ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeals of --

Austin Logistic Services Company 

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ASBCA Nos. 60916, 61052 

Under Contract No. H9223 7-15-C-7004 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

Mr. Ismail Khurami 

CEO/President 

Jeffrey P. Hildebrant, Esq. 

Air Force Deputy Chief Trial Attorney 

Capt Justin D. Haselden, USAF 

Lori R. Shapiro, Esq. 

Trial Attorneys 

OPINION BY ADMINISTRATIVE JUDGE PAUL 

Appellant Austin Logistic Services Company (Austin) filed a notice of appeal with 

the Board on 6 December 2016 without ever presenting its claim to the Air Force's 

contracting officer (CO); and the Board docketed the appeal as ASBCA No. 60916. The 

Air Force moved to dismiss the appeal for lack of jurisdiction. Subsequently, Austin 

submitted the same claim to the CO who denied it in its entirety. A hearing was held on the 

merits for both appeals and both parties have filed post-hearing briefs. We dismiss ASBCA 

No. 60916 for lack of jurisdiction and deny the appeal in ASBCA No. 61052. 

FINDINGS OF FACT 

1. On 30 January 2015, the United States Special Operations Joint Task 

Force-Afghanistan (SOJTF-A) awarded Austin Contract No. H92237-15-C-7004 to provide 

18 Morale Welfare and Recreation (MWR) facility workers at Camp Alpha, Bagram 

Airfield in Afghanistan (R4, tab 1 at 1-3). 1 The contract's performance period was 

12 months, commencing on 1 February 2015; however, funding was originally limited to a 

7-month period, encompassing 1 February 2015 to 31 August 2015 (R4, tab 1 at 3). 

2. The contract's scope of work was described in section 1 of the Performance 

Work Statement (PWS). It provided: 

The USG seeks to contract MWR facility workers at Camp 

Alpha, Bagram Airfield, Afghanistan. MWR workers are for 

1 Since the contract was administered by representatives of the United States Air Force, we 

refer to respondent as either "Air Force" or "government" rather than "SOJTF-A." 
the maintenance MWR facilities. MWR facilities are defined 

as fitness centers, laundry facilities, and internet cafes as 

specifically identified by Contracting Officer's 

Representative. Upkeep of the facilities is defined as minor 

maintenance, welfare, cleanliness, and sanitation. 

2. Currently, Camp Alpha has two internet cafes, two laundry 

facilities and two fitness centers which require services under 

this PWS. 

3. Hours of Operation. MWR workers shall be available 24 

hours a day, 7 days a week. 

4. Quality Control. The contractor shall establish and 

maintain a complete quality control program for the 

performance requirements of this contract. 

(R4, tab 2 at 1) 

3. On 18 February 2015, the CO executed Modification No. POOOOl to the 

contract which extended "the period of performance for labor services from seven (7) 

months to twelve ( 12) months of service." This resulted in a total performance period 

under the contract of"l February 2015 to 31 January 2016." The total fixed-price of the 

contract was adjusted upward to $144,595.20. (R4, tab 3 at 1) 

4. On 26 January 2016, the CO executed Modification No. P00003 which 

exercised an option to extend contractual services from 1 February 2016 to 31 July 2016. 

The fixed-price of the contract was increased to $203,142.80. (R4, tab 6 at 1) 

5. As awarded, the contract contained AFARS 5152.225-5908, GOVERNMENT 

FURNISHED CONTRACTOR SUPPORT (MAY 2012), which provided, inter alia, that Austin's 

employees were entitled to billeting on Camp Alpha as part of government-furnished 

contractor support (R4, tab 1 at 10). Also incorporated into the contract by reference was 

FAR 52.212-4, TERMS AND CONDITIONS-COMMERCIAL ITEMS (MAY 2014) (id. at 14). 

Finally, the contract also incorporated by reference DFARS 252.225-7041, 

CORRESPONDENCE IN ENGLISH (JUN 1997), which stated: 

The Contractor shall ensure that all contract correspondence 

that is addressed to the United States Government is 

submitted in English or with an English translation. 

(R4, tab 1 at 14) 

2 
6. On 28 November 2015, the CO forwarded a cure notice to Austin, in which she 

stated in pertinent part: 

(R4, tab 10) 

1. You are notified that the Government considers your 

failure to perform contract H9223 7-15-C-7004 in accordance 

with the Performance Work Statement (PWS) a condition that 

is endangering performance of the contract. Therefore, 

unless this condition is cured within 10 days after receipt of 

this notice, the Government may terminate for default under 

the terms and conditions of this contract. 

2. On 25 November 2015 the SOJTF-A Contracting Officer 

was notified that Austin Logistic Services Co. has been 

failing to meet the requirement in accordance with (IA W) the 

PWS. IA W the PWS the following issues need to be 

corrected within 10 days after receipt of this notice. 

A. Section 4 paragraph 1 of the P WS; The contractor 

shall provide ( 18) MWR workers. 

B. Section 5 paragraph 7; The Contractor is 

responsible for all immigration and visa requirements 

associated with bringing Third Country Nationals 

into Afghanistan. 

3. Please acknowledge receipt of this letter in writing and 

state what action is being taken to cure the delinquency. 

7. On 4 December 2015, Austin responded to the cure notice with a "TCN [Third 

Country Nationals] Mobilization & Demobilization Action Plan." It indicated that it 

would resolve the TCN visa problem by hiring new service employees from Uganda. 

(R4, tab 11) The CO approved Austin's "Plan of Action" on 11 December 2015; she 

stated further that if Austin failed "to implement the attached Plan of Action this contract 

may be terminated for default" (R4, tab 13 ). 

8. On 20 May 2016, L TC Christopher C. Bresko, the Chief of Staff at Camp 

Alpha, notified Austin in writing that its representatives were denied access to the base 

"effective immediately" (R4, tab 14). Austin's access to the base was not subsequently 

restored (tr. 23). 

3 
9. On the 24 May 2016, Elijah T. Felton, an Air Force CO, issued a stop work 

order to Austin under the contract (R4, tab 15). Austin did not perform any further work 

under the contract and did not submit invoices for the months of June and July 2016 (R4, 

tabs 7, 16).2 The extended contractual term expired on 31 July 2016 (finding 4). 

10. On 7 December 2016, the Board docketed Austin's appeal filed with the Board 

on 6 December 2016 as ASBCA No. 60916, in which it claimed $66,820 under the contract 

(ex. G-1 at 1, 8). However, as of that time, the record demonstrates that Austin had not filed 

its claim with the CO (R4, tab 19 at 1 ). Accordingly, on 6 January 2017, the government 

moved to dismiss ASBCA No. 60916 for lack of jurisdiction, Austin responded to the 

government's motion, contending that it "brought up the settlement issue, however [the CO] 

never replied to any of my emails." However, Austin never asserted that it filed a claim 

with the CO. Accordingly, we find that Austin did not file a claim with the CO prior to 

initiating the above-mentioned appeal. The Board held the motion in abeyance pending a 

decision on the merits. 

11. On 12 January 2017, Austin subsequently filed its claim with the CO (R4, tab 19 

at 1). The claim was forwarded by an unnamed project manager on behalf of Austin's 

president and CEO, Mr. Ismail, under Mr. Ismail's name. The claim encompassed three 

pages: a cover letter; a chart containing five claim items: "Invitation," "Work 

Permit/License for Worker," "Visa for Workers," "Living Facility for Workers," and 

"Transportation"; and an unidentified foreign language document. The total amount of the 

claim was $66,820. Austin provided no backup or substantiation for any of the five discrete 

claim items. (R4, tab 20 at 1-3) However, it subsequently submitted a translation of the 

foreign language document which stated that it was a lease agreement for an 8 room, 160 

square meter apartment for 6 months for $7,400 rent per month which totaled $44,400 (R4, 

tab 21). The latter amount was stated in Austin's claim as reflecting the "Living Facility for 

Workers" (R4, tab 20 at 2). This represented the first instance when Austin informed the 

CO that it had provided a "living facility for workers" connected with this contract (R4, 

passim). The original foreign language document and the translation were both undated 

(R4, tab 20 at 2, tab 21 ).3 

12. In a final decision issued on 2 February 2017, the CO denied Austin's claim 

in its entirety. He wrote, in pertinent part: 

a) On January 12, 2017 you submitted your claim. Your 

claim contained a contract on page three that was not 

translated into English (Attachment 1 ). On January 15, 2017 

2 Austin submitted 16 invoices under the contract and was paid in full for its work (R4, 

tabs 7, 16). 

3 The contract itself provided that Austin's workers were entitled to billeting on Camp 

Alpha (finding 5). 

4 
you were emailed by Capt Jonathan Yap stating the contract 

provided needed to be translated. On January 16, 2017 you 

provided a translated contract for renting an apartment for 6 

months (Attachment 2). This translation did not state the 

dates of the rental. Your contract did not provide proof of 

when the apartment was rented. 

b) On January 12, 2017, you stated in the same email you 

submitted your claim, "Sir, the Afghan Government does not 

give any receipt for Visa and Work Permit/License." 

(Attachment 3) On January 23, 2017 Contact Specialist 

Brent Robinson contacted the Ministry of Foreign Affairs for 

the Afghanistan Government at phone # 0093 (0) 20 

2100372. A representative stated that the Government does 

provide receipts. 

(R4, tab 22 at 1) 

13. On 8 February 2017, Austin appealed the CO's final decision. The Board 

docketed the protective appeal as ASBCA No. 61052; its factual basis is the same as that in 

ASBCA No. 60916 which was never presented to the CO. 

14. After filing its appeal with the Board, Austin forwarded an email to the CO in 

which it stated that "the Apartment lease started from 6 Dec 2015 to 6 May 2016" (R4, 

tab 23 at 1 ). Austin subsequently forwarded a second lease agreement in a foreign language 

with the dates "7 Oct 2016" and "7 May 2016" appearing in the right-hand corner. In 

addition, the "$44400" and "$7400" were handwritten at the bottom of the first paragraph, 

along with the date "7 May 2016." (App. supp. R4, tab 4) 

15. Austin was asked to provide a translation of this document pursuant to DF ARS 

252.225-7041 (supp. R4, tab 6 at 1; finding 5); however, Austin refused to provide any 

further translations (supp. R4, tab 6 at 1 ). 

16. On 2 May 2017, Austin forwarded a "List of Incurred Cost" to the Air Force 

(supp. R4, tab 2 at 1 ). The list contained four items: "Apartment Lease," "4 Security 

Guards for Workers," "Cook," and "Watchman." Each item was priced in monthly unit 

prices which totaled $64,800. (App. supp. R4, tab 3 at 1-2) Aside from the 

belatedly-provided untranslated lease, Austin provided no substantiation for its "incurred 

costs" (tr. 33). In its email of7 May 2017, Austin stated that it had "sent all the documents 

related to this appeal" (supp. R4, tab 3 at 1). 

5 
DECISION 

The Air Force has moved to dismiss this appeal for lack of jurisdiction because 

Austin never submitted a written claim with a sum certain to a CO prior to the appeal 

being filed. Under the Contract Disputes Act (CDA), 41 U.S.C. § 7103, the government 

contends, the lack of a written claim presented to the CO precludes the Board from 

having jurisdiction to consider this appeal. (Gov't mot. at 1) We agree. The Board's 

jurisdiction under the CDA is dependent upon a contractor's prior submission of a proper 

claim to a CO for a decision. 41 U.S.C. § 7103(a); Lael Al Sahab & Co., ASBCA 

No. 58346, 13 BCA 135,394. As we found that Austin failed to submit a claim to the 

CO prior to initiating the appeal (finding 10), we lack jurisdiction to entertain the appeal. 

ASBCA No. 61052 

Pertaining to the subsequent claim that was submitted to the CO for a final 

decision (and which relief was ultimately denied), we conclude that we have jurisdiction 

over this appeal. 

It it is undisputed that Austin was paid for all the work which it performed 

(finding 9). Regarding the claim which it forwarded to the CO, as well as its 

belatedly-submitted "List of Incurred Cost," Austin has provided no substantiation to 

support its claim. The contract itself provided that Austin's employees were entitled to 

billeting on Camp Alpha (finding 5). Moreover, the translated lease which it 

ultimately provided had no dates and was otherwise vague and unspecific. Its belated 

submission of a second untranslated lease agreement did not comply with the 

contractual requirements to provide documents in English. As our appellate court held 

in Lisbon Contractors, Inc. v. United States, 828 F .2d 759, 767 (Fed. Cir. 1987): 

[T]he claimant bears the burden of proving the fact of loss 

with certainty, as well as the burden of proving the amount of 

loss with sufficient certainty so that the determination of the 

amount of damages will be more than mere speculation. 

Austin has failed to meet this burden. Therefore, we deny its appeal in 

ASBCA No. 61052. 

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CONCLUSION 

The appeal in ASBCA No. 60916 is dismissed for a lack of jurisdiction; the 

appeal in ASBCA No. 61052 is denied. 

Dated: 9 January 2018 

I concur 

[;AA\ 

RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

MICHAEL T. PAUL 

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. 60916, 61052, Appeals of 

Austin Logistic Services Company, rendered in conformance with the Board's Charter. 

Dated: 

7 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals