ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeals of --

MOQA-AQYOL JV, LTD. 

Under Contract No. W5J9JE-1 O-C-0031 

APPEARANCE FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA Nos. 57963, 60456 

Thomas J. Fraser, Jr., Esq. 

Eavenson, Fraser, Lunsford & Ivan 

Jacksonville, FL 

Thomas J. Warren, Esq. 

Acting Engineer Chief Trial Attorney 

Daniel B. McConnell, Esq. 

Rebecca L. Bockmann, Esq. 

Engineer Trial Attorneys 

U.S. Army Engineer District, Middle East 

Winchester, VA 

OPINION BY ADMINISTRATIVE JUDGE O'CONNELL 

These appeals arise from a contract to build an Afghanistan National Police 

Uniformed Police District Headquarters facility in Dasht-e Qal' eh, Takhar Province, 

Afghanistan. The government's termination for default is at issue in ASBCA No. 57963 

and appellant's monetary claim in ASBCA No. 60456. The Board conducted a hearing 

from 6-18 January 2017 in Falls Church, Virginia. After providing the parties the 

opportunity to file post-hearing briefs, the Board heard 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 of Engineers (Corps or USACE) awarded 

appellant, MOQA-AQYOL JV LTD. (MOQA), a contract to adapt a USACE design for 

a district headquarters compound that consisted of a one-story building for 60 police, a 

dining facility, berthing and offices/conference areas, armory and jail 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 contract price was $1,490,804.67, with a term of 365 days plus 

weather days as specified per province (R4, tab 7 at 2, 33, 36). The original contract failed 
to include Takhar Province, 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 relevant part, added 62 calendar days to the contract term (R4, tab 11 at 2). 

3. A few words on project participants are in order because they illustrate the 

challenges in building this project. At the hearing the Corps presented testimony from 

five of its employees but none of them actually went to the project site because it was 

deemed too dangerous for American civilians (tr. 1/34, 2115). The Corps monitored the 

site from a resident 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 contract the Corps retained native Afghans to act as its 

eyes and ears on the site; specifically, a local national quality assurance representative 

(LNQA), who was supervised by a local national project engineer who, 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 of considerable controversy; 

as we will discuss, depending on who you believe, Mr. Khadaam is either a competent 

young man who was perhaps too patient with MOQA or a disgruntled former MOQA 

employee looking to settle a score. 

5. Due to the work load of Corps employees, the Corps also retained 

Michael Baker Jr., Inc., to review schedules (tr. 1/49), but no employees of that firm 

testified even though scheduling issues are in dispute. Similarly, although geotechnical 

and design-related issues played a prominent role on this project, neither party presented 

testimony from a designer or geotechnical professional. Two employees ofMOQA 

testified, its president and chief executive officer, Murad Hamidi, and its program 

manager from August to October 2011, Jonathan Griffin (tr. 5/283). Mr. Griffin 

testified that he went to the site on just two occasions, including once with Mr. Hamidi 

(tr. 5/317). There is no evidence that Mr. Hamidi made additional site visits. 

6. After the 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 of the replacement contractors testified. 

II. Delays and Other Problems 

7. The project suffered from a number of delays and the Corps found fault with a 

number of aspects ofMOQA's performance. The Corps terminated the contract about 

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three weeks before the 22 November 2011 completion date (on 31 October 2011 ). 

MOQA concedes that it could not complete the project by 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 completed until six 

months (or more) after the scheduled completion. An overview of the 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 20 I 0 (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). The parties 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 provided that: 

It is further understood and agreed that this adjustment 

constitutes compensation in full on behalf of the 

Contractor ... for all costs and markups directly or indirectly 

attributable for the change ordered, for all delays related 

thereto ... and for performance of the change within the time 

frame stated. 

(Id. at 2) (Emphasis added) ("Release Language") 

B. The Compound Size Change 

9. The contract required construction of the compound in a maximum 7 5 x 7 5 

meter area (R4, tab 7 at 42), but the license for construction provided for a 70 x 130 

meter area (R4, tab 51 ). Although MOQA contends in its brief (page 14) that the Corps 

did not tell MOQA about the size change until 13 January 2011, the record 

demonstrates that MOQA knew about the 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 a request 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) It also 

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). 

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11. The parties thereafter executed bilateral Modification No. A00003 on 

7 May 2011 (R4, tab 11 ). This modification increased the contract price by $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 of termination. 

C. Problems with Submittals 

12. Contract section 01312, Quality Control System, provided that the Corps would 

use the "Resident Management System for Windows" (RMS) to monitor and administer 

the contract. It required MOQA to use the Construction Contractor Module of RMS, 

referred to as QCS, to record, maintain, and submit various information throughout the 

contract period. The contract explained that this "joint Government-Contractor use of 

RMS and QCS will facilitate electronic exchange of information and overall management 

of the contract." (R4, tab 7 at 172) The contract required 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 specified that MOQA was 

responsible for maintaining and updating this register, which would be considered the 

"controlling document" for submittals (id. at 213 ). 

13. The contract provisions concerning the RMS/QCS system and MOQA's 

responsibility for tracking submittals are important because there are a number of purported 

submittals discussed below that MOQA did not record in the QCS/RMS submittal register 

(see R4, tab 155). For some of these, the government acknowledges that it received them, 

not through QCS/RMS, but rather as an attachment to a MOQA letter or email (see gov't 

reply at 27-28). But the government denies receiving some documents that MOQA 

contends that it submitted. MOQA contends that something "nefarious" occurred, alleging 

that it uploaded them 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 contract required MOQA to 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 did provide that after acceptance of the 65% 

design submittal the Corps could issue a clearance for construction for work that included 

the foundation and all building features (id. at 32), but the Corps never issued more than a 

narrow clearance, as discussed below.) 

15. Once MOQA submitted the 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 

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then had 14 days to submit the 65% design in which it had to address satisfactorily the 

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 of the 10% design was to ensure that MOQA had developed a test 

well and had produced 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, or two 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 comment would be addressed in the design. MOQA was then supposed to incorporate 

each comment in the next design submission and then "furnish disposition of all comments 

in DrChecks" with that next submittal. (Id., see also id. at 33) 

18. MOQA resubmitted the 10% design on 4 January 2011, 3 8 days after the 

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 of the geotechnical report on 1 December 2010 

(R4, tab 155 at 1). MOQA nevertheless contends that it submitted that report 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 earlier than the date MOQA entered in the submittal 

register, which we find to be the best evidence of the submission date. 

1 The 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). 

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20. Contract section 01015, Technical Requirements - Site Adapt, stated that there 

was no geotechnical information available for the project site and required MOQA to 

obtain the data to 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, MOQA retained 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 of the contract provided that the building 

foundations had been designed for a soil bearing capacity of 0.75kg/cm2 and required 

MOQA to confirm that the soil bearing capacity was no less than this amount. In a key 

requirement, this section required MOQA to redesign the footings if the geotechnical 

investigation showed a bearing capacity less than 0.75kg/cm2. (R4, tab 7 at 80) The 

contract further required MOQA to provide an estimated settlement for building 

foundation loads in the geotechnical report (id. at 192). 

22. In its report, Pamir Geotech recorded the presence of thick deposits ofloess 

(or "collapsible") soil, a type of loose, windblown silt, not suitable for construction (R4, 

tab 388 at 1, 17; tr. 5/79). It found that the bearing capacity of the soil was less than the 

0.75kg/cm2 required by the contract, and was either 0.69 or 0.73, depending on the 

testing method (R4, tab 388 at 31, 34). 

23. The Corps reviewed the geotechnical report and returned it to MOQA with a 

"C" code on 20 December 2010, or five days after the 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 that the design would 

not need to be changed had Pamir Geotech considered the actual footing width rather 

than an assumed width of one meter, and stated that MOQA should have Pamir 

reanalyze the results using the actual footing width2 (R4, tab 388 at 4). 

24. The Corps submittal response also required MOQA to perform a test to 

measure the collapse potential of soils 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 hearing that this test took one to three days to perform (tr. 7/96).) Finally, the 

Corps also observed that MOQA had failed to complete the maximum settlement 

estimates required by the contract (R4, tab 388 at 4). 

25. MOQA appears to have done little to advance the geotechnical report or 

determine if the footings needed to be redesigned for five weeks following the 

20 December USACE comments. Finally, on 25 January 2011, it submitted a request 

2 MOQA did not provide the Board any analysis of the time impact of performing this 

analysis compared to the contractual requirement to redesign the footings. 

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for information (RFI-0004) to the Corps that referenced USACE's 20 December 

geotechnical comments, and asked the Corps to provide the dead loads (the weight of all 

materials of construction incorporated in the buildings) (R4, tab 5 5 at 1-2, tab 7 at 81 ). 

The Corps did not provide MOQA the dead loads, but it did respond to the RFI on 

31 January 2011 by stating that it would issue an RFP as a result of the 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). Our review of 

the contract does not reveal any such promise. An internal Corps email indicates that 

the Corps did not have the dead loads (R4, tab 422 at 124). MOQA acknowledges in its 

reply brief that it was able to calculate the dead loads (app. reply at 7). 

. 27. MOQA failed to submit the revised geotechnical report until 12 February 2011 

(54 days after the USACE comments); the Corps provided its comments 5 days later on 

17 February 2011 (R4, tab 155 at 1). While MOQA addressed the ASTM test for 

collapsible soils, it once again failed to provide the settlement estimates and the Corps 

again gave the report a "C" code, requiring MOQA to resubmit it (R4, tab 278). MOQA 

submitted the report for a third time on 17 March 2011 (one month after the USA CE 

comments) and the Corps approved it with a "B" code three days later (R4, tab 155 at 1). 

c. RFP-0002 & -0003: Solving the Soil Problems 

28. The contract provided that, unless otherwise indicated, "the risk for the design is 

the sole responsibility of the Contractor" (R4, tab 7 at 192). Despite allocating this risk to 

MOQA (including the obligation to redesign if the soil had a bearing capacity less than 

0.75 kg/cm2), the Corps accepted that it did not require MOQA to 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 concur that 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 ( 1 February 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 MOQA to reflect the changes in the 65% design drawings and to submit within 

seven days (8 February 2011) an itemized proposal for performing the work. She also 

cautioned MOQA that this was not a notice to proceed with the work and that it should 

not begin performing the work until it had a signed modification. (R4, tab 59) 

30. MOQA did not seek clarification ofRFP-0002, nor did it inform the Corps 

that it could not submit a proposal without the dead loads. But MOQA did not submit a 

proposal or seek an extension by the 8 February deadline. Another month passed without 

7 
MOQA 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 of the collapsible soils to a depth of three meters below the bottom of the 

foundation within the building footprint and replacement with 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 ACO told MOQA that 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 a proposal on 11 April 2011, four days later than 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 about triple what the Corps had estimated (R4, 

tab 454) and more than the original contract price, in part because MOQA included 

costs for the cancelled RFP-0002 (R4, tab 79 at 13). 

33. Thereafter, the parties entered into protracted negotiations and MOQA revised 

its proposal four times (R4, tab 422 at 99). Ultimately, the parties signed bilateral 

Modification No. 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 similar to the earlier modifications but stated that the contract term had not 

changed: 

It is understood and agreed that pursuant to the above, the 

contract time is not affected, and the contract price is 

increased as stated above .... It is further understood and 

agreed that this adjustment constitutes compensation in full 

on behalf of the Contractor ... for all costs and markups 

directly or indirectly attributable for the change ordered, for 

all delays related thereto ... and for performance of the 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 

estimated that the 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 Baker Jr., 

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Inc., 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 surprised that 

MOQA did not ask for more time. He had negotiated differing site conditions 

modifications in the past with contractors who did not ask for more time, and, because the 

parties had just negotiated 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 that presented all 

information necessary to "Site Adapt" the fully designed and detailed buildings and 

other project 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 of the 65% design in April 2011, MOQA contends that 

the pending RFPs for the compound size change and collapsible soils prevented MOQA 

from working on the 65% design until the parties signed these modifications in May 2011 

(e.g., app. br. at 32; app. reply at 8). MOQA has not provided us with any testimony from 

its designers or an expert that would explain a contention that seems to be refuted by its 

submission of the 65% design prior to execution of these modifications. 

37. In any event, the Corps found MOQA's initial 65% submittal to be lacking, with 

one of its engineers writing that MOQA had: omitted the design analysis, geotechnical 

analysis, site utility design, and survey/topographic map; that the septic tank and foundation 

designs were incorrect; and that MOQA had modified some of the site-adapt designs 

without explanation. He concluded that the "submittal does not represent a 65% design 

submittal." (R4, tab 397) The Corps returned the submittal to MOQA with a "C" code on 

27 April 2011 (R4, tab 155 at 2). MOQA resubmitted 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 submit the 90% design until 3 October 2011, about three 

months late (R4, tab 155 at 2). MOQA contends in its reply briefthat it submitted the 

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 MOQA has not pointed 

us to any other evidence of its submission, such as a discussion at a weekly meeting. 

Thus, we conclude that MOQA submitted the 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 contest the rejection and sent its designer a cure 

notice on 25 October 2011 (R4, tab 269 at 6). MOQA did not resubmit the 90% design 

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before 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 of requirements concerning project 

schedules (R4, tab 7 at 179-90). Paragraph 3.1, General Requirements, provided that 

scheduling of design and construction was MOQA's responsibility. It provided that the 

approved project schedule would be used to measure progress of the work, to aid in 

evaluating time extensions, and to provide the basis of all progress payments. (Id. at 

179) Paragraph 3 .2, Basis for Payment, provided that the lack of an approved schedule 

would result in an "inability of the Contracting Officer to evaluate Contractor's progress 

for the purposes of payment." Similarly, it provided that MOQA's failure to provide all 

information required in section 01321 would result in disapproval of the schedule and an 

inability of the contracting officer to evaluate progress for payment purposes. (Id.) 

41. The contract required MOQA to include a narrative report with the 

preliminary schedule as well as all updates. The narrative was to include a description 

of activities along the two most critical paths, a description of current and anticipated 

problem areas or delaying factors and their impact, and an explanation of corrective 

actions taken or required to be taken. (R4, tab 7 at 185) MOQA failed to include this 

narrative with most of the schedules it submitted. 

42. The contract required MOQA to submit the initial project schedule (referred to 

as a baseline schedule) within 30 days of contract 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. MOQA thus had eight days from the 

resumption of work on 26 August 2010 to submit the schedule, that is, until 2 September 

2010. MOQA did not meet this date, or even a date 30 days from the lifting of the 

suspension, rather it submitted the baseline schedule on 18 December 2010, 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 past the then-contract date of 22 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 ). It is 

not entirely clear why MOQA showed late completion at this relatively early juncture, 

but the major reason is that MOQA listed the license for construction work stoppage as 

ending on 20 September 2010 rather than the correct date of 25 August 2010, an 

addition of 26 days (R4, tab 4 7, tab 213 at 6). 

44. The contract required MOQA to submit periodic schedule updates to enable 

the contracting officer to assess its progress. If MOQA failed to furnish the schedule data 

10 
that the contracting officer determined was necessary to verify its progress, MOQA 

would be deemed to have not provided 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 submitted revised baseline schedules on 

27 September 2011 ("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't reply 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 (without the 

narrative) (R4, tabs 479, 491, 495); on 28 August 2011 (R4, tab 307 (this tab contains a 

transmittal form but not the schedule)); and two in October 2011 (R4, tabs 303, 490) 

(without the narrative). The Corps did not approve any of these updates. 

E. Other Submittals 

1. Area Use Plan 

46. The contract required MOQA to submit within 10 days of award an area use 

plan that designated its intended use of all areas in the project site. The contract 

provided that MOQA could not "begin construction of the mobilization facilities" 

before the contracting officer approved the area use plan (R4, tab 7 at 149), which 

would bar it 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 of the license for construction. 

47. MOQA's president, Mr. Hamidi, testified that he viewed the area use plan as 

"not a big deal" but he agreed that the contract required it before MOQA could start 

working on the site (tr. 7 /16-20). Mr. Hamidi also testified that he understood the area 

use plan to be due 10 days after the 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 of August 2010. The record indicates, 

however, that MOQA did not submit the area use plan until 20 March 2011 (R4, tab 155 

at 1), more than six months late under MOQA's more lenient calculation of the due date. 

48. MOQA contends in its brief that it submitted the area use plan on 29 June 

2010 (app. br. at 29 (citing R4, tab 288 at 10)) but the weight of the evidence supports 

the Corps' position. First, MOQA never entered a 29 June plan in the submittal register 

_(R4, tab 15 5), which we consider the best evidence of submittal dates. Second, when 

the contracting officer's representative wrote to MOQA on 16 March 2011 citing 

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MOQA's failure to submit the plan (R4, tab 63), MOQA did not reply that it had 

submitted the plan. Rather, it submitted the 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 of Entry Coordinate Data 

49. The contract required MOQA to submit to the contracting officer's 

representative (COR) as a preconstruction submittal right of entry coordinate data (R4, 

tab 7 at 36, 40). The submittal was to contain an exhibit illustrating the limits, 

boundaries, and coordinates representing the right of entry, among other things (id.). 

MOQA did not submit this data until 5 July 2011; the Corps rejected it with 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 "failed to recognize that the coordinate data included 

within the Contract was incorrect," which may be true, but presumably that was why the 

government wanted it confirmed (app. reply at 3 (citing R4, tab 7 at 40)). MOQA does 

not explain why it never resubmitted this information. 

111. Master Site Plan 

50. The contract required MOQA to submit a master site plan within 20 days of 

the notice to proceed (R4, tab 7 at 42). Taking into account the suspension of work due 

to the license for construction, this submittal was due in early September 2010. During 

his testimony, Mr. Hamidi testified that this 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 15 5 at 1 ). MOQA does not address this in its reply brief other than 

to contend that it did not delay the critical path (app. reply at 3). 

1v. Quality Control Plan and Accident Prevention Plan 

51. The contract provided that MOQA was responsible for quality control (QC 

or CQC3) and for establishing and maintaining an effective quality control system (R4, 

tab 7 at 238). It required MOQA to submit a QC plan that covered all construction 

operations, both on site and off site, including work by subcontractors, fabricators, 

suppliers and purchasing agents. 

52. The contract required 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. MOQA was to submit the plan by no later than five days after receipt of the 

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 MOQA to submit an accident prevention plan 

(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 other things, 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 contract required an SSHO to be present at the site at 

all times to perform safety and occupational health management, surveillance, 

inspections, and safety enforcement for MOQA (id. at 253). The contract provided that 

disregarding provisions of the contract or APP would be cause for the contracting 

officer to stop work (id. at 256). 

56. MOQA's APP did not identify an SSHO, but it identified Asif Dashty as 

performing the role of safety and health manager/chief safety engineer (R4, tab 56 at 13). 

The record indicates that both parties understood Mr. Dashty to be the SSHO (see R4, 

tab 117 at 8; gov't br. 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. During the course of the project there were disputes between the parties 

concerning MOQA's safety practices and its CQC and safety personnel. For example, 

on 18 June 2011, Chester Lawrence, the USA CE 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 without hard hats, safety glasses, vests, and 

proper footwear, he warned MOQA that this 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 MOQA that MOQA's recent 

QC reports indicated that it did not have a CQC manager on site (R4, tab 71 ). On 3 May 

2011 the parties met for a bi-weekly progress meeting at which the Corps representatives 

met a new MOQA CQC manager and new safety manager who had not been submitted to 

the Corps for approval (R4, tab 73 at 2, 4). On 16 May 2011 MOQA emailed resumes for 

13 
the new personnel, including the safety manager, Muhammad AsifMashal (R4, tab 75 at 

6). Upon review, COR Gatlin 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 of SSHO when it is clear by his resume that he does not meet the minimal 

requirements to be in this position" (R4, tab 126). He directed MOQA to 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). By this 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 LNQA photographed 

workers without hard hats, safety glasses, etc.). Work at the site stopped for 18 days 

while MOQA retained and gained approval of a new SSHO (R4, tab 183 at 899-925). 

61. Mr. Hamidi (MOQA's president) wrote back the following day (17 August), 

admitting that the company had submitted "wrong information." He stated that 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 submitted to COR Gatlin names and 

resumes for new personnel, including an SSHO (R4, tab 129). Unfortunately for 

MOQA, COR Gatlin was aware that the USACE safety office had previously rejected 

this person on another project. Even worse for MOQA, when COR Gatlin compared the 

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. COR Gatlin wrote to MOQA on 23 August 2011, stating in relevant part that 

"your office was trying to give the appearance that Mr. Faryad was qualified for the 

position of Site Safety and Health Officer when it is clear by his Resume that he is not. 

This is the second time the government has notified your office of providing such 

information." (R4, tab 133) There does not appear to be any document in the record 

where MOQA denied this charge (see R4, tab 139 (contracting officer's letter dated 

14 
21 September 2011 noting lack of response 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 of reasons. Although short on 

specifics, the REA sought among other things: additional money for the license for 

construction delay (not mentioning the bilateral modification it had signed); additional 

time from 4 September to December 2010 for "submittals of 65% Design, scheduling 

and additional paper work of the contract" (even though it did not submit the 65% 

design during this period); and adverse weather from December 2010 to March 2011 

(despite the lack of an approved design necessary to start work). (R4, tab 82) The 

contracting officer denied the REA on 20 June 2011 (R4, tab 89). 

III. The Local National Quality Assurance Representative (LNQA) 

65. MOQA attributes many of its problems to the LNQA, Habibullah Khadaam. 

It has produced an employment record reflecting that it hired Mr. Khadaam to be a QC 

manager on a different MOQA contract on 27 January 2011 (R4, tab 456). Mr. Hamidi 

testified that he soon terminated Mr. Khadaam because Mr. Khadaam wanted to work in 

the office rather than at the job site (tr. 6/240). Mr. Khadaam began working on the 

instant contract- on site - in early April 2011 (R4, tabs 68, 182 at 322). MOQA did not 

protest Mr. Khadaam's presence at the site. 

66. The closest we have come to finding a MOQA complaint about Mr. Khadaam in 

his first months on the project occurred on 18 June 2011 when the USA CE quality 

assurance representative, Chester Lawrence, emailed MOQA about several safety and 

quality issues. MOQA did not deny that any of the problems existed but it asked the Corps 

to instruct Mr. Khadaam that he was part of a "team" and should try to work out issues with 

MOQA before bringing them to the attention of the Corps. (R4, tab 88 at 1) 

67. Mr. Lawrence testified that he did not see anything that indicated Mr. Khadaam 

was biased or unduly harsh towards MOQA or that he was putting inaccurate information 

in the daily reports. He testified that he did not receive any complaints by MOQA about 

Mr. Khadaam during the first four months he was on the project. He testified, that he 

"probably would have instructed him [Mr. Khadaam] to be a little bit more critical." 

(Tr. 2/82-83) He further testified that he observed Mr. Khadaam interact with MOQA 

employees in a friendly manner, that they drove from the site to the meetings together, ate 

lunch together and talked together (id.). We found this testimony credible. 

68. On the morning of 11August2011, Mr. Khadaam emailed Mr. Lawrence his 

daily report for the previous day; he stated in the email that the report was late because 

15 
MOQA did not have constant electricity on site (R4, tab 403 at 2). Mr. Lawrence then 

·wrote to MOQA 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 of the contract by not having an SSHO on site (id.). 

69. Mr. Hamidi responded later that day and did not deny that Mr. Khadaam had 

accurately reported the 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 referring to 

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 causing problems at the site (tr. 4/241-42). The Corps 

then agreed to switch Mr. Khadaam to another project (ex. G-10). 

70. Musadiq Sadiqi replaced Mr. Khadaam as the LNQA (R4, tab 182 at 559). 

Almost immediately, he caught MOQA attempting to substitute UPVC pipe for PVC 

pipe for the water well casing (R4, tab 128). (PVC is polyvinyl chloride; UPVC is 

unplasticized PVC (tr. 4/320; R4, tab 7 at 67).) MOQA had previously submitted the 

UPVC but the Corps had rejected it because "it doesn't hold up for stuff like well 

casings" (tr. 4/321; R4, tab 502 at 1132-33). Mr. Sadiqi caught MOQA scratching or 

shaving the "U" off "UPVC" (R4, tab 128). 

71. Both Mr. Lawrence and COR Gatlin testified that the daily reports about 

MOQA's performance were similar after the Corps ordered Mr. Khadaam's transfer 

(tr. 2/189, 278, 4/254-55). For example, after the shutdown ended due to the lack of a 

MOQA safety officer, the 6 September 2011 quality assurance report notes that a MOQA 

supervisor was "not professional," that rebar on a guard tower was rusty and unacceptable, 

and that the guards who were supposed to be providing security per MOQA's security plan 

had left "months ago" (R4, tab 182 at 596). On 13 September the quality assurance report 

states that the MOQA QC manager "is not qualified to QC not understand the Corps work 

procedure and QC definition what WC mean [sic]." It also stated that this same employee 

was performing survey but was "not qualified to survey." It further noted that when 

quality assurance found a deficiency at the site there was no one at MOQA to talk to 

because the QC manager was 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 of a surveyor on site (id. at 616). 

4 In this email, Mr. Hamidi also complained that the paperwork required by the contract 

was "extremely high" and stated that MOQA was still having a problem with it 

even though it had hired three U.S. citizens to work on USACE projects. 

16 
72. 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 of information 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 report back to the job site (R4, tab 411; tr. 1/194). 

73. At the hearing, MOQA's counsel floated a theory that reports from the local 

nationals stayed negative after Mr. Khadaam' s departure because they were all from the 

same tribe (tr. 2/237). In its post-hearing brief, however, MOQA has settled on a theory 

that Mr. Khadaam never really left the site (app. br. at 92). Otherwise, MOQA has little 

to say about the actions of Mr. Sapiqi or the other local nationals. We find that there is 

no evidence to support the contention that Mr. Khadaam stayed on the site. The Corps 

had transferred him to another site that was some hours away and surely would have 

noticed ifhe had not reported to that site. (R4, tab 411; ex. G-10) 

74. MOQA's first written salvo against Mr. Khadaam did not occur until the 

Corps issued its final performance evaluation for MOQA (post-termination) on 

1 February 2012 (R4, tab 224). In the "contractor remarks" section of the evaluation, 

MOQA contended that Mr. Khadaam had been dismissed from MOQA for 

"unsatisfactory performance" and that he had "extreme revulsion" against MOQA and 

that "[ d]ue to his revenge and provocation" a conflict had occurred between MOQA and 

its subcontractor, Amiry Brothers (id. at 3). 

75. MOQA makes an assortment of other allegations against Mr. Khadaam, 

including that he was: interfering with MOQA's work; submitting biased reports; 

committing extortion; soliciting bribes; that he had "plants" who would apply for jobs at 

MOQA and, after they were hired, he would declare them to be unqualified; and that 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 between MOQA and an unnamed subcontractor 

"because of invoice payment & some other illogical reasons" (R4, tab 123 at 3). This 

report further states that the subcontractor had expended $130,000 but had not been paid 

and was not going to work anymore (id. at 7-8). On 8 October 2011, MOQA notified the 

new USACE COR, Theodore Champine, that it (MOQA) had terminated Amiry 

Brothers' subcontract "because he 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). 

17 
77. Amiry Brothers shifted its position somewhat on 17 December 2011 - about 

six weeks after the Corps terminated MOQA - when it sent another email to 

Mr. Lawrence stating that it had sent the 23 October email "unfortunately by mistake," 

and that it had been paid by MOQA (R4, tab 440). Notably, it did not make any 

allegations against Mr. Khadaam. 

78. More than five years later (25 December 2016), virtually on the eve of trial, 

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 "managed to provoke our company against" MOQA (R4, 

tab 489). He alleged that Mr. Khadaam had "encouraged our on-site employees to act 

against MOQA" and had "even made my brother to send an official e-mail complaining 

against MOQA[] and claiming that we are not getting our payments on time whereas we 

used to receive regular payments" (id.). He further alleged that Mr. Khadaam had 

promised Amiry Brothers that if they caused MOQA's termination, he would re-award the 

contract to Amiry Brothers based on his strong ties with the Kunduz resident office (id.). 

79. We find the 25 December 2016 Amiry Brothers letter to be completely 

incredible because it is inconsistent with its contemporaneous statements during the 

project and raises allegations for the first time more than five years after the fact. Nor 

do we believe any of MOQA's other unsubstantiated allegations against Mr. Khadaam, 

who is a virtual Swiss Army knife of a villain for MOQA to explain poor quality work, 

safety lapses, subcontractor complaints of nonpayment, and the submission of falsified 

resumes. It is simply too much for us to swallow. 

80. IfMr. Khadaam really had reason to be disgruntled with MOQA we believe 

it to be more likely than not that MOQA would have complained about him to the Corps 

either right when he started or at least when there was the first sign of retaliation. To 

accept Amiry Brothers' new allegations as true, we would have to disregard not only its 

contemporaneous statements but the credible testimony of Corps employees who: 

observed amicable relations between Mr. Khadaam employees; received similar reports 

from Mr. Khadaam's superiors and his replacement, and who were in a position to 

observe MOQA's general ineptness with respect to both the design and construction of 

the project. 

IV. Progress of Construction: March to October 2011 

A. March to May 

81. As described above, the contract generally barred MOQA from beginning 

construction until the Corps had approved the design, although it did provide that the 

Corps could grant a clearance for construction for foundation and other work after 

approval of the 65% design (R4, tab 7 at 32). Notwithstanding these provisions, on 

18 
28 March 2011 (before MOQA had 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 of concern dated 8 May 2011, the COR demanded that MOQA submit a recovery 

schedule by 17 May 2011 (R4, tab 74). MOQA did not meet that deadline but on 

31 May 2011 it submitted what it referred to as a recovery plan, which showed a 

project completion date of 4 January 2012 (R4, tab 470). 

B. 28 June to 1 October: Foundation Work 

83. The parties agree that the concrete block building at issue can be constructed 

quickly, at least if competent personnel and sufficient resources are applied. For example, 

MOQA points us to the following testimony from the Office Engineer, Dickson Boadi: 

(Tr. 2/320) 

Q. Was the building a complex building? 

A. No. It's not a complex building. It's a simple CMU 

[concrete masonry unit] block structure .... 

And that structure, if you have your foundation down, 

within a week or two you can have all your block work up. 

It's, I'm not kidding you. Within a week or two there are 

masons onsite, they can erect all the block work up and you 

can have your roof up in no time. 

84. MOQA started the foundation work on the 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 on performing this work from 7 January to 9 February 

2011, a duration of 34 days (R4, tab 47 at 1, lines 27-33). Thirty-four days from the 

actual start date of 28 June projected to a completion of the foundation on 31 July 2011. 

The parties agree that MOQA did not complete the foundation until 1 October 2011 

(gov't br. at 29; app. br. at 68), which represents a delay of more than two months. 

There are multiple reasons for this delay, all of which are MOQA's responsibility, 

including insufficient workers 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 of an SSHO, as 

described above. 

19 
85. Further, MOQA attempted to skip the submission of a borrow source for the 

fill. On 11 July 2011, COR Gatlin wrote to MOQA stating that it had come to his 

attention that MOQA had been placing unapproved backfill in the over-excavated areas, 

despite the requirement in Mod. P00003 that the borrow source be approved by the COR 

(R4, tab 109 (citing tab 12 at 4)). COR Gatlin directed MOQA to submit the borrow 

source in the next two days and to not place any more material until it had been 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). MOQA resubmitted it but 

the end result was that MOQA did not have an approved borrow site until 11 August 2011 

(id.). 

C. LNQA Khadaam's Alleged Delays 

86. MOQA does not have much to say in response to the delays in the summer 

of 2011, other than making additional allegations against Mr. Khadaam. It contends 

Mr. Khadaam not only required MOQA to lab test material at the borrow site, but also 

to have a lab at the 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 the precise language it is relying upon but presumably it is a statement 

that "[t]he contractor didn't provide 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 submit the borrow source for the fill to the COR for approval, specified the 

acceptable types of soil that could be used and prescribed limits for compaction density, 

moisture content, and the height of lift layers. It also specifically provided for 

classification of the materials when brought on site. (Id. at 4) Thus, the contract clearly 

required some on-site testing of the 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 of the fill as another form of revenge for being fired - we would expect to see 

some documentation in the record complaining about this, but MOQA has not produced 

any. There is no evidence that the government required more testing of the soil than 

required by the contract. 

89. Finally, we would be remiss if we did not also observe that the quality 

assurance reports MOQA directed us to in support of its contentions on this issue contain 

unflattering statements about its overall performance of the contract. The reports for the 

15-19 June 2011 time period state, among other things: 

20 
• The security manager is not experienced & he 

doesn't know even one word about security issues, 

actually he is the finance officer of this project for 

MOQA, but MOQA is using him as a security 

manager too; 

• 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 

and they seem poor strength; 

• [We] don't have surveyor on site because of the QC 

manager's absent & the PM finished the walls 

excavation without having any direction of surveyor 

or knowing of the finished grade; 

• [T]he electricity system for temporary facility 

installed improperly (No grounding, No main panel 

board); 

• [T]oilets are unusable because of not installing water 

tank & septic. 

(R4, tab 182 at 416-23) 

D. July to October: Final Efforts to Get MOQA on Schedule 

90. With performance of the work continuing to lag, on 5 July 2011, COR Gatlin 

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 the recovery schedule must show a number of activities on the 

critical path that 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, COR Gatlin wrote to MOQA, stating 

that MOQA had submitted a schedule on 21 July 2011 but it did not meet the 

requirements for a recovery schedule because it did not contain a narrative explaining 

21 
how additional resources would be used to reduce the negative float; he requested 

MOQA provide the information immediately (R4, tab 116). 

91. On 30 July 2011, MOQA submitted another 90-day recovery schedule (R4, 

tab 4 77). MOQA stated that it would add a second shift as soon as the status of its 

submittals allowed and stated that it would be submitting a night shift safety plan (id. 

at 3). (This is the only schedule we have seen that includes the required narrative.) 

MOQA did not submit anything on the night shift and on 21 August 2011 COR Gatlin 

wrote to MOQA reminding it that 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 Baker Jr., Inc., for review (R4, tab 495). The Michael Baker 

reviewer observed that the schedule showed MOQA having completed 52% of the work 

while the RMS system showed only 31 %. He recommended acceptance only if work 

placement for the months of June and July matched what MOQA had indicated in the 

schedule and MOQA was working seven days per week. (Id. at 1) Notably, MOQA 

represented in the schedule that it had completed nearly one-third of all project work in 

July (id. at 8), which is not credible because it did not even have an approved borrow 

source and because its work hours trended down for most of the month (compare R4, 

tab 183 at 804 (3 80 combined work hours for MOQA and Amiry Bros. on 1 July 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)). COR Gatlin wrote to MOQA on 

21 August 2011 stating that the June and July progress had not occurred and that the 

schedule was, therefore, unrealistic and was rejected (R4, tab 302). 

93. On 23 August 2011, COR Gatlin sent MOQA another letter of concern. In 

this letter, COR Gatlin stated that, based on a contract completion date of 22 November 

2011, MOQA should be 92% complete but the Corps estimated its progress at 20%. 

COR Gatlin demanded that MOQA submit a recovery schedule by 30 August 2011. 

(R4, tab 133) 

94. On 21 September 2011, the contracting officer sent MOQA a cure notice in 

which he stated that MOQA had not responded to the 23 August letter of concern or 

provided an updated recovery schedule (R4, tab 139). The contracting officer stated 

that it no longer appeared possible for MOQA to complete the project on time. The 

contracting officer demanded that MOQA cure the condition within 10 days or he 

would consider terminating the contract for default. 

95. MOQA responded with a letter dated 30 September 2011 (R4, tab 141). It 

acknowledged its "lack of progress" and expressed a "sincere desire and intent to 

complete the project as well as improve our performance." Further, it stated that "[i]n 

response to our deficiencies, we have ... completely reorganized our management and 

22 
processes." It stated 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 October 2011, COR Champine, asked MOQA's project manager when it would 

achieve "real completion" of the project. He replied that ifthere were no problems with 

submittals, drawings, and construction supplies MOQA would complete the project in 

seven months, or about five months late. (R4, tab 144 at 2-3) 

98. Within four days something did go wrong, because MOQA terminated 

Amiry Brothers (R4, tab 145). Termination of Amiry was a significant problem because 

Amiry was responsible for most of the actual work on the site (see R4, tab 78 at 3 

(identifying Amiry's scope of work 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 complained to USA CE that it had not been paid by 

MOQA (R4, tab 150). Further, on 27 October 2011, Michael Baker recommended 

rejection ofMOQA's 19 October schedule update because MOQA had "unreasonably 

shortened activity durations in an effort to forecast a compliant project completion date 

and not [sic] doubt to facilitate payment exceeding 50% of the contract value" (R4, 

tab 493). 

V. Termination for Default and the Aftermath 

99. On 31 October 2011, the contracting officer, Willie R. Brame, terminated 

MOQA's contract for default (R4, tab 4). As stated by 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 the project on time, having completed only 30% of the work while using up 

527 of the 549 days in the contract term; 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 MOQA to demobilize from 

the site and remove any equipment and any stockpiled materials for which it had not 

23 
been paid (R4, tab 365 at 184). On 3 November 2011, COR Champine sent the 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). COR Champine relied 

on this information to calculate the final payment due MOQA (tr. 11114, 134-37). 

COR Champine, with assistance from Mr. Lawrence, calculated that MOQA was 

entitled to $642,840.63, or about 25% of the contract price of $2,572,449.11 (R4, 

tab 181; tr. 11230). (Mr. Lawrence testified that he disagreed. He concluded based on 

the amount of defective work that had to be removed by the replacement contractor that 

MOQA had completed only 20% (tr. 2/71).) 

101. In any event, COR Champine performed this 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 consideration previous payments, COR Champine 

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 COR Champine's 1November2011 

direction to vacate the site, MOQA was 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 7 February 2012 asserting its "right to maintain security of their 

financial holdings being the jobsite and any/all materials" (R4, tab 3). On 22 March 

2012, MOQA again wrote to the Corps, stating that it was maintaining "site security" to 

protect its "vested interest" and alluded to the possibility of "civil unrest in the village" 

ifthe Corps did not allow MOQA to resume work (R4, tab 162). 

103. The Corps awarded a contract to Barnie Global Construction Company on 

29 February 2012 to complete the project (R4, tab 184). Barnie's scope of work included 

removal ofMOQA's foundation for the headquarters building, the perimeter wall 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 equipment belonging to MOQA were still on the 

site: "Cement, steel re bar, forms, scaffolding pipe, stone, sand, gravel, wheelbarrow, 

shovels and etc." (R4, tab 459 at 2). Although somewhat difficult to tell because text in 

the reports was carried forward unnecessarily from day to day, MOQA appears to have 

removed everything but the 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 completed the project in April 2015 (R4, tab 211). 

24 
VI. Claims and Appeals 

106. On 24 January 2012, MOQA timely appealed the termination for default. 

The Board assigned the appeal ASBCA No. 57963. 

107. On 1 December 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 of the 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 unpaid pay 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 stuff that's approved and submitted. And if it's brought onsite and 

used in deficient work, we don't pay for that either." (Tr. 2/37) This presents 

obstacles to MOQA's claim. For example, 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 on MOQA's materials list is $322,910 for "gravel (crash)" 

(R4, tab 177 at 4). MOQA had an approved submittal for the gravel (tr. 2/48-49). But 

as Mr. Lawrence testified, the Corps demanded proof that the gravel that the contractor 

delivered to the site is from the approved source by presenting proof in the form of a 

ticket; without the ticket the Corps will not pay 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 of the headquarters building 

foundation, Mr. Lawrence testified that he never received any tests that demonstrated 

that the concrete was acceptable (tr. 2/58). He testified that he could see cracks and 

deformed work and rebar that had not been inspected properly by MOQA and that the 

Corps had planned to reject the work (id.). 

111. Finally, with respect to the sand and gravel that remained on site after 

MOQA finally removed most of the other materials and equipment (see finding 105) 

Mr. Lawrence did not know what happened to it. However, he testified that he knew that 

the replacement contractor did not use it because the Corps would not have 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 or removed" from the site 

(R4, tab 177 at 2). At the hearing, Mr. Hamidi elaborated on this, contending more or 

25 
less that the Corps ignored its requests for help after the Afghan government barred 

MOQA from removing the property and then expropriated it (tr. 6/284-85, 289-90). 

Mr. Hamidi also testified the he considered the damages that MOQA sought to be 

reasonable and properly allocated to this contract (id. at 280). 

113. Mr. Hamidi also testified concerning MOQA's pay estimate No. 3 dated 

1 October 2011 (tr. 6/281; R4, tab 239). In that pay estimate, MOQA contended that it 

had completed 57% of the work and was entitled to payment of more than $959,000. 

Notably, however, the first page of this document contains the term "T4D", a common 

abbreviation for termination for default. Accordingly, we find that MOQA did not 

submit this document until sometime after the termination for default, which, in our view 

severely limits its usefulness for determining MOQA's level of completeness on 

1 October 2011. 

114. The largest differences between MOQA's claim for unpaid work and the 

amount paid to MOQA relate to the compound size change and differing site conditions 

modifications. In the final payment to MOQA, COR Champine calculated that MOQA 

had earned 21% ($84,761.38) of the $406,000 provided in Mod. A00003 for the 

compound size change (ex. G-5). MOQA contended in its claim that it is entitled to the 

entire $406,000 (R4, tab 177 at 77). COR Champine also calculated that MOQA was 

entitled to 27% ($126,240.49) of the $475,000 for Mod. P00003, the differing site 

condition (ex. G-5). MOQA contended in its claim that it is entitled to half of this 

amount, or $237,500 (R4, tab 177 at 77). 

115. With respect to the compound size change, the largest component of this 

work was a wall around the new perimeter (tr. 5/218). As we have found, this was 

included in the work that the follow-on contractor removed and replaced (R4, tab 418 at 

78, tab 459 at 50). As for the differing site condition, the Corps refused to pay for 

backfilling and compaction of the replacement fill because MOQA failed to provide 

compaction test results that COR Champine requested from MOQA (tr. 11120-21, R4, 

tab 158 at 2). No such test results are in the record. 

116. MOQA did not provide any testimony that explained or substantiated the 

services of Kevin Cato. MOQA attached invoices from Mr. Cato to the claim but they 

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). Of the four categories of costs sought by MOQA (see finding 

107), CO Yorke specifically addressed only MOQA's claim for $842,587.23 for unpaid 

pay requests; she concluded that MOQA failed to demonstrate that it was entitled to any 

additional payment (id. at 4). 

26 
118. MOQA filed a timely notice of appeal of that decision on 22 February 

2016, which we docketed as ASBCA No. 60456. 

119. The government has not made a claim for re-procurement costs. 

DECISION - ASBCA No. 57963 

A. Standard of Review 

The Default clause of the contract (FAR 52.249-lO(a)-(b), (d)) provides in 

relevant part: "If the Contractor refuses or fails to prosecute the work, or any separable 

part, with the diligence that will insure its completion within the time specified in this 

contract, including any 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 not be terminated if the delay is caused, among other things, by acts of the 

government in its sovereign or contractual capacity. The clause further provides that the 

rights and remedies of the government in this clause are in addition to any other rights 

and remedies provided by law or under the contract. (Finding 99) 

In default cases involving a contractor's failure to make sufficient progress, the 

government may justify the termination by demonstrating that there was no reasonable 

likelihood that the contractor could complete the entire contract in the time remaining for 

performance. Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 

1987). The Corps has clearly met this burden. Photos taken after the termination show 

MOQA having 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 completed the project in 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 accept this 27 May 2012 completion date 

because it would have required MOQA to achieve a level of proficiency that had ~hus far 

eluded it on the project (see, e.g., findings 89-98) but this date is useful for discussion 

purposes.) 

B. MOQA has Not Demonstrated That its Delay was Excusable 

The burden shifts to MOQA to 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 know that there's a lot of complex 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 of time, and also 

27 
the Government's delay in even negotiating things, right. 

We should've just been given more time. 

(Tr. 8/240-41) 

MOQA has to prove that the Corps delayed the project by more than six months 

to bridge the gap from the 22 November 2011 contract completion date to 27 May 2012, 

the date specified by its expert. After thoroughly examining the record and MOQA's 

briefs, we conclude that MOQA's case has four basic flaws: 1) it has not provided a 

credible analysis of government 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 October 2011 if we reject its contention that 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 delayed the project and increased MOQA's costs (findings 7, 11, 

33). However, for each of these delays MOQA signed bilateral modifications in which 

it agreed that 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. Bell BC! Co. v. United States, 570 F.3d 1337, 1340-41 

(Fed. Cir. 2009). 

MOQA's brief addresses to a certain extent the release language in the 

modifications. While not entirely clear, the crux of its 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 

brief that the release language applies only to the work specified in RFP-0003, that is, 

removing the collapsible soil and replacing it with acceptable fill (gov't reply at 7). 

We also agree but this does not get MOQA very far. With the modification release 

language taking the delays due to the license for construction, the compound size change, 

and the collapsible soils removal/replacement off the table, there is not all that much 

government delay MOQA can point to. One such period of time might be from the 

issuance ofRFP-0002 on 1 February 2011 until its cancelation on 9 March 2011. The 

direction from the Corps in this RFP was somewhat confusing because it at least 

suggested that MOQA should hold off on redesigning the footings, something that was 

required by the contract (see findings 29-30). But MOQA has not proven how much of 

this time period should be considered government-caused delay. MOQA has not 

adequately explained why the one-week response requested by the Corps was 

28 
unreasonable. Nor has it explained why more than five weeks went by without MOQA 

submitting a proposal or explaining to the Corps why it was unable to submit one. Thus, 

it appears that MOQA's inaction prolonged the delay caused by the issuance of 

RFP-0002. Moreover, MOQA has 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 of RFP-0003 and the execution of Mod. P00003 (findings 31-33) was not 

released by the modification and should be considered government delay. Even if we 

were to rule that MOQA did not release the delay during this time period, MOQA has 

not demonstrated how much of this delay should be charged to the government rather 

than MOQA due to its submission of an inflated initial proposal that required multiple · 

revisions (findings 32-33). 

The difficulty of MOQA's burden is illustrated by the decision of the Court of 

Appeals for the Federal Circuit in Empire Energy Management Systems, Inc. v. Roche, 

362 F.3d 1343 (Fed. Cir. 2004). In the underlying decision that was the subject of that 

appeal, we held that a termination was justified because the contractor would have 

required an additional 154 days to complete the project but had proven only 53 days of 

excusable delay. Id. at 1349 (citing Empire Energy Management Systems, Inc., ASBCA 

No. 46741, 03-1BCAii32,079 at 158,552). In affirming our decision, the Federal 

Circuit considered contentions by the contractor that would have increased the number 

of excusable delay days to 106, but held that even this number was not enough for the 

contractor to meet its burden because it was short of the required 154 days. Id. at 13 51. 

Accordingly, in this appeal, even if we attributed three months of delay 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 of delay. 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 that took one to three days to perform (finding 24)) 

are far too little to get MOQA to more than six months of government caused delay. 

To demonstrate more than six months of delay, MOQA would have to show that 

the entire period from its 1 December 2010 submission of the geotechnical report until 

the execution of Mod. P00003 on 28 May 2011 were USA CE delay days, plus it would 

need to find a few days elsewhere. MOQA cannot show that the government bears 

anywhere near this level of fault, which brings us to our third point. 

MOQA has not accounted for any of its own delays. In the contract, MOQA 

accepted responsibility for the design and agreed to redesign the footings if there 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 

29 
1 December 2010 to submit the initial geotechnical report, then inexplicably took nearly 

8 weeks to resubmit that report after the 20 December 2010 USACE comments, and took 

another month to resubmit it after the 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 of the 10% design, and took an additional 5 weeks 

to resubmit it after the Corps "C" coded the first submission (findings 18, 25, 27, 35-38). 

MOQA only has itself to blame for these delays. 

Finally, because we have rejected MOQA's allegations against Mr. Khadaam, we 

hold that MOQA bears sole responsibility for the delays from June to October 2011. As 

·we found, MOQA failed to staff the project adequately, failed to timely submit and gain 

approval of a 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 night work (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 sufficient basis for the termination for default. 

Quality Trust Inc., ASBCA No. 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's repeated failure to establish and implement an adequate 

Quality Control Program. But we can uphold a termination for reasons not cited by the 

contracting officer in his decision. Empire Energy, 362 F.3d at 1357. 

At the hearing, the government had somewhat greater ambitions, producing 

evidence that the termination was justified for what could be described as an across the 

board failure ofMOQA to 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 conduct by providing the government with 

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 of the quality required by 

the contract (finding 110). Precedent from the Federal Circuit and this Board contain 

numerous examples of default terminations upheld for comparable reasons. MC. & D. 

Capital Corp. v. United States, 948 F .2d 1251, 1256 (Fed. Cir. 1991) (failure to provide 

specified roof and correct deficiencies, and leaving the job 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 was justifiably insecure about timely completion); Universal 

Fiberglass Corp. v. United States, 537 F.2d 393, 398 (Ct. Cl. 1976) (contractor was not 

30 
making 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 (altering test 

reports to falsely show concrete met strength specification); Korean Maintenance Co., 

ASBCA No. 31796, 88-3 BCA, 21, 155 (poor performance, poor work force organization, 

inadequate quality control); see also 5860 Chicago Ridge, LLC v. United States, 104 Fed. 

Cl. 740 (2012) (chronically leaky roof). 

As the record demonstrates, this contract presented considerable challenges. 

While the Corps provided MOQA with a design, the contract allocated the risk of the 

design to MOQA, placed the burden of producing a geotechnical report and determining 

soil conditions on MOQA, and required MOQA to redesign if the soil conditions were 

below specified parameters (findings 20-21, 28). Moreover, the contract required 

construction to take place in a remote and dangerous section of Afghanistan 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. Dot Systems, Inc. v. United States, 231 Ct. Cl. 765, 768 

(1982); Natus Corp. v. United States, 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 

required paperwork (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 of its size, locality or experience, is 

bound to understand the complexities and consequences of its undertaking." Tony Downs 

Foods Co. v. United States, 530 F.2d 367, 374 (Ct. Cl. 1976) (citing Massachusetts Port 

Authority v. United States, 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 whether there 

is anything left for the Board to decide with respect to MOQA's monetary claim. In 

general, a construction contractor who has been terminated for default is entitled to 

payment for work that was properly performed in accordance with the contract prior to the 

default termination. JG. Enterprises, Inc., ASBCA No. 27150, 83-2 BCA, 16,808 at 

83,543. But the government contends that we lack jurisdiction because MOQA's claim 

seemed to be predicated on conversion of the default to one for termination for the 

convenience of the government (see gov't suppl. br. at 3-4; finding 107). 

31 
While not a model of clarity, we conclude that MOQA's claim clearly communicated 

the notion that it performed work for which it had not been paid. The contracting officer 

appears to have understood this because her decision analyzed whether MOQA had been paid 

everything to which it was entitled (see finding 117). Accordingly, we possess jurisdiction. 

See Scott Timber Co. v. United States, 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 extent that MOQA left anything of value at the site after the 

termination, MOQA created this problem for itself. As we have found, COR Champine 

directed MOQA to vacate the site and remove its property on the day after termination 

(finding 100). MOQA failed to do so, lingering for six months in an apparent hope that 

the Corps would change its mind about the termination (finding 102). To the extent that 

materials or equipment were damaged by the weather, stolen, or experienced other 

problems during this time period, MOQA only has itself to blame. Moreover, the 

contemporaneous daily reports indicate that MOQA did, in fact, remove all of its 

materials and equipment, with the exception of sand, gravel, and stones (finding 104 ), 

which we conclude is the best evidence of the disposition of this property. 

Finally, this portion of the 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 entitled to 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 government that 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 if the Afghan government took 

the materials and equipment. Zafer Taahhut Insaat ve Ticaret A.S. v. United States, 833 

F.3d 1356, 1364 (Fed. Cir. 2016). 

MOQA also seeks $842,587.23 of unpaid pay requests for work performed 

through the date of termination. As we found, the Corps paid MOQA $642,840.63, or 

25% of the contract price 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 of performing 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's performance and the testimony of 

Mr. Lawrence, the quality assurance representative, concerning the problems with the 

concrete and rebar placed by MOQA, we conclude that the contracting officer did not 

abuse his discretion in having the replacement contractor remove most of the work 

placed by MOQA and start over (see findings 103, 110). In essence, MOQA received 

25% of the contract price even though it did not accomplish much more than excavating 

the site (id.). There is no credible evidence to support a higher payment to MOQA. 

32 
Finally, with respect to the $169,418.22 of consulting fees allegedly paid to 

Mr. Kevin Cato, MOQA admits in its supplemental brief that it would not be entitled to 

these amounts if the Board did not convert the termination to one for the convenience of 

the government (app. supp. br. at 9). Even ifMOQA could pursue these costs without 

conversion of the termination, we would deny them because MOQA has not proven what 

services Mr. Cato performed, or why they were reasonable in terms of effort and price. 

See Vistas Construction of Illinois, Inc., ASBCA No. 58479 et al., 16-1 BCA, 36,236 at 

I 7 6, 796-99. 

We deny ASBCA No. 60456. 

CONCLUSION 

For the foregoing reasons, ASBCA Nos. 57963 and 60456 are denied. 

Dated: 7 November 2017 

RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

33 

l)!Vl~1). {)~ MICHAEL N. O'CONNELL 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

OWEN C. WILSON 

Administrative Judge 

Vice Chairman 

Armed Services Board 

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

Armed Services Board of Contract Appeals in ASBCA Nos. 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 of Contract Appeals