. P00003 included Release Language similarto the earlier modifications but stated thatthe contract term had not changed:
Itis understood and agreedthat pursuant to the above, the contract time is not affected, and the contractprice is increased as stated above

.... Itis further understood and agreed thatthis adjustment constitutes compensation in full
on behalfofthe Contractor

...for all costs and markups directly or indirectly attributable for the change ordered, for all delays related thereto

...and for performance ofthe change within the time frame stated. (Id. at 4-5) (Emphasis added)
34. Although MOQA did not request any more time in its proposal, the Corps had estimatedthatthe work would take an additional 60 days (e.g., ex. G-16 at 5). However, because MOQA did not request more time, the Corps did not have Michael BakerJr.,

8Inc., perform an analysis to determine the time impact (tr. 3/38-39, 96). Dickson Boadi, the Corps' office engineer who negotiated the modification, was not surprisedthat MOQA did not ask for more time. Hehad negotiated differing site conditions modifications in the past with contractors who did not ask for more time, and, because the parties hadjustnegotiated the 92-day extension for Mod. A00003 (R4, tab 11), he figured that the delays were concurrent (tr. 2/316-21).
d. The 65, 90 and 100% Designs
35. The contract required MOQA to submit a 65% design thatpresented all information necessary to "SiteAdapt"the fully designed and detailed buildings and otherproject features (R4, tab 7 at 193). MOQA initially submitted this design on 9 April 2011, which was about 12 weeks after the Corps had approved the 10% design, making it 10 weeks late (R4, tab 155 at 2).
36. Despite its submission ofthe 65% design in April 2011, MOQA contends that the pending RFPs for the compound size change and collapsible soils prevented MOQA from working onthe 65% design until the parties signed these modifications in May 2011 (e.g., app. br. at 32; app. reply at 8). MOQAhas notprovided us with any testimony from its designers or an expert that would explain a contention that seems to be refuted by its submission ofthe 65% design priorto execution ofthese modifications.
37. In any event, the Corps found MOQA's initial 65% submittal to be lacking, with
one ofits engineers writing that MOQAhad: omittedthe design analysis, geotechnical analysis, site utility design, and survey/topographic map; thatthe septic tank and foundation designs were incorrect; and thatMOQAhad modified some ofthe site-adapt designs without explanation. He concluded thatthe "submittal does not represent a 65% design submittal." (R4, tab 397) The Corps returned the submittal to MOQAwith a "C"code on 27 April 2011 (R4, tab 155 at 2). MOQAresubmitted the 65% design on 2 June 2011, and the Corps approved it with a "B" code on 18 June 2011 (id.).
38. MOQA did not submitthe 90% design until 3 October 2011, about three months late (R4, tab 155 at 2). MOQA contends in its reply briefthat it submittedthe 90% design on 29 August 2011, which would have been nearly two months late (app. reply at 9). However, MOQA did not record any such submission in the submittal register; it does not appear in the government's Rule 4 file; and MOQAhas notpointed
us to any other evidence ofits submission, such as a discussion at a weekly meeting. Thus, we conclude that MOQA submittedthe 90% design on 3 October.
39. The Corps rejected the 90% design with an "E"code on 17 October 2011 (R4, tab 155 at 2). MOQA did not contestthe rejection and sent its designer a cure notice on 25 October 2011 (R4, tab 269 at 6). MOQA did not resubmit the 90% design

9before termination on 31 October 2011. Nor did it ever submit a 100% design. (See R4, tab 155 at 2)

D. Schedules
40. Contract section 01321 set forth 12 pages ofrequirements concerning project schedules (R4, tab 7 at 179-90). Paragraph 3.1, General Requirements, provided that scheduling ofdesign and construction was MOQA's responsibility. Itprovided that the approved project schedule would be used to measure progress ofthe work, to aid in evaluating time extensions, and to provide the basis ofall progress payments. (Id. at 179) Paragraph 3.2, Basis for Payment, providedthatthe lack ofan approved schedule would result in an "inability ofthe Contracting Officer to evaluate Contractor's progress for thepurposes ofpayment." Similarly, it provided that MOQA's failure to provide all information required in section 01321 would result in disapproval ofthe schedule and an inability ofthe contracting officerto evaluate progress for paymentpurposes. (Id.)
41. The contractrequired MOQAto include a narrative report with the preliminary schedule as well as all updates. The narrative was to include a description ofactivities along the two most critical paths, a description ofcurrent and anticipated problem areas or delaying factors and their impact, and an explanation ofcorrective actions taken orrequired to be taken. (R4, tab 7 at 185) MOQA failed to include this narrative with most ofthe schedules it submitted.
42. The contractrequired MOQAto submitthe initial project schedule (referredto as a baseline schedule) within 30 days ofcontract award (R4, tab 7 at 184). As described above, the Corps awarded the contract on 5 May 2010. Twenty-two days elapsed before the Corps suspended work on 27 May 2010. MOQAthus had eight days from the resumption ofwork on 26 August 2010 to submit the schedule, that is, until 2 September 2010. MOQA did not meetthis date, or even a date 30 days from the lifting ofthe suspension, rather it submittedthe baseline schedule on 18 December2010, more than three months late. The Corps approved it with a "B" code the following day even though MOQA failed to include the required narrative. (R4, tabs 47, 155, 300)
43. The approved project schedule showed a completion date of 10 October 2011, which was pastthe then-contract date of22 August 2011 (see R4, tab 10 at 2). A late completion such as this is referred to as "negative float" (R4, tab 7 at 182-83). Itis not entirely clearwhy MOQA showed late completion at this relatively earlyjuncture, but the majorreason is that MOQA listed the license for construction work stoppage as ending on 20 September 2010 ratherthan the correct date of25 August 2010, an addition of26 days (R4, tab 47, tab 213 at 6).
44. The contractrequired MOQA to submitperiodic schedule updates to enable the contracting officerto assess its progress. IfMOQA failed to furnish the schedule data

10that the contracting officer determined was necessary to verify its progress, MOQA would be deemed to have notprovided an estimate upon which a progress payment could be made. (R4, tab 7 at 184) The submittal register indicates that MOQA submitted schedule updates on 30 June 2011 (rejected with an "E"code), 24 September 2011 ("E" coded on 29 September), and on 24 October 2011, which the Corps did not return before termination (R4, tab 155). MOQA also submittedrevised baseline schedules on 27 September2011 ("E" coded on 29 September) and 24 October 2011 (id.).
45. Moving beyond the QCS/RMS submittal register, the record also indicates (and USACE agrees (gov'treply at 27-28)) that MOQA submitted other schedules by email. Thus, it appears to have submitted a schedule update (without the narrative) in the 17-20 June 2011 timeframe (R4, tabs 473, 496-97); on 9 August 2011 (withoutthe narrative) (R4, tabs 479, 491, 495); on 28 August 2011 (R4, tab 307 (this tab contains a transmittal form but notthe schedule)); and two in October 2011 (R4, tabs 303, 490) (withoutthe narrative). The Corps did not approve any ofthese updates.

E. Other Submittals

1. Area Use Plan
46. The contract required MOQAto submitwithin 10 days ofaward an area use plan that designated its intended use ofall areas in the project site. The contract provided that MOQA could not "begin construction ofthe mobilization facilities" before the contracting officer approved the area use plan (R4, tab 7 at 149), which would barit from mobilizing and beginning construction. Based on an award date of 5 May 2010 (R4, tab 7 at 1, tab 15), the area use plan was due on 15 May 2010, or 12 days before the Corps suspended work because ofthe license for construction.
47. MOQA'spresident, Mr. Hamidi, testified that he viewed the area use plan as "not a big deal" but he agreed that the contractrequired it before MOQA could start working onthe site (tr. 7 /16-20). Mr. Hamidi also testified thathe understood the area use plan to be due 10 days afterthe notice to proceed (id.). While this is not what the contract says, taking into account a 20 May 2010 notice to proceed and the time that passed before the contracting officer suspended work on 27 May, the area use plan would still have been due before the end ofAugust 2010. The record indicates, however, that MOQA did not submitthe area use plan until 20 March 2011 (R4, tab 155 at 1), more than six months late underMOQA's more lenient calculation ofthe due date.
48. MOQA contends in its briefthat it submittedthe area use plan on 29 June 2010 (app. br. at 29 (citing R4, tab 288 at 10)) butthe weight ofthe evidence supports the Corps' position. First, MOQA never entered a 29 June plan in the submittal register _(R4, tab 155), which we considerthe best evidence ofsubmittal dates. Second, when the contracting officer's representative wrote to MOQA on 16 March 2011 citing

11MOQA's failure to submit the plan (R4, tab 63), MOQA did not reply that it had submitted the plan. Rather, it submittedthe plan reflected in the submittal register. Third, in his testimony, Mr. Hamidi agreed that MOQA did not submit this plan until 20 March 2011 (tr. 7 /18).
11. Right ofEntry Coordinate Data
49. The contractrequired MOQAto submit to the contracting officer's representative (COR) as a preconstruction submittal right ofentry coordinate data (R4, tab 7 at 36, 40). The submittal was to contain an exhibit illustrating the limits, boundaries, and coordinates representing the right ofentry, among otherthings (id.). MOQA did not submitthis datauntil 5July 2011; the Corps rejected itwith an "E"code
on 9 July 2011 (R4, tab 155 at 1 ); MOQA never re-submitted it. In its reply brief, MOQA states that the government "failedto recognize thatthe coordinate data included within the Contract was incorrect," which may betrue, but presumablythat was why the government wanted it confirmed (app. reply at 3 (citing R4, tab 7 at 40)). MOQA does not explain why it neverresubmitted this information.
111. Master Site Plan
50. The contractrequired MOQAto submit a master site plan within 20 days of the notice to proceed (R4, tab 7 at 42). Taking into accountthe suspension ofwork due to the license for construction, this submittal was due in early September2010. During his testimony, Mr. Hamidi testified thatthis submittal was "not a big deal." (Tr. 7/51) MOQA did not submit it until 30 June 2011; the Corps approved it with a "B" code five days later (R4, tab 155 at 1 ). MOQA does not address this in its reply briefotherthan to contend that it did not delay the critical path (app. reply at 3).
1v. Quality Control Plan and Accident Prevention Plan
51. The contractprovidedthatMOQAwas responsible for quality control (QC
or CQC3) and for establishing and maintaining an effective quality control system (R4, tab 7 at 238). It required MOQAto submit a QC plan that covered all construction operations, both on site and offsite, including work by subcontractors, fabricators, suppliers and purchasing agents.
52. The contractrequired a CQC organization including a CQC system manager who was to be present at the site at all times (R4, tab 7 at 239). The contract provided that, when it became necessary to make changes to the CQC organization, MOQA was to revise the CQC plan to reflect the changes and submit it to the contracting officer for approval

3 Contractor Quality Control.

12(R4, tab 7 at 242-43). In its QC plan, MOQA stated that its organization included a CQC manager, a safety and health manager, and a site superintendent (R4, tab 35 at 13).
53. MOQAwas to submit the plan by no laterthan five days after receipt ofthe notice to proceed (R4, tab 7 at 239), meaning that it was due in May 2010, but MOQA did not submit it until 23 October 2010 (R4, tab 155 at 2, tab 35). The Corps approved it the same day (id.).
54. The contract also required MOQAto submit an accidentpreventionplan (APP) (R4, tab 7 at 255). MOQA submitted the APP on 29 November 2010 (R4, tab 155 at 2). The Corps gave it a "C" code (resubmission required) on 14 December 2010; MOQA resubmitted it 44 days later (27 January 2011), receiving approval (an "A" code) the same day (id.).
55. The APP was to include, among otherthings, the names and qualifications of all site safety and health personnel designated to perform work on the project, including the designated site safety and health officer (SSHO) and other competent and qualified personnel (R4, tab 7 at 256). The contractrequired an SSHOto bepresent at the site at all times to perform safety and occupational health management, surveillance, inspections, and safety enforcement for MOQA (id. at 253). The contractprovidedthat disregardingprovisions ofthe contract orAPP wouldbe cause for the contracting officerto stop work (id. at 256).
56. MOQA's APP did not identify an SSHO, but it identified AsifDashty as performing the role ofsafety and health manager/chiefsafety engineer (R4, tab 56 at 13). The record indicates that bothparties understood Mr. Dashtyto be the SSHO (see R4, tab 117 at 8; gov'tbr. at 15 n.13). Mr. Dashty had also been identified as the safety and health manager in the CQC plan (R4, tab 35 at 13).
57. Duringthe course ofthe project there were disputes between the parties concerning MOQA's safety practices and its CQC and safety personnel. Forexample,
on 18 June 2011, ChesterLawrence, the USACE quality assurance representative, wrote to MOQA stating that "[s]afety is bad" on the site (R4, tab 88). And on 27 June 2011, after Mr. Lawrence received photos from the site that showed that MOQA's safety manager/SSHO was allowing men to work withouthard hats, safety glasses, vests, and proper footwear, he warnedMOQAthatthis could lead to his removal from the project and the Corps shutting down the site (R4, tab 94; tr. 2/89-92).
58. On 27 April 2011, the COR, Kevin Gatlin, notified MOQAthat MOQA's recent QC reports indicated that it did not have a CQC manager on site (R4, tab 71). On 3May 2011 theparties met for a bi-weekly progress meeting at which the Corps representatives met a newMOQA CQC manager and new safety managerwho had notbeen submittedto the Corps for approval (R4, tab 73 at 2, 4). On 16 May 2011 MOQA emailedresumes for

13the new personnel, including the safety manager, MuhammadAsifMashal (R4, tab 75 at 6). Upon review, CORGatlin became concerned because Mr. Mashal was very young and his only listed experience was as a high school teacher (tr. 4/261-62).
59. The Corps requested MOQA update its personnel (tr. 4/262), which MOQA did, but not until August 2011 (R4, tab 117). The update included new information for Mr. Mashal. The new information was even more troubling to COR Gatlin because it indicated that he had graduated from college in 1996, which was curious because his
resume indicated that he had been born in 1987 (compare R4, tab 75 at 6 and tab 117 at 23). Upon further review, COR Gatlin concluded that MOQA had simply taken the education and work history for the previous safety and health manager and pasted it under Mr. Mashal's name in the update (tr. 4/264).
60. COR Gatlin wrote to MOQA on 16 August 2011, stating "[i]t appears that your office was trying to give the impression that Mr. Mashal was qualified for the position ofSSHO when it is clearby his resume that he does not meet the minimal requirements to be in this position" (R4, tab 126). He directed MOQAto submit a qualified candidate for approval and stated that until MOQA had an approved SSHO it
was not allowed to do any work on the site (id.; see R4, tab 7 at 253). Bythis point in time, Mr. Mashal had been acting as the SSHO on the site for more than four months (including the period in June described above in which the LNQAphotographed workers without hard hats, safety glasses, etc.). Work at the site stopped for 18 days while MOQA retained and gained approval ofa new SSHO (R4, tab 183 at 899-925).
61. Mr. Hamidi (MOQA'spresident) wrote backthe following day (17 August), admittingthatthe companyhad submitted "wronginformation." He statedthat the person responsible had been "dismissed" and no longer worked for MOQA and that MOQA would submit a new SSHO. (R4, tab 127)
62. On 18 August 2011, Mr. Hamidi submittedto COR Gatlin names and
resumes for new personnel, including an SSHO (R4, tab 129). Unfortunately for MOQA, CORGatlin was aware that the USACE safety office had previously rejected this person on anotherproject. Even worse for MOQA, when CORGatlin comparedthe information submitted with the resume on file, it appeared the MOQA had again falsified his background. (Tr. 4/272-75, 284-85; compare R4, tab 129 at 4-6 and 7-8)
63. CORGatlin wrote to MOQA on 23 August 2011, stating in relevantpartthat "your office was trying to give the appearance thatMr. Faryad was qualified for the position ofSite Safety and Health Officerwhen it is clearby his Resume that he is not. This is the second time the government has notified your office ofproviding such information." (R4, tab 133) There does not appearto be any document in the record where MOQA denied this charge (see R4, tab 139 (contracting officer's letter dated

1421 September 2011 noting lack ofresponse to 23 August letter)). On 23 August, the Corps also rejected the updated safety personnel with an "E"code (R4, tab 155 at 2).

F. MOQA's REA

64. On 4 June 2011, MOQA submitted a request for equitable adjustment seeking additional time and money for a variety ofreasons. Although short on specifics, the REA sought among otherthings: additional money for the license for construction delay (not mentioningthe bilateral modification it had signed); additional time from 4 Septemberto December2010 for "submittals of65% Design, scheduling and additional paper work ofthe contract" (even though it did not submitthe 65% design during this period); and adverse weather from December2010to March 2011 (despite the lack ofan approved design necessary to start work). (R4, tab 82) The contracting officer denied the REA on 20 June 2011 (R4, tab 89).

III. TheLocal National Quality Assurance Representative (LNQA)

65. MOQA attributes many ofits problems tothe LNQA, Habibullah Khadaam. Ithas produced an employmentrecord reflecting that it hiredMr. Khadaam to be a QC manager on a differentMOQA contract on 27 January 2011 (R4, tab 456). Mr. Hamidi testifiedthat he soonterminated Mr. Khadaam because Mr. Khadaam wantedto work in the officeratherthan at thejob site (tr. 6/240). Mr. Khadaambeganworking on the instant contract- on site

- in early April 2011 (R4, tabs 68, 182 at 322). MOQA did not protest Mr. Khadaam's presence atthe site.

66. The closestwe have cometo finding a MOQA complaint about Mr. Khadaam in his first months onthe project occurred on 18 June 2011 when the USACE quality
assurance representative, ChesterLawrence, emailed MOQA about several safety and quality issues. MOQA didnot deny that any ofthe problems existed but it asked the Corps to instruct Mr. Khadaamthat he was part ofa "team" and shouldtry to work out issues with MOQA before bringing them to the attention ofthe Corps. (R4, tab 88 at 1)

67. Mr. Lawrence testified that he did not see anything that indicated Mr. Khadaam
was biased orunduly harshtowards MOQA orthat he wasputting inaccurate information in the daily reports. He testified thathe did not receive any complaints byMOQA about Mr. Khadaam during the first four months he was onthe project. He testified, that he "probably wouldhave instructedhim [Mr. Khadaam] to be a little bitmore critical." (Tr. 2/82-83) He further testifiedthathe observedMr. Khadaam interactwith MOQA employees in a friendly manner, thatthey drove from the siteto the meetings together, ate lunch together and talked together (id.). We found this testimony credible.

68. On the morning of 11August2011, Mr. Khadaam emailedMr. Lawrencehis daily report for the previous day; he stated in the email that the reportwas late because

15MOQA did not have constant electricity on site (R4, tab 403 at 2). Mr. Lawrencethen ·wrote toMOQA stating "please get your electrical person submitted and approved or work will stop at this site due to non-compliance with no power on site for trailers, office, restrooms, living conditions, etc. this has been ongoing" (id.). Mr. Lawrence also stated MOQA was in violation ofthe contractby nothaving an SSHO on site (id.).

69. Mr. Hamidi responded laterthat day and did not deny that Mr. Khadaam had accurately reportedthe electrical problem. However, he stated, in part: "Your representative specifically on dashte-qala site is not cooperating and playing almost negative role. He is not working as a team member."4 (R4, tab 403 at 1) Although he did not mention Mr. Khadaam by name, it is undisputed that he was referringto Mr. Khadaam. Shortly thereafter, the parties held a conference call in which MOQA alleged for the first time that Mr. Khadaam was a former MOQA employee who was upset about being fired and was causingproblems at the site (tr. 4/241-42). The Corps then agreedto switch Mr. Khadaam to anotherproject (ex. G-10).
70. Musadiq Sadiqi replaced Mr. Khadaam as the LNQA (R4, tab 182 at 559). Almost immediately, he caughtMOQA attemptingto substitute UPVC pipe for PVC pipe for the waterwell casing (R4, tab 128). (PVC is polyvinyl chloride; UPVC is unplasticized PVC (tr. 4/320; R4, tab 7 at 67).) MOQAhad previously submitted the UPVC but the Corps hadrejected it because "itdoesn'thold up for stufflike well casings" (tr. 4/321; R4, tab 502 at 1132-33). Mr. Sadiqi caught MOQA scratching or shavingthe "U"off"UPVC" (R4, tab 128).
71. Both Mr. Lawrence and COR Gatlin testified thatthe daily reports about MOQA'sperformance were similar afterthe Corps orderedMr. Khadaam's transfer (tr. 2/189, 278, 4/254-55). Forexample, afterthe shutdown ended due to the lack ofa MOQA safety officer, the 6 September 2011 quality assurance report notes that a MOQA supervisorwas "notprofessional," thatrebar on a guard towerwas rusty and unacceptable, and thatthe guards who were supposedto be providing security perMOQA's security plan had left "months ago" (R4, tab 182 at 596). On 13 Septemberthe quality assurance report states thatthe MOQA QC manager "is not qualified to QC not understand the Corps work procedure and QC definition what WC mean [sic]." Italso stated that this same employee
was performing survey butwas "notqualified to survey." Itfurther notedthatwhen quality assurance found a deficiency atthe site there was no one at MOQAto talk to becausethe QC managerwas busy with the surveying. (Id. at 606) On 19 September 2011 the quality assurance report identifies_ several problems with the concrete, rebar, compaction, and the survey and the lack ofa surveyor on site (id. at 616).

4 In this email, Mr. Hamidi also complainedthatthe paperworkrequired by the contract was "extremely high" and statedthat MOQAwas still having a problem with it
even though it had hiredthree U.S. citizens to work on USACE projects.

1672. When the Corps interviewed Mr. Khadaam's supervisor, he denied that Mr. Khadaam had done anything wrong (tr. 2/104). In fact, Mr. Khadaam had never been the sole source ofinformation for the Corps, which had been receiving similar information from the other local nationals (tr. 4/243-45). On 29 September 2011, having found no basis for the allegations against him, the Corps allowed Mr. Khadaam to reportback to thejob site (R4, tab 411; tr. 1/194).

73. Atthe hearing, MOQA's counsel floated a theory thatreports from the local nationals stayed negative afterMr. Khadaam's departure becausethey were all from the
same tribe (tr. 2/237). In its post-hearing brief, however, MOQA has settled on a theory that Mr. Khadaam neverreally leftthe site (app. br. at 92). Otherwise, MOQAhas little to say aboutthe actions ofMr. Sapiqi orthe other local nationals. We find that there is
no evidence to supportthe contention that Mr. Khadaam stayed on the site. The Corps had transferred him to another site thatwas some hours away and surely would have noticed ifhehad not reportedto that site. (R4, tab 411; ex. G-10)

74. MOQA's first written salvo against Mr. Khadaam did not occuruntil the Corps issued its final performance evaluation for MOQA (post-termination) on 1February 2012 (R4, tab 224). In the "contractorremarks" section ofthe evaluation, MOQA contended that Mr. Khadaam had been dismissed from MOQA for "unsatisfactoryperformance" andthat he had "extremerevulsion" againstMOQA and that "[d]ue to his revenge and provocation" a conflicthad occurredbetween MOQA and its subcontractor, Amiry Brothers (id. at 3).
75. MOQAmakes an assortment ofother allegations against Mr. Khadaam, including that he was: interfering with MOQA's work; submittingbiasedreports; committing extortion; solicitingbribes; thathe had "plants"who would apply forjobs at MOQA and, afterthey werehired, he would declare them to be unqualified; andthat he turned MOQA's main subcontractor, Amiry Brothers, against MOQA (app. br. at 36, 39; tr. 5/362).

76. With respect to Amiry Brothers, the 13 August 2011 daily report that Mr. Khadaam sent to the USACE quality assurance representative, Mr. Lawrence, noted that there had been a conflict and quarrel betweenMOQA and an unnamed subcontractor "because ofinvoice payment & some otherillogical reasons" (R4, tab 123 at 3). This report further states thatthe subcontractorhad expended $130,000 buthad not beenpaid and was not going to work anymore (id. at 7-8). On 8 October2011, MOQAnotifiedthe
new USACE COR, Theodore Champine, that it (MOQA) hadterminatedAmiry Brothers' subcontract "becausehe couldn't follow the contract" (R4, tab 145). On 23 October 2011, Amiry Brothers sent an email to Mr. Lawrence complaining about nonpayment (R4, tab 150).

1777. Amiry Brothers shifted its position somewhat on 17 December 2011

- about six weeks afterthe Corps terminatedMOQA

- when it sent another email to Mr. Lawrence stating that it had sentthe 23 October email "unfortunatelyby mistake," and that it had been paidby MOQA (R4, tab 440). Notably, it did not make any allegations against Mr. Khadaam.

78. Morethan five years later (25 December2016), virtually on the eve oftrial, MOQA filed as a Rule 4 supplement a letter from Amiry Brothers that told a remarkably different story. A company official now alleged that Mr. Khadaam "had serious issues with MOQA" and that he had "managedto provoke ourcompany against" MOQA (R4, tab 489). He alleged that Mr. Khadaamhad "encouraged our on-site employees to act against MOQA" and had "evenmade my brotherto send an official e-mail complaining against MOQA[] and claimingthat we are not getting ourpayments ontime whereas we used to receive regularpayments" (id.). He further alleged that Mr. Khadaam had promised Amiry Brothers that ifthey caused MOQA's termination, he would re-award the contractto Amiry Brothers based on his strongties with the Kunduz resident office (id.).

79. We find the 25 December2016 Amiry Brothers lettertobe completely incrediblebecause it is inconsistent with its contemporaneous statements during the project andraises allegations for the first time morethan five years afterthe fact. Nor do we believe any ofMOQA's otherunsubstantiated allegations againstMr. Khadaam, who is a virtual Swiss Armyknife ofa villain for MOQAto explainpoorquality work, safety lapses, subcontractorcomplaints ofnonpayment, and the submission offalsified
resumes. 

### It is simplytoo much for us to swallow.

80. IfMr. Khadaam really hadreason to be disgruntled with MOQAwe believe it to be more likely than notthat MOQAwouldhave complained abouthim to the Corps eitherright whenhe started or at leastwhenthere was the first sign ofretaliation. To accept Amiry Brothers' new allegations as true, we would have to disregard not only its contemporaneous statements butthe credible testimony ofCorps employees who: observed amicable relations between Mr. Khadaam employees; received similarreports from Mr. Khadaam's superiors andhis replacement, and who were in a position to observe MOQA's general ineptness with respect to boththe design and construction of the project.

IV. Progress ofConstruction: March to October2011

A. Marchto May

81. As described above, the contract generally barred MOQA from beginning construction until the Corps had approvedthe design, although it did provide that the Corps could grant a clearance for construction for foundation and otherwork after approval ofthe 65% design (R4, tab 7 at 32). Notwithstandingthese provisions, on

1828 March 2011 (before MOQAhad even submitted the 65% design), COR Gatlin issued
a clearance for construction, but only for grubbing clearance and grading at the site (R4, tab 66). This was the only clearance that the Corps ever issued and the contract provided that any work MOQA did without a clearance for construction was at its own risk and expense (R4, tab 7 at 222).
82. As the design process dragged on, the Corps demanded that MOQA submit recovery schedules to show how it would catch up and complete the work on time. In a letter ofconcern dated 8May 2011, the COR demandedthat MOQA submit a recovery schedule by 17 May 2011 (R4, tab 74). MOQA did not meetthat deadline but on 31 May 2011 it submittedwhat it referred to as a recovery plan, which showed a project completion date of4 January 2012 (R4, tab 470).
B. 28 June to 1October: Foundation Work
83. Theparties agree that the concrete block building at issue can be constructed quickly, at least ifcompetentpersonnel and sufficientresources are applied. Forexample, MOQApoints us to the following testimony from the Office Engineer, Dickson Boadi:

(Tr. 2/320) Q. Was the building a complexbuilding?
A. No. It's not a complexbuilding. It's a simple CMU [concrete masonry unit] block structure

.... And that structure, ifyouhave your foundation down, within a week ortwo you can have all your block work up. It's, I'm notkiddingyou. Within a week ortwo there are masons onsite, they can erect all the block work up and you can have yourroofup in no time.

84. MOQA started the foundation work onthe headquarters building on 28 June 2011 (R4, tab 182 at 441, tab 213 at 12; app. reply br. at 11). According to MOQA's original schedule, it had planned onperforming this work from 7 January to 9 February 2011, a duration of34 days (R4, tab 47 at 1, lines 27-33). Thirty-four days from the actual start date of28 June projectedto a completion ofthe foundation on 31 July 2011. The parties agree that MOQA did not completethe foundation until 1October 2011 (gov'tbr. at 29; app. br. at 68), which represents a delay ofmore than two months. There are multiple reasons for this delay, all ofwhich are MOQA'sresponsibility, including insufficientworkers and equipment (e.g., R4, tab 182 at 463, 491-92), and the shutdown from 16 August to 4 September 2011 due to the lack ofan SSHO, as described above.

1985. Further, MOQA attempted to skip the submission ofa borrow source for the fill. On 11 July 2011, CORGatlin wrote to MOQA stating that it had cometo his attention that MOQA hadbeenplacing unapproved backfill in the over-excavated areas, despite the requirement in Mod. P00003 thatthe borrow sourcebe approved bythe COR (R4, tab 109 (citing tab 12 at 4)). CORGatlin directed MOQAto submit the borrow
source in the next two days andto notplace any more material until it hadbeen approved (id.). According to the submittal register, MOQA did not furnish the submittal until 18 July; the Corps rejected it four days later (R4, tab 155 at 4). MOQAresubmitted it but the endresult was that MOQA did not have an approvedborrow site until 11 August 2011 (id.).

C. LNQA Khadaam's Alleged Delays

86. MOQA does nothave much to say in response to the delays in the summer of2011, otherthan making additional allegations against Mr. Khadaam. Itcontends 

### Mr. Khadaam not only required MOQAto lab test material at the borrow site, but also to have a lab atthe project site to test it again (app. br. at 35). MOQA cites Rule 4, tab 182 at pages 416-21, which are the quality assurance reports for 15-18 June 2011. It does not identify theprecise language it is relying upon butpresumably it is a statement that "[t]he contractor didn'tprovide any lab technician in the site yet & the lab technician is necessary to be in the site in these days." (Id. at 416) From looking at this in context, we do not see anything improper.

87. As described above, the parties executed bilateral Mod. P00003 on 28 May 2011 to remediate the collapsible soils (R4, tab 12). The modification required MOQA to submitthe borrow source for the fill to the CORfor approval, specifiedthe acceptable types ofsoil that couldbe used andprescribed limits for compaction density, moisture content, and theheight oflift layers. Italso specifically provided for classification ofthe materials when brought on site. (Id. at 4) Thus, the contract clearly required some on-sitetesting ofthe borrow material to ensure that it was the proper type, density, moisture and lift height.

88. IfMOQA's contention were correct- that Mr. Khadaam required double testing ofthe fill as another form ofrevenge for being fired

- we wouldexpectto see some documentation in the record complaining aboutthis, butMOQA has not produced any. There is no evidencethatthe governmentrequired moretesting ofthe soil than required by the contract.
89. Finally, wewould be remiss ifwe did not also observe that the quality
assurance reports MOQA directed us to in support ofits contentions onthis issue contain unflattering statements about its overall performance ofthe contract. The reports for the 15-19 June 2011 timeperiod state, among otherthings:

20• The security manager is not experienced & he doesn'tknow even one word about security issues, actually he is the finance officer ofthis project for MOQA, butMOQA is using him as a security managertoo;

• The security manager is using his four guards as labor[er]s inside the construction site;

• The coars[e] aggregate particles are round and [are] not fit to use in concrete or mortar;

• The stones for masonry wall are not mountain stones andthey seem poor strength;

• [We] don'thave surveyor on site because ofthe QC manager's absent & the PM finished the walls excavation withouthaving any direction ofsurveyor orknowing ofthe finished grade;

• [T]he electricity system for temporary facility installed improperly (No grounding, No main panel board);

• [T]oilets are unusable because ofnot installing water tank & septic.
(R4, tab 182 at 416-23)

D. July to October: Final Efforts to GetMOQA on Schedule
90. With performance ofthe work continuing to lag, on 5 July 2011, CORGatlin demanded MOQA submit another recovery schedule by 20 July 2011 because the approved baseline schedule and MOQA's most recent update showed a negative float of 43 days. He stated that therecovery schedule must show a number ofactivities onthe critical paththat would be accomplished in the next 90 days and that the recovery schedule must show how MOQA would employ additional resources to reduce the negative float. (R4, tab 101) On 30 July 2011, CORGatlin wrote to MOQA, stating that MOQAhad submitted a schedule on 21 July 2011 but it did not meet the requirements for a recovery schedulebecause it did not contain a narrative explaining

21how additional resources wouldbeused toreduce the negative float; he requested MOQAprovidethe information immediately (R4, tab 116).

91. On 30 July 2011, MOQA submitted another 90-day recovery schedule (R4, tab 477). MOQA stated that it would add a second shift as soon as the status ofits submittals allowed and stated that it would be submitting a night shift safetyplan (id. at 3). (This is the only schedule we have seen that includes the required narrative.) MOQA did not submit anything onthe night shift and on 21 August 2011 CORGatlin wrote to MOQA reminding itthat it must submit night personnel for approval and must submit a lighting plan (R4, tab 480 at 18 (citing R4, tab 7 at 155)).
92. On 9 August 2011, MOQA submitted a schedule update that the Corps forwarded to Michael BakerJr., Inc., for review (R4, tab 495). The Michael Baker reviewerobservedthatthe schedule showedMOQA having completed 52% ofthe work whilethe RMS system showedonly 31%. He recommended acceptance only ifwork placement for the months ofJune and July matched what MOQA had indicated in the schedule and MOQAwas working seven days perweek. (Id. at 1) Notably, MOQA represented in the schedulethat it had completednearly one-third ofall projectwork in July (id. at 8), which is not credible because it did not evenhave an approvedborrow
source and because its workhours trended down for most ofthe month (compare R4, tab 183 at 804 (380 combined workhours for MOQA and Amiry Bros. on 1July 2011), at 816 (349 hours on 7 July), at 830 (226 hours on 14 July), at 844 (198 hours on 21 July), and at 858 (204 hours on 30 July)). CORGatlin wrote to MOQA on 21 August 2011 statingthatthe June andJulyprogress had not occurred and that the schedule was, therefore, unrealistic andwas rejected (R4, tab 302).
93. On 23 August 2011, CORGatlin sentMOQA another letter ofconcern. In this letter, CORGatlin stated that, based on a contract completion date of22 November 2011, MOQA shouldbe 92% complete butthe Corps estimated its progress at 20%. CORGatlin demandedthat MOQA submit a recovery scheduleby 30 August 2011. (R4, tab 133)
94. On 21 September 2011, the contracting officer sentMOQA a cure notice in whichhe statedthat MOQAhad notresponded to the 23 August letter ofconcern or provided an updatedrecovery schedule (R4, tab 139). The contracting officer stated that it no longer appearedpossible for MOQA to complete the project on time. The contracting officer demanded that MOQA cure the condition within 10 days orhe would considerterminating the contract for default.
95. MOQAresponded with a letter dated 30 September2011 (R4, tab 141). It acknowledged its "lack ofprogress" and expressed a "sincere desire and intentto completethe project as well as improve ourperformance." Further, it stated that "[i]n response to ourdeficiencies, we have

...completely reorganized our management and

22processes." Itstated that it was working to complete a 90-day recovery plan that it would complete in 7 to 10 days. (Id. at 1) MOQA did not dispute that its progress was at 20%, nor did it contend that it was entitled to additional time.
96. 

### In its response to the cure notice, MOQA also recognized that it must work at night and add workers to the project. It stated that it was developing a "Night Work and Lighting Plan

...for approval for the night work to commence. (R4, tab 141at2) As late as 19 October 2011, MOQA stated that it intended to submit a night work safety plan (R4, tab 442 at 3), but it failed to do so before termination (tr. 1190, 136).
97. Conditions on the project did not improve in October. At a meeting on 4 October2011, COR Champine, asked MOQA'sproject manager when it would achieve "real completion" ofthe project. He repliedthat iftherewere no problems with submittals, drawings, and construction supplies MOQA would completethe project in
seven months, or about five months late. (R4, tab 144 at 2-3)
98. Within four days something did go wrong, because MOQAterminated Amiry Brothers (R4, tab 145). Termination ofAmiry was a significantproblem because Amiry was responsible for most ofthe actual work on the site (see R4, tab 78 at 3 (identifying Amiry's scope ofwork as all civil, structural, architectural, electrical, and mechanical work)). And something else went wrong on 17 October 2011 when, as described above, the Corps rejected MOQA's 90% design (R4, tab 155 at 2). Then, on 23 October 2011, Amiry Brothers complainedto USACE that it had not beenpaidby MOQA (R4, tab 150). Further, on 27 October 2011, Michael Bakerrecommended rejection ofMOQA's 19 October schedule update because MOQAhad "unreasonably shortened activity durations in an effortto forecast a compliantproject completion date and not [sic] doubt to facilitate payment exceeding 50% ofthe contract value" (R4, tab 493).

V. Termination for Default andthe Aftermath
99. On 31 October 2011, the contracting officer, Willie R. Brame, terminated MOQA's contract for default (R4, tab 4). As statedby CO Brame in the termination letter, the contract incorporated FAR 52.249-10, DEFAULT (FIXED-PRICE CONSTRUCTION) (APR 1984) (R4, tab 7 at 5). As reasons for the termination, CO Brame stated: 1) that MOQA had failed to prosecute the work with sufficient diligence to complete theproject on time, having completed only 30% ofthe work while using up 527 ofthe 549 days in the contractterm; 2) MOQA failed to provide an adequate Accident Prevention Plan; and 3) MOQA repeatedly failed to establish and implement
an adequate Quality Control Program (R4, tab 4 at 1 ).
100. On 1November2011, COR Champine directed MOQAto demobilize from the site and remove any equipment and any stockpiled materials for which it had not

23been paid (R4, tab 365 at 184). On 3November 2011, CORChampine sentthe LNQA (Mr. Khadaam), the local national deputy resident engineer (Mr. Seddiq), and the local national project engineer (Mr. Fardin) to the site to determine the level of completion MOQA had achieved (tr. 11113; R4, tab 182 at 714). CORChampinerelied
on this information to calculatethe final payment due MOQA (tr. 11114, 134-37). CORChampine, with assistance from Mr. Lawrence, calculatedthat MOQA was entitledto $642,840.63, or about 25% ofthe contractprice of$2,572,449.11 (R4, tab 181; tr. 11230). (Mr. Lawrence testified that he disagreed. He concludedbased on the amount ofdefective work that hadtobe removed by the replacement contractorthat MOQA had completed only 20% (tr. 2/71).)
101. In any event, CORChampineperformedthis analysis by reviewing the cost loaded subCLINs in the RMS system, comparing it with the site assessment by the local nationals and cross referencing it with installed materials that were approved and accepted (tr. 11233-34). Taking into considerationprevious payments, CORChampine concluded that MOQA was entitled to a final payment of$123,398.63 plus release of $25,375 in retainage (id.; ex. G-5). The contracting officer approved the payment on 7 February 2012 (R4, tab 181).
102. Notwithstanding the termination and CORChampine's 1November2011 direction to vacate the site, MOQAwas unwilling to leave, assigning guards to the site and causing some concern about an armed standoff(R4, tab 419 at 1-9). MOQA wrote to the Corps on 7February 2012 asserting its "rightto maintain security oftheir financial holdings beingthejobsite and any/all materials" (R4, tab 3). On 22 March 2012, MOQA again wrote to the Corps, statingthat it was maintaining "site security" to protect its "vested interest" and alluded to the possibility of"civil unrest in the village" iftheCorps did not allow MOQAto resume work (R4, tab 162).
103. The Corps awarded a contractto Barnie Global Construction Company on 29 February 2012 to completethe project (R4, tab 184). Barnie's scope ofwork included removal ofMOQA's foundation for the headquarters building, the perimeterwall and foundation, and the guard tower support columns (R4, tab 418 at 78, tab 459 at 50).
104. The 12 April 2012 quality assurance report for the replacement contractor states that the following materials and equipmentbelongingto MOQA were still on the site: "Cement, steel re bar, forms, scaffoldingpipe, stone, sand, gravel, wheelbarrow, shovels and etc." (R4, tab 459 at 2). Although somewhat difficultto tell because text in the reports was carried forward unnecessarily from day to day, MOQA appears to have removed everything butthe sand, gravel, and stones by 22 April 2012 (id. at 22).
105. The Corps terminated Barnie for default on 10 November 2013 for failing to complete the work by the required completion date (R4, tab 202). A third contractor finally completedthe project in April 2015 (R4, tab 211).

24VI. Claims and Appeals
106. On 24 January 2012, MOQAtimely appealedthe termination for default. The Board assignedthe appeal ASBCA No. 57963.
107. On 1December 2015 MOQA submitted a certified claim (R4, tab 177). Referencing ASBCA No. 57963, MOQA contended that the termination should be changed to one for the convenience ofthe government. It sought $1,864,660.45, which included $624,740.00 for materials left on site; $227,915.00 for "construction and machinery" left on site; $842,587.23 for unpaidpay requests up through the date of termination; and $169,418.22 for consulting fees paid to Kevin Cato (id. at 1-2).
108. There is no question that MOQA left materials on site (R4, tab 177 at 4). However, as Mr. Lawrence, the USACE quality assurance representative testified, "[w]e only pay for stuffthat's approved and submitted. And ifit'sbrought onsite and used in deficient work, we don'tpay for that either." (Tr. 2/37) This presents obstacles to MOQA's claim. Forexample, the second largest item on the list of materials is steel reinforcement (rebar), which MOQA never submitted for approval (tr. 2/51; R4, tab 155 at 2).
109. The largest item onMOQA's materials list is $322,910 for "gravel (crash)" (R4, tab 177 at 4). MOQAhad an approved submittal for the gravel (tr. 2/48-49). But
as Mr. Lawrence testified, the Corps demandedproofthat the gravel thatthe contractor delivered to the site is from the approved sourcebypresentingproofin the form ofa ticket; withoutthe ticketthe Corps will notpay for it (tr. 2/49). Mr. Lawrence never received any tickets for the gravel delivered to the site (tr. 2/50).
110. Further, when shown a March 2012 photo ofthe headquarters building foundation, Mr. Lawrencetestifiedthat he neverreceived any tests that demonstrated that the concrete was acceptable (tr. 2/58). Hetestified thathe could see cracks and deformed work and rebarthat had not been inspected properly by MOQA and that the Corps had planned to rejectthe work (id.).
111. Finally, with respectto the sand and gravel thatremained on site after MOQA finally removed most ofthe other materials and equipment (see finding 105) Mr. Lawrence did not know whathappened to it. However, he testified that he knew that the replacement contractor did not use it because the Corps would nothave paid for it (tr. 2/63).
112. With respect to the materials, construction, and equipment left on site, MOQA's claim simply stated that they "could not be sold orremoved" from the site (R4, tab 177 at 2). Atthe hearing, Mr. Hamidi elaborated on this, contending more or

25less that the Corps ignored its requests for help afterthe Afghan governmentbarred MOQA from removing the property and then expropriated it (tr. 6/284-85, 289-90). Mr. Hamidi also testified the he considered the damages thatMOQA sought to be reasonable and properly allocated to this contract (id. at 280).
113. Mr. Hamidi also testified concerning MOQA'spay estimate No. 3 dated 1October 2011 (tr. 6/281; R4, tab 239). In that pay estimate, MOQA contended that it had completed 57% ofthe work and was entitled to payment ofmore than $959,000. Notably, however, the first page ofthis document contains the term "T4D", a common abbreviation for termination for default. Accordingly, we find that MOQA did not submitthis document until sometime afterthe termination for default, which, in our view severely limits its usefulness for determining MOQA's level ofcompleteness on 1October2011.
114. The largest differences between MOQA's claim for unpaid work and the amountpaid to MOQA relate to the compound size change and differing site conditions modifications. In the final paymentto MOQA, CORChampine calculated that MOQA had earned 21% ($84,761.38) ofthe $406,000 provided in Mod. A00003 for the compound size change (ex. G-5). MOQA contended in its claimthat it is entitled to the entire $406,000 (R4, tab 177 at 77). CORChampine also calculatedthat MOQAwas entitled to 27% ($126,240.49) ofthe $475,000 for Mod. P00003, the differing site condition (ex. G-5). MOQA contended in its claimthat it is entitled to halfofthis amount, or $237,500 (R4, tab 177 at 77).
115. With respect to the compound size change, the largest component ofthis work was a wall around the newperimeter (tr. 5/218). As we have found, this was included in the work thatthe follow-on contractorremoved and replaced (R4, tab 418 at 78, tab 459 at 50). As for the differing site condition, the Corps refusedtopay for backfilling and compaction ofthe replacement fill becauseMOQA failed to provide compaction test results that CORChampinerequested from MOQA (tr. 11120-21, R4, tab 158 at 2). No suchtestresults are in the record.
116. MOQA did notprovide any testimony that explained or substantiated the services ofKevin Cato. MOQA attached invoices from Mr. Cato to the claimbutthey do not explain what services he performed (R4, tab 177 at 89-115).
117. On 1February2016, CO Eileen M. Yorke issued a final decision denying the claim (R4, tab 178). Ofthe four categories ofcosts soughtby MOQA (see finding 107), CO Yorke specifically addressed only MOQA's claim for $842,587.23 for unpaid pay requests; she concludedthat MOQA failed to demonstrate that it was entitled to any additional payment (id. at 4).

26118. MOQA filed a timely notice ofappeal ofthat decision on 22 February 2016, which we docketed as ASBCANo. 60456.
119. The government has not made a claim for re-procurement costs.
DECISION

- ASBCA No. 57963
A. Standard ofReview
The Default clause ofthe contract (FAR 52.249-lO(a)-(b), (d)) provides in relevantpart: "Ifthe Contractorrefuses or fails to prosecute the work, or any separable part, with the diligence that will insure its completion within the time specified in this contract, including any extension

...the Government may, by written notice to the Contractor, terminate the right to proceed with the work." The clause provides that the contract shall notbe terminated ifthe delay is caused, among otherthings, by acts ofthe government in its sovereign or contractual capacity. The clause further provides that the rights and remedies ofthe government in this clause are in addition to any otherrights and remedies provided by law or underthe contract. (Finding 99)

In default cases involving a contractor's failure to make sufficientprogress, the government mayjustifythe termination by demonstrating thatthere was no reasonable likelihood thatthe contractor could complete the entire contract in the time remaining for performance. 

### Lisbon Contractors, Inc. v. UnitedStates, 828 F.2d 759, 765 (Fed. Cir. 1987). The Corps has clearly met this burden. Photos taken afterthe termination show MOQAhaving completed a foundation that the Corps quality assurance representative found to be defective, and not much more (finding 110). MOQA does not contend that it could have completedthe projectin the 22 days that remained on the contract at termination. MOQA's own expert opined that a reasonable completion date would have been 27 May 2012 (finding 7). (We do not acceptthis 27 May 2012 completion date because it would have required MOQAto achieve a level ofproficiency that had**~hus** far eluded it on the project 

### (see, e.g., findings 89-98) butthis date is useful for discussion purposes.)


### B. MOQAhas NotDemonstratedThat its Delay was Excusable
Theburden shifts to MOQAto show that its non-performance was excusable. 

### DCX, Inc. v. Perry, 79 F.3d 132, 134 (Fed. Cir. 1996). MOQA's counsel summarized its contentions at closing argument as follows:

I knowthatthere's a lot ofcomplex facts here, but it's very simple. We should have been given more time. Because of differing site conditions, the collapsible soil, because of Government caused delays, the suspension oftime, and also

27the Government's delay in even negotiating things, right. We should'vejustbeen given more time. (Tr. 8/240-41) MOQA has to prove thatthe Corps delayedthe projectby more than six months to bridge the gap from the 22 November 2011 contract completion date to 27 May 2012, the date specifiedby its expert. Afterthoroughly examining the record and MOQA's briefs, we conclude that MOQA's case has four basic flaws: 1) it has notprovided a credible analysis ofgovernment delays; 2) it has not accounted for the release language in the bilateral modifications that resolved three major delays; 3) it has not accounted for its own considerable delays; and 4) it has no fallback position to explain the delays from June to October2011 ifwe reject its contentionthat Mr. Khadaam sabotaged its performance. The first two points are closely related and we will take them together.
There is no dispute that there was delay for which the government was responsible. The license for construction, the compound size change, and the resolution ofthe collapsible soils delayedthe project and increased MOQA's costs (findings 7, 11, 33). However, for each ofthese delays MOQA signed bilateral modifications in which it agreedthat it had been compensated in full and would perform the work in the time specified (id.). MOQA's closing argument indicates that it believes it should have received more time in the modifications. But it is well settled that release language in modifications is enforceable. 

### BellBC!Co. v. UnitedStates, 570 F.3d 1337, 1340-41 (Fed. Cir. 2009). MOQA's briefaddresses to a certain extent the release language in the modifications. While not entirely clear, the crux ofits argument appears to be a contention that the language in Mod. P00003 should be construed narrowly so that it only releases the work involved in removing the collapsible soil and replacing with acceptable fill (app. hr. at 80-83). The government seems to agree, stating in its reply briefthatthe release language applies only to the work specified in RFP-0003, that is, removing the collapsible soil and replacing it with acceptable fill (gov'treply at 7).

We also agree butthis does not get MOQA very far. With the modification release language takingthe delays due to the license for construction, the compound size change, and the collapsible soils removal/replacement offthe table, there is not all that much government delay MOQA can pointto. One such period oftime mightbe from the issuance ofRFP-0002 on 1February 2011 until its cancelation on 9 March 2011. The direction from the Corps in this RFP was somewhat confusingbecause it at least suggested that MOQA should hold offon redesigning the footings, somethingthat was required by the contract 

### (see findings 29-30). But MOQAhas not proven how much of this timeperiod should be considered government-caused delay. MOQAhas not adequately explained why the one-weekresponse requested by the Corps was

28unreasonable. Norhas it explained why more than five weeks wentby without MOQA submitting aproposal or explaining to the Corps why it was unable to submit one. Thus, it appears that MOQA's inaction prolongedthe delay caused by the issuance of RFP-0002. Moreover, MOQAhas not demonstrated that any government delay was not concurrent with the compound size change delay for which the Corps provided a time extension. Similarly, MOQA appears to contend that the nearly two months between the issuance ofRFP-0003 and the execution ofMod. P00003 (findings 31-33) was not released by the modification and should be considered government delay. Even ifwe were to rule that MOQA did not release the delay during this time period, MOQA has not demonstrated how much ofthis delay shouldbe charged to the governmentrather than MOQA due to its submission ofan inflated initial proposal thatrequired multiple · revisions (findings 32-33).
The difficulty ofMOQA'sburden is illustratedby the decision ofthe Court of Appeals for the Federal Circuit in Empire EnergyManagement Systems, Inc. v. Roche, 362 F.3d 1343 (Fed. Cir. 2004). In the underlying decision that was the subject ofthat appeal, we heldthat a termination wasjustifiedbecause the contractorwould have required an additional 154 days to complete the projectbuthad proven only 53 days of excusable delay. Id. at 1349 (citingEmpire EnergyManagement Systems, Inc., ASBCA No. 46741, 03-1BCAii32,079 at 158,552). In affirming our decision, the Federal Circuit considered contentions by the contractorthat would have increased the number ofexcusable delay days to 106, butheld that eventhis numberwas not enough for the contractorto meet its burdenbecause it was short ofthe required 154 days. Id. at 1351. Accordingly, in this appeal, even ifwe attributed three months ofdelay to the Corps due to RFP-0002 and -0003, MOQA is still a long way from meeting its burden of proving more than six months ofdelay. Other government delays discussed in our findings (providing comments on the initial geotechnical report five days late (finding 23) and requiring a collapsible soils test thattook one to three days to perform (finding 24))
are far too little to get MOQA to more than six months ofgovernment caused delay.

To demonstrate more than six months ofdelay, MOQAwould have to show that the entire period from its 1December 2010 submission ofthe geotechnical report until the execution ofMod. P00003 on 28 May 2011 were USACE delay days, plus it would need to find a few days elsewhere. MOQA cannot showthatthe governmentbears anywhere nearthis level offault, which brings us to ourthird point. MOQAhas not accounted for any ofits own delays. In the contract, MOQA accepted responsibility for the design and agreed to redesign the footings ifthere were problems with the soil. When soil problems occurred, it responded slowly (or not at all) and could not solve them on its own (findings 25, 27, 30, 32-33). MOQA waited until

291December 2010 to submitthe initial geotechnical report, then inexplicably took nearly 8weeks to resubmit that report afterthe 20 December 2010 USACE comments, and took another month to resubmit it afterthe Corps "C" coded it for a second time; took more than 5 weeks to resubmit the 10% design after the initial "C"code; took 12 weeks to submit the 65% design after approval ofthe 10% design, and took an additional 5 weeks to resubmit it afterthe Corps "C" coded the first submission (findings 18, 25, 27, 35-38). MOQA onlyhas itselfto blame for these delays. Finally, because we have rejected MOQA's allegations against Mr. Khadaam, we hold that MOQAbears sole responsibility for the delays from June to October2011. As
·we found, MOQA failed to staffthe project adequately, failed to timely submit and gain approval ofa borrow source, failed to keep an SSHO on the project, failed to submit an adequate recovery plan, failed to keep its major subcontractor on the project, and failed to submit a plan for nightwork (findings 84-85, 90-98). During this time period MOQA squandered its chance to show the Corps that it could complete the project in a timely and workmanlike manner.
C. Additional Bases for Termination
The government need only prove one sufficientbasis for the termination for default. Quality TrustInc., ASBCANo. 59983, 16-1 BCA

## i! 36,368. As we found, however, the contracting officer also based the termination on a failure to provide an adequate Accident Prevention Plan, and MOQA'srepeated failure to establish and implement an adequate Quality Control Program. Butwe can uphold a termination for reasons not cited by the contracting officer in his decision. Empire Energy, 362 F.3d at 1357.
Atthe hearing, the government had somewhat greater ambitions, producing evidence that the termination wasjustified for what could be described as an across the board failure ofMOQAto meet its contractual obligations. The government has proven that MOQA: 1) failed to submit schedules that complied with the contract (findings 41-45, 82, 90-98); 2) failed to timely submit its 65 and 90% designs and never submitted a 100% design (findings 35-39); 3) failed to provide other submittals in a timely manner (findings 46-50, 53); 4) failed to have a qualified SSHO/safety manager on the project at all times (findings 58-63); 5) engaged in misleading conductby providing the governmentwith falsified resumes for the SSHO and altering UPVC pipe to give the impression it was acceptable (findings 59-63, 70); and 6) failed to perform work ofthe quality required by the contract (finding 110). Precedent from the Federal Circuit and this Board contain
numerous examples ofdefaultterminations upheld for comparablereasons. MC. & D. Capital Corp. v. UnitedStates, 948 F.2d 1251, 1256 (Fed. Cir. 1991) (failure to provide specifiedroofand correct deficiencies, and leavingthejob site); Discount Co. v. United States, 554 F.2d 435, 441 (Ct. Cl. 1977) (failure to provide work schedule bolstered government's position that it wasjustifiably insecure about timely completion); Universal Fiberglass Corp. v. UnitedStates, 537 F.2d 393, 398 (Ct. Cl. 1976) (contractorwas not

30making progress, did not have necessary parts and had allowed labor force to wither away); Michael C. Avino, Inc., ASBCA No. 31752, 89-3 BCA,22,156 (alteringtest reports to falsely show concrete met strength specification); Korean Maintenance Co., ASBCA No. 31796, 88-3 BCA,21, 155 (poorperformance, poor work force organization, inadequate quality control); see also 5860 Chicago Ridge, LLCv. UnitedStates, 104 Fed. Cl. 740 (2012) (chronically leaky roof).
As the record demonstrates, this contractpresented considerable challenges. While the Corps provided MOQA with a design, the contract allocated the risk ofthe design to MOQA, placedthe burden ofproducing a geotechnical report and determining soil conditions on MOQA, and required MOQA to redesign ifthe soil conditions were below specifiedparameters (findings 20-21, 28). Moreover, the contractrequired construction to take place in a remote and dangerous section ofAfghanistan that had extreme weather (findings 2-3). While we recognize these challenges, the Board cannot reallocate risk to the government when the contractor suffers adverse consequences from that freely accepted risk. DotSystems, Inc. v. UnitedStates, 231 Ct. Cl. 765, 768 (1982); Natus Corp. v. UnitedStates, 371F.2d450,457-58 (Ct. Cl. 1967).
The record indicates that MOQA did not have the project level management necessary to perform this construction contract for the Corps. Its complaints about the requiredpaperwork (finding 69 n.4), its inability to produce timely and compliant submittals (e.g., findings 47, 50), and its disregard for project safety and quality standards (e.g., findings 57-63) all suggest that it was not prepared for what it was getting into. Although MOQA appears to be a small foreign contractor without a long history of performing contracts for the U.S. Government, we cannot excuse MOQA on this basis because "[a] Government contractor, regardless ofits size, locality or experience, is bound to understand the complexities and consequences ofits undertaking." Tony Downs Foods Co. v. UnitedStates, 530 F.2d 367, 374 (Ct. Cl. 1976) (citing Massachusetts Port Authorityv. UnitedStates, 456 F.2d 782, 784 (Ct. Cl. 1972)).
ASBCA No. 57963 is denied.
ASBCA No. 60456 Having upheld the termination for default, the immediate question is whetherthere is anything left for the Boardto decide with respectto MOQA's monetary claim. In general, a construction contractorwho has been terminated for default is entitled to payment for work that was properly performed in accordance with the contractpriorto the defaulttermination. JG. Enterprises, Inc., ASBCANo. 27150, 83-2 BCA, 16,808 at 83,543. Butthe government contends that we lackjurisdictionbecauseMOQA's claim seemed to be predicated on conversion ofthe default to one for termination for the convenience ofthe government (see gov't suppl. br. at 3-4; finding 107).

31While not a model ofclarity, we conclude that MOQA's claim clearly communicated the notion that it performed work for which it had not beenpaid. The contracting officer appears to have understood this because her decision analyzed whetherMOQA had been paid everything to which it was entitled (see finding 117). Accordingly, we possessjurisdiction. See Scott Timber Co. v. UnitedStates, 333 F.3d 1358, 1365-66 (Fed. Cir. 2003).
As set out in its claim, MOQA seeks payment of$624,740 for materials and $227,915 for construction and machinery left on site (finding 107). Our findings require
us to reject this claim. To the extentthat MOQA left anything ofvalue at the site afterthe termination, MOQA created this problem for itself. As we have found, CORChampine directed MOQAto vacate the site and remove its property on the day aftertermination (finding 100). MOQA failed to do so, lingering for six months in an apparenthope that the Corps would change its mind about the termination (finding 102). To the extentthat materials or equipment were damagedbythe weather, stolen, orexperienced other problems during this time period, MOQA only has itselfto blame. Moreover, the contemporaneous daily reports indicate that MOQA did, in fact, remove all ofits materials and equipment, with the exception ofsand, gravel, and stones (finding 104), which we conclude is the best evidence ofthe disposition ofthis property. Finally, this portion ofthe claim also fails because Mr. Hamidi's testimony does not support liability for the U.S. Government. In its post-hearing briefs, MOQA states that it is entitledto be paid for materials and equipment taken by "the Government," presumably meaning the U.S. Government (app. hr. at 96; app. supp. hr. at 5). However, Mr. Hamidi testified that it was actually the Afghan governmentthat took the property (finding 112). The United States is not responsible for the sovereign acts of other countries and it is therefore not liable to MOQA ifthe Afghan governmenttook the materials and equipment. Zafer TaahhutInsaat ve TicaretA.S. v. UnitedStates, 833 F.3d 1356, 1364 (Fed. Cir. 2016). MOQA also seeks $842,587.23 ofunpaid pay requests for workperformed through the date oftermination. As we found, the Corps paidMOQA $642,840.63, or 25% ofthe contractprice of$2,572,449.11(findings100-01). MOQA has not proven that it was entitled to more. Our findings indicate that MOQA struggled at nearly every aspect ofperforming this contract (see findings 25, 27, 37, 39, 41, 44-45, 47, 49-50, 53, 57-63, 70-71, 76, 84-85, 89-98). Based on MOQA'sperformance and the testimony of Mr. Lawrence, the quality assurance representative, concerning the problems with the concrete and rebarplacedby MOQA, we conclude that the contracting officer did not abuse his discretion in having the replacement contractorremove most ofthe work placed by MOQA and start over (see findings 103, 110). In essence, MOQAreceived 25% ofthe contractprice eventhough it did not accomplish much more than excavating the site (id.). There is no credible evidence to support a higherpaymentto MOQA.

32Finally, with respect to the $169,418.22 ofconsulting fees allegedly paidto Mr. Kevin Cato, MOQA admits in its supplemental briefthat it would not be entitled to these amounts ifthe Board did not convert the termination to one for the convenience of the government (app. supp. br. at 9). Even ifMOQAcouldpursue these costs without conversion ofthe termination, we would deny thembecause MOQA has notproven what services Mr. Cato performed, orwhy they were reasonable in terms ofeffort and price. 

### See Vistas Construction of Illinois, Inc., ASBCA No. 58479 

### etal., 16-1 BCA, 36,236 at I76,796-99.
We deny ASBCANo. 60456.
CONCLUSION

Forthe foregoing reasons, ASBCANos. 57963 and 60456 are denied.
Dated: 7 November 2017

RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContract Appeals

33

# l)!Vl~1).**{)~** MICHAEL N. O'CONNELL AdministrativeJudge Armed Services Board ofContractAppeals

I concur

OWEN C. WILSON Administrative Judge Vice Chairman Armed Services Board ofContract AppealsI certify that the foregoing is atrue copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCANos. 57963, 60456, Appeals of MOQA-AQYOL JV, LTD., rendered in conformance with the Board's Charter.

Dated:

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