ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeals of

-- ) ) GrowLife General Trading, LLC ) ) Under ContractNo. W912Dl-15-P-0051 ) APPEARANCE FORTHE APPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA Nos. 60398, 60467, 60778

Mr. Hazrat J. Rahmatzai

Managing Director Raymond M. Saunders, Esq.

Army ChiefTrial Attorney Harry M. Parent III, Esq. CPTJeremy D. Burkhart, Esq.

Trial Attorneys OPINION BYADMINISTRATIVE JUDGE WOODROW This appeal arises from ContractNo. W912Dl-15-P-005l (the contract) between appellant, GrowLife General Trading, LLC (Grow Life or appellant), andthe ArmyArea Support Group-Kuwait (Army orgovernment) for providinghousehold furniture totwo locations in Kuwait in orderto accommodate a surge oftroops deploying in support of Operation InherentResolve

- Iraq. Grow Life challenges the Army's partialtermination ofthe contract for cause in ASBCANo. 60398. 

### It also seeks $1,180,563.72 in delay damages dueto the Army's purportedrefusal to accept delivery ofGrow Life's furniture shipments. We docketed GrowLife's monetary claim as ASBCANo. 60467. Subsequently, GrowLife appealed the contracting officer's (CO's) denial ofGrow Life's monetary claim. We docketedthe appeal as ASBCANo. 60778 and subsequently consolidatedthethree appeals. Grow Life filed an amended complaint dated June 5, 2017, increasing its monetary claim from $1,180,563.72 to $3,569,471.27, for additional costs associated with storing shipping containers holding the undelivered furniture. We deny the appeals. FINDINGS OF FACT A. TheParties and Key Individuals 1. GrowLife is a logistics services companybased in the United Arab Emirates (UAE). Since 2001, it has providedprofessional services in the fields ofpetroleum product supply, furniture supply, andtransportation. (App. br. at 4) 

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# I 2. Mr. Hazrat Rahmatzai, appellant'spresident, has approximately ten years' experience with U.S. Government contracts (tr. 2/12). Mr. Rahmatzai signed the contract at issue in this appeal on behalfofappellant (tr. 2/84). Priorto this contract, he had one other contract in Kuwait, supplying construction materials to Camp Arifjan (tr. 2/84). The materials for that contractwere imported from China, but his supplierhandled all of the customs requirements (tr. 2/84-85). Priorto this contract, he had no experience dealing with Kuwaiti customs (tr. 2/85). 3. Appellant's agent in Kuwait was Elisha Almeida, senior sales coordinatorfor Frontline Logistics (supp. R4, tab 44; tr. 2/100). Ms. Almeidawas not familiar with the different types ofvisas in Kuwait (tr. 2/113) and appellant does not know whether Ms. Almeidapersonally had installation access for Camp Arifjan or Camp Buehring (tr. 2/99-102). 4. On the Army side, MAJ Fisherwas the CO when the contract started. CPT Scovell was the contract specialist. (Tr. 2/88) 5. CPT Melissa Winterfeldt was the housing officer in charge from April 14, 2014 through August 29, 2016, with additional duty as the CO'srepresentative for this contract (tr. 2/88, 3/49-50). She was in charge ofall housing on the three bases in Kuwait

- Camp Arifjan, Camp Buehring, and KuwaitNaval Base. This involved housing for all American and Coalition forces coming to orpassing through Kuwait (tr. 3/50). CPT Winterfeldtwas part ofthe requiring activity, the unit that ultimately needed the furniture (tr. 3/52). 6. Ms. Charina Rosete was the furnishing lead for CPT Winterfeldt (tr. 3/50). She was a contractor employee who had been working for the U.S. Army in Kuwait for ten to twelve years priorto CPTWinterfeldt's arrival, and she was the subject matter expert on anything furniture-related needed in the country (tr. 3/50). 7. MSGT Ukhueligbe was CPT Winterfeldt's housing non-commissioned officer in charge (NCOIC) at Camp Arifjan (tr. 3/50-51). 8. SFC Segrain was CPT Winterfeldt's housing NCOIC at Camp Buehring (tr. 3/51). B. The Contract 9. On August 9, 2015, the Army awarded Contract No. W912Dl-15-P-0051 to appellant for the delivery offurniture to two locations in Kuwait

- Camp Arifjan and Camp Buehring (R4, tab 7). The commercial items contractwith 14 contract line item numbers (CLINs) was awarded for atotal amount of$829,603.16, with a delivery date of September 5, 2015 (R4, tab 7 at 4-12). There were 13 CLINs for furniture and 1CLIN was for insurance (id.). 2 

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# I 10. On August 10, 2015, Mr. Rahmatzai signedthe contract on behalfofappellant (R4, tab 7 at 1). Mr. Rahmatzai testified that he read and understood the entire contract before he signed it (tr. 2/86-87). 11. The contract called for the delivery and installation ofa variety offurniture items, including 4,945 mattresses (CLINs 0001, 0002, and 0005), 2,775 metal bed frames (CLINs 0007 and 0008), 50 leather chairs (CLIN 0003), wooden furniture (CLINs 0004, 0006, 0009, 0010, 0011, and 0012), and 3,100 metal wall lockers (CLIN 0013). For each furniture CLIN, the contract specified "FOB: Destination" and that "Destination Contractor shall deliver, unpack, install and place items as directed by the acceptor." (R4, tab 7 at 3-9) 12. Priorto award, on August 8, 2015, at the request ofthe Army, Grow Life submitted a delivery schedule. The delivery schedule divided the CLINs into columns indicating "delivery time in 24 hours" and "deliverytime in 2-3 weeks." According to GrowLife's schedule, all items for CLINs 0002-0005 couldbe delivered in 24 hours. The schedule statedthat 800 of4,775 mattresses under CLIN 0001 couldbe delivered in 24 hours, along with 10 of60 TV stands under CLIN 0011. All remaining items, including all items under CLINs 0006-0010 and 0012-0013, couldbe delivered in 2-3 weeks. (R4, tab 36 at 5) 13. Grow Life'sproposed delivery schedule was never madepart ofthe contract. The only date specifically referenced in the contract was the delivery date of September 5, 2015 (tr. 3/25-26). 14. The contract incorporatedby reference several Federal Acquisition Regulation (FAR) and Kuwait Special ContractRequirements (KSCR) clauses relevant to this appeal. For example, the following relevant clause FAR 52.212-4, CONTRACTTERMS AND CONDITIONS

- COMMERCIAL ITEMS (MAY 2015)was incorporated into the contract. (R4, tab 7 at 12) 15. FAR 52.212-4(t), set forth below, provides that appellant is liable for default unless nonperformance is causedby an occurrencebeyond its reasonable control and without its fault ornegligence. Pursuantto this clause, appellantwas required to notify the CO in writing as soon as reasonablypossible upon the commencement ofany delay and to give promptwritten notice ofthe cessation ofdelay. (f)Excusable delays. The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyondthe reasonable control ofthe Contractor and without its fault or negligence such as, acts ofGod orthe public enemy, acts ofthe Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of 3common carriers. The Contractor shall notify the Contracting Officerin writing as soon as it is reasonably possible afterthe commencement ofany excusable delay, setting forth the full particulars in connectiontherewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer ofthe cessation ofsuch occurrence. 16. FAR52.212-40)(2), set forth below, places risk ofloss on appellant until delivery ofthe supplies to the government at the destination specified in the contract, as the contractwas f.o.b. destination. 0)

### Riskof loss. Unless the contract specifically provides otherwise, risk ofloss or damage to the supplies provided underthis contract shall remain with the Contractor until, and shall pass to the Governmentupon: (1) Delivery ofthe suppliesto a carrier, if transportation is f.o.b. origin; or (2) Delivery ofthe supplies to the Government at the destination specified in the contract, if transportation is f.o.b. destination. 17. FAR 52.212-4(m), set forth below, provides that the government may terminate the contract for cause in the event ofany default, or for appellant's failure to comply with any contractterms and conditions, or appellant's failure to provide adequate assurances offuture performance uponrequest. (m) 

### Termination/or cause. The Governmentmay terminate this contract, orany part hereof, for cause in the event ofany defaultby the Contractor, orifthe Contractor fails to comply with any contractterms and conditions, or fails to provide the Government, uponrequest, with adequate assurances offuture performance. In the event oftermination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. Ifit is determined that the Government improperly terminatedthis contract for default, such termination shall be deemed a termination for convenience.

418. The contract also contained specific provisions relatedto doing business in Kuwait, includingprovisions related to installation access and Kuwaiti customs. In particular, the contract included KSCR 1-13, INSTALLATION SECURITY/ACCESS/BADGING REQUIREMENTS (AUG 2010), setting forth specific instructions regarding badging necessary for personnel to access Armyposts in Kuwait: (a) Badging and access requirements for Army Posts in Kuwaitwill require coordination with the Contracting Officer orthe Contracting OfficerRepresentative (COR) responsible for contract oversight at applicable location. (1) To obtain entry to Camp Arifjan, Contractors must contactthe Badging Office at 965-2389-1525 for forms, procedures, and instructions. (2) Newpasses are obtained at ECP 1(TCN Gate) on CampArifjan. Renewals and upgrades are handled at the ProvostMarshal Office Building 159 located on Camp Arifjan. TheECP 1Badging Officeprovides support from 0700 to 1600 and 1900 to 0400 daily. (b) Contractors are advised thatbadging for citizens/residents ofcertain countries is restricted or unavailable. Contractors must contactthe Badging Office to obtain a list ofrestricted countries and any applicable waiver processes. (R4, tab 7 at 22) 19. The contract also included KSCR 1-8, CONTRACTDELIVERY, TRANSPORTATION AND CUSTOMS REQUIREMENTS (AUG 2010), containing instructions for shipping and customs clearance. (e) SHIPPING METHOD: Shipments arriving by express couriers DHL, FedEx, or UPS are processedusing AK 302-1 Form, prepared by the express courier and given to the customer for signature. The signed form is then brought to the HNAC office for clearance through the KGAC. No AWB is required, only the signed AK form. (f) KUWAIT CUSTOMS CLEARANCE: Required to ensure smoothtransfer ofgoods between the U.S. Army in Kuwait and the General Administration ofCustoms (KGAC) ofthe State ofKuwait underthe Defense Cooperation 

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# I I Agreement (DCA). Customsprocedures will address import and export ofall cargo to and from the U.S. Army, Navy, Air Force and Marines by Air, Land or Sea. CUSTOMS POINT OF CONTACTS: DHA Customs Office Bldg 216 room 104 Camp Arifjan-Kuwait Office: DSN 011-965-2-389-2417 or 5978

(2) Contractor's Responsibilities: The Contractor shall be responsible for all customs clearance actions. All necessary arrangements, clearanceprocedures, and coordinationwith the Host Government customs, will be the sole responsibility ofthe Contractor. The Contractor shall submitto the Contracting Officer, with a cover letter, information copies ofthe shipping documents for the shipment(s) involved. As a minimum, the following shall be included as enclosures, with the cover letter to the Contracting Officer in three (3) copies: (i) Invoice. (Include a copy in Arabic) (ii) Bill ofLading. (iii) Certificate ofOrigin. (iv) Statement on the cover letter as to Port of Customs Clearance, estimated arrival date, general description ofthe shipment, quantity and the name ofthe carrier. (v) Serial number ormodel number ofshipment items. (3) Physical Handling ofMaterials: The Contractor shall be responsible for performance ofall loading, unloading, transportation or otherphysical handling of materials as may be required, including all movement from carrierunloading site to delivery at thejob site and all movementrequired at the customs area. (R4, tab 7 at 23-24) 20. CPT Winterfeldt testified that itwas the vendor's responsibility to deal with Kuwaiti customs:

6Q. [RepeatingMr. Rahmatzai's question]: Whose responsibility was it to check with Kuwaiti customs, yours or the vendor agent's responsibility? A. Ibelieve it was the vendor'sresponsibility. In all ofthe other contracts that Ihad done while I was overthere, the vendor always dealtwith customs and I neverhad an issue with anything else coming onbase orgetting through customs. (Tr. 3/86) GrowLife failed to offer any credible testimony to refute this evidence. 21. Theparties modifiedthe contracttwice after award. Modification No. POOOO 1, dated August 13, 2015, increased the award amountby $192,024 based on an increase in the size ofthe black metal bed frames in CLIN 0008. Modification No. POOOOI also made an administrative changeto the description ofCLIN 0014, the insurance, and added CLIN 0015, ContractManpowerReporting. No change was made to the delivery date. (R4, tab 11; tr. 2/90-95) While Modification No. POOOOI was meant to changethe size ofthe bed frames, it failed to actually changethe contractual description ofthe bed frames (R4, tab 11). 22. Modification No. P00002, effective August 14, 2015, correctedthe CLIN 0008 description to reflectthe change in the size ofthe black metal bed frames from 150cm x 200cmto 90cm x 190cm. ModificationNo. P00002 did not change the contractual delivery schedule, which remained September 5, 2015, as set forth in the original contract. (R4, tab 7 at 8, 10-12) Appellant signedboth Modification Nos. POOOOI and P00002 on August 16, 2015 (R4, tabs 11, 13). C. Performance 23. When appellant provided its schedule to the Army onAugust 8, 2016, it represented it could locally procure 970 mattresses (CLINs 0001, 0002, 0005), 50 leather chairs (CLIN 0003), 5 mahogany TV stands (CLIN 0004) and 10 oak TV stands (CLIN 0011) within 24 hours. Appellant also statedthat it could deliver all ofthe remaining items within 2-3 weeks. (R4, tab 36 at 5) 24. Appellanttestified it takes approximately 15 to 20 days for a shipment from Chinato reach Kuwait (tr. 2/131-32). 25. According to appellant's own timeline, it shipped furniture in eleven containers across four separate shipments; the first from its warehouse in the UAE, followed by three from China (R4, tab 74; tr. 2/121).

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1. First Shipment of480 Metal Beds from UAE 26. On August 17, 2015, Ms. CharinaRosete, the Army's warehouse furnishing lead, emailed appellant and requested confirmation ofdelivery dates. Mr. Rahmatzai responded: For now Metal Frame Beds are ready for the delivery it takes 7 days to arrive to Camp [Buehring] please let me know are you willingto receive all the metal frame beds [i]n one lot/time? Iwill let you know aboutthe exact date ofdelivery for the rest ofitems step by step once it gets ready for the delivery. (Supp. R4, tab 52) 27. On August 22, 2015, Mr. Rahmatzai emailed CPT Winterfeldt stating the first delivery of480 beds would be coming in a single 40-foot containerto arrive on August 30, 2015, with the rest ofthe beds to arrive in port on September 12, 2015. Mr. Rahmatzai further stated that: "alongwith this we will also deliverthe Mattresses and lockers it will not take[] more 20 September 2015 for the rest offurnitures [sic] the complete delivery will also get done within 20 September 2015." (R4, tab 38 at 3-4) 28. On August 23, 2015, appellant sent an email to Ms. Rosete, the housing lead for CPT Winterfeldt, with pictures ofmattresses stating: "50 each compressed in one pallettotal 24 pallet in 40ft container." Ms. Rosete responded: "The mattresses are acceptable. As discussed, all the mattresses (4,775) will be delivered to Camp Buehring." (Supp. R4, tab 53) 29. Appellant also emailedpictures ofthe metal wall lockers and stated: "1 pc in one carton 500 pcs in 40ft. Container,"to which Ms. Rosete responded the lockers are acceptable but must be assembled upon delivery, and that 2,400 will be delivered to Camp Buehring and 700 to Camp Arifjan (supp. R4, tab 54). 30. On September 14, 2015, the first container arrived in Kuwait from Jebel Ali, UAE, with bill oflading MSLJEASWK0153. The date ofissue ofthe bill oflading is not apparent in the English translated portions ofthe document. (Supp. R4, tab 57 at 1-3) This shipment containedthe 480 beds appellant ultimately delivered on October20, 2015, more than one month afterthe shipment's arrival in Kuwait. 31. On September 14, 2015, Ms. Rosete requested that appellant provide exact delivery dates for its deliveries (supp. R4, tab 43). 32. On September 14, 2015, appellant mailed the customs paperwork- consisting ofForm AK 302

- for the shipmentto MSGT Ukhueligbe (supp. R4, tab 55 at 5). 833. Two days later, on September 16, 2015, MSGTUkhueligbe responded that the form was processed (supp. R4, tab 55). However, laterthe same day, Ms. Almeida informed MSGT Ukhueligbe that the Form AK 302 was notprocessed, because the host nation (Kuwait) requested the original master bill oflading, which would be handed over the next day at the airport (supp. R4, tab 56). 34. On October4, 2015, appellant submitted a new customspacket (AK 302) for the shipment (supp. R4, tab 60). 35. On October 8, 2015, MSGTUkhueligbe acknowledged that he had overlooked the customs packet, but that he currently was working on it (supp. R4, tab 61 at 1 ). 36. On October20, 2015, Mr. Rahmatzai emailed CPT Winterfeldt and asked her to call Ms. Almeidato coordinate a time to pickup and sign the amended customs documents. The next day, on October 21, CPT Winterfeldt replied that it is appellant's responsibility to assemble and submitpapers. Appellant acknowledged it bore responsibility toprepare the paperwork, with CPT Winterfeldt's responsibility limited to signing offon the paperwork. CPTWinterfeldt said she would leave a copy with Ms. Rosete for pickup. (Supp. R4, tab 65) 37. The same day, October 21, 2015, SFC Segrain informed CPT Winterfeldtthat the bed frames had been delivered, but were not set up (supp. R4, tab 68). 38. Grow Life did not install or assemble the metal bed frames. Instead, the government paid for installation and assembly ofthe 480 bed frames (supp. R4, tab 68 at 1). 2. Second Shipment ofWall Lockers and Mattresses from China 39. On October2, 2015, three containers arrived from Shekou, China, with bill of lading 2564433790, dated September4, 2015 (supp. R4, tab 74). The bill oflading had "filing cabinets" crossed out and "wall lockers" typed in its place. The shipment contained wall lockers and spring mattresses. (Supp. R4, tabs 60, 84) 40. Appellant first emailed the customs paperwork for this shipmentto the government on October4, 2015 (supp. R4, tab 60). 41. Specifically, CPTWinterfeldt and Mr. Rahmatzai exchanged a series of emails discussing whetherthe shipment contained wall lockers or filing cabinets (supp. R4, tab 62). 42. On Thursday, October 8, 2015, Ms. Almeida followed up by email on the status ofthe AK 302 customs declaration form submitted for appellant's second

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# I shipment. MSG Ukhueligbe statedhe originally skipped this email thinking it was a request for base access, butwas currently working on it. (Supp. R4, tab 61) 43. A back-and-forth email chain ensued from October 8-10, 2015, overwhether the shipment contained wall lockers or filing cabinets (supp. R4, tab 62). 44. On October 13, 2015, CPTWinterfeldt informedMr. Rahmatzai that his agent Ms. Almeida was notbeing cooperative in submitting correct customs and badging documentation (supp. R4, tab 50). A week later, on October20, 2015, appellant asked CPTWinterfeldtto call Ms. Almeidato coordinate a time to pickup the amended customs paperwork. The next day, CPT Winterfeldtresponded it was appellant's responsibility to bringthepapers to her. (Supp. R4, tab 65) Four days later, on October25, 2015, appellant again requested CPT Winterfeldt to arrange to meet a contact to receive paperwork, and the next day CPT Winterfeldt again respondedthat appellant needed to come during business hours to have the papers signed (supp. R4, tab 69). 45. On October27, 2015, appellant's agent delivered the customs documents to CPT Winterfeldt, but sherejectedthe documents becausethey were not originals and appeared to be altered. Appellantprovided original documents the next day, October 28, 2015. (Supp. R4, tab 70 at 1-2) 46. OnOctober29, 2015, CPT Winterfeldt signedthe original documents and personallytookthem to the customs office. However, the Kuwaiti customs office informed CPTWinterfeldt thatthe AK 302 form was incorrectbecause the listed carrier did not match the rest ofappellant's paperwork. (Supp. R4, tab 70 at 6) 47. Appellant sent an updated version ofthe customs paperworkvia email, and CPTWinterfeldt again explainedthat she needed an original (supp. R4, tab 70 at 9). 48. Grow Lifenever obtained approval from Kuwaiti customs for this shipment, and it remained in port in Kuwait. 3. Third Shipment ofFurniture from China 49. On October9, 2015, appellant's third shipment arrived, with two containers, from Shekou, China (supp. R4, tab 74). This shipment contained wall lockers, spring mattresses, metal and wood furniture. Like the second shipment, the bill oflading had "filing cabinets" crossed out and "wall lockers"typed in its place. (Supp. R4, tab 85) 50. GrowLife first emailedthe customs paperwork for this shipment to the government on October25, 2015 (supp. R4, tab 69 at 1). The next day, CPT Winterfeldt reiterated that original documents needed to be delivered to her office, and pointed out errors, including an incorrectpoint ofcontact, listed on the forms appellant submitted (id.). 10 

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# I51. Grow Life never completedthe customs paperwork for this shipment, and it remained in port in Kuwait. As ofNovember 15, 2015, the date the contract was terminated pursuant to Modification No. P00003 (R4, tab 9 at 1, 6, 11), Grow Life had 2,200 beds, 1,370 mattresses, and 1,230 wall lockers sitting in port in Kuwait (R4, tab 19; tr. 2/133-34). The contract called for 4,945 mattresses. The other 3,575 mattresses were in Grow Life's Dubai warehouse as ofNovember 15, 2015, along with the remaining wall lockers and beds (tr. 2/134). Ultimately, Grow Life delivered only 480 black metal bed frames under CLIN 0008. 4. Problems with Base Access and Kuwaiti Customs

1. Customs Clearance 52. Appellant testified that the phone numbers ithad for customs did not work: "This is the section whichwas directed to Krishna Kumar, who was doing the logistics. And he tried these, all numbers, all the way." (Tr. 2/97) 53. Appellant nevervisited the office listed in the contract as the point ofcontact for assistance with customs:

(Tr. 2/96-97) Q. Yes, and Iunderstand you asked the Government several times for the phone number. But when is the first time when someone from Grow Life actually went to Building 216, Room 104? A. We didn'twent [sic] to that office directly.

54. Atthe hearing, Mr. Rahmatzai admitted that he had no priorpersonal experience with obtaining customs clearance for shipments into Kuwait. However, he stated that he had an associate, Mr. Krishna Kumar, responsible for handling logistics, including customs paperwork. (Tr. 2/85-86) Mr. Kumarwas located in Dubai, not Kuwait, and did not go in person to the government office (tr. 2/96). Instead, Grow Life relied on Ms. Almeida, with Frontline Logistics, as Grow Life's agentto shepherd its shipments through the Kuwaiti customs approval process (tr. 2/38). 55. Mr. Rahmatzai does not knowwhether his agentMs. Almeida ever attempted to visit the customs office (tr. 2/97-98). 56. Mr. Rahmatzai sought a "tax exempt letter" from the government that, he claimed, would have exemptedthe furniture from customs duties and obviated the need for customs paperwork. Mr. Rahmatzai referred to this exemption letter as DA Form 1687. (Tr. 1/62, 2/28-29) 1157. DAForm 1687 is an internal Army document for delegating signature authority from the CO orcontracting officerrepresentative (COR) to otherArmy persons torequest and sign custom documents (app. supp. R4, tab 3).

11. Access and Badging 58. OnAugust 22, 2015, Grow Life asked about theprocedure for installation access. On August 24, 2015, CPT Winterfeldtresponded by explainingthat: I will notbe badgingthem, nor do I have anypartin badgingthem. Youneedto do that on your own through security. Please go through the properchannels, because 

### I do not do anything with security orbadging. (Supp. R4, tab 38) 59. OnAugust 23, 2015, GrowLife responded, statingthat "[w]eneverpromised that ouremployees havethebadges and 

### I don'tthinkwewould need badges for employees." Grow Life further statedthat its truck drivers could unload the furniture and "ifsome installations is required inform us andjustprovide us the one time gate memo pass for ourworkers andthey will come and install it for you." (Supp. R4, tab 38 at 2) 60. OnAugust 24, 2015, CPTWinterfeldt responded: With new heightened security, all personnel need badges. Again, 

### I needyouto go through your channels on gettingbadged. This is not somethingthat is done at my level. Theywill not allow anyone on base without a badge. A memowill not suffice, and it will not allow you on base. (Supp. R4, tab 38 at 2) 61. On September 6, 2015, Ms. Rosete forwarded an email to appellant explaining theprocess for badging andproviding a copy ofASG-KU Department ofEngineering Services (DES) Form 190-16.01 Access Application. The original email, from CPT Scovell with the Army's Regional Contracting Command, stated: It takes at leastthree days to receive temporary access and that's ifall the documents are perfect. Thatis why you should schedule the meeting at least a week out in orderto fix any deficiencies. (Supp. R4, tab 42)

1262. On September 14, 2015, appellant's agent, Ms. Almeida, proposed using military escorts instead ofbadged workers: As discussed, to obtain the gatepass for the labors [sic] is a very lengthy process, the other option will be to escort the labors from the gate to the base. Forwhich we wouldprovidethe passport copy, visa copy & civil ID copy ofthe person. The same will be provided 3-4 days in advance. Pis. confirm. (Supp. R4, tab 44) 63. On September 30, 2015, Ms. Almeidarequested military personnel escorts in order to avoid the badge application process. She was informed that escorts were not available, and she submitted installation access applications the same day. (Supp. R4, tab 45) 64. On October2, 2015, SFC Segrain informed Ms. Almeidathat herbadge applications were denied, because the DES form was incorrectly filled out, and because the applicants lacked the requisite visas. The applicants had Kuwait Visa 20; however, a Kuwait Visa 14, 1 7, or 18 was required for base access. The workers apparently had Kuwait residency visas when they actually neededwork visas. (Supp. R4, tab 47) 65. The next day, October 5, 2015, Ms. Almeidaemailed SFC Segrain and informed him: "currentlywe do nothave laborholding below mentioned visa status." SFC Segrainreplied that ifshe could not providethe required documents for base access, she needed to contactthe contracting commandto discuss further. (Supp. R4, tab 48) 66. On October 10, 2015, SFC Segrain sent another copy ofthe DES access form to Ms. Almeida and asked herto complete it. The email states "weboth agreed that the date be move[d] to 17 OCT 15 to 30 OCT 15." (Supp. R4, tab 49) 67. On October 13, 2015, CPT Winterfeldt emailed appellant and asked to have completedpaperworkby the end ofthe week: In addition to the customs paperwork, Ms. Elisha [Almeida] from Frontline is refusingto cooperate with my NCOs (SFC Samuel Segrain) and will notprovide any ofthe correct documentation for base access. We have been going back and forth for too long onthis, and I am demanding that we have the correct information by the end ofthis business, week (15 OCT 15)

.... (Supp. R4, tab 50)

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# l68. On October 16, 2015, SFC Segrain informed appellantthat installation access was approved for the workers involved with the first shipment of480 metal bed frames (supp. R4, tab 5 at 38, 51). 69. Grow Life successfully deliveredthe 480 bed frames, but its workers did not assemble them. Instead, the governmentpaid for installation and assembly ofthe 480 bed frames. (Supp. R4, tab 68 at 1) 70. The governmentrefusedto pay for Grow Life's Defense BaseAct (DBA) insurance under CLIN 0014, on the grounds that Grow Life did not install the bed frames (R4, tab 18; tr. 1/48, 3/85). 71. Mr. Rahmatzai testifiedthat Grow Life "tried every phone, every door" to obtain information on badging (tr. 2/99). No one from Grow Life visited the badging office located on CampArifjan. According to Mr. Rahmatzai, that was because Grow Life's representatives lacked installation access: "Everyroute, they tried. But as far, Building 159, located on Camp Arifjan, the ECPl, you have no rights. ECPl, without a badge, who can go there? Howto go to this without a badge?" Mr. Rahmatzai does not know whetherhis agent, Ms. Almeida, had installation access. (Tr. 2/99-102) 72. At the hearing, Mr. Rahmatzai indicated that he did not have personal knowledge ofthe differenttypes ofKuwaiti visas (tr. 2/113). D. Cure Notice 73. On October 26, 2015, the CO issued a cure notice to appellant. 

### It stated: "the Government considers yourperformance a condition that is endangeringperformance of the contract" and provided appellant 10 days to cure the condition. The cure notice documented four issues:

(R4, tab 17) • The AK 302 and badging documents were addressed with the need to provideproper documents to CPTWinterfeldt. • The description ofcommodities in paperwork was to be documented in accordance with each CLIN. • For deliveries, all commodities were to be delivered, unpacked, installed, andplaced in accordance with the contract. • An obligatory timeline was set, requiring deliveries to occurbetweenNovember 2, 2015 and November 28, 2015.

14E. Partial Termination for Cause 74. By October 30, 2015, all ofappellant's containers from Chinawere in port in Kuwait; however, appellant did not deliver or install any furniture beyond the 480 metal beds (tr. 2/120-24). 75. Grow Life's containers arrived in port in staggered shipments between September 13, 2015 and October27, 2015. Appellant explained why the shipments were staggered: "I stoppedto seethe containers I have how long it takes" (tr. 2/126). Appellant claimedhis original target delivery date was September20, 2015 (tr. 2/126-27), and that it was a business decision to staggerthe container shipments: Q. So it was GrowLife's business decision notto ship all ofthe containers atthe same time to Kuwait? A. Yes. Q. Ifyou had shipped all ofthe container[s] at the sametime, wouldthey likely have arrived around 13 September2015 whenthe first container arrived? A. Yes. Ifthe delivery schedule

-- ifthe government contracting official, COR, ifthey werepositive with me, yes. Here is the point. Here is the point. (Tr. 2/130-31) 76. On November 3, 2015, Grow Life responded to the October26, 2015 cure notice, statingthat 11 containers had arrived in Kuwaitbetween September 5, 2015 and October27, 2015. GrowLife stateqthat it couldhave all paperwork issues resolved by Monday, November 8, 2015, and that it could complete delivery and installation ofthe furniture bythe early finish date ofNovember28, 2015, or, atthe latest, by December4, 2015. (Supp. R4, tab 73) 77. Grow Life'sproposed late finish date ofDecember4, 2015, was more than a weekbeyondthe November28, 2015 deadline set forth in the cure notice. 78. CPT Winterfeldt testified that appellant was given an opportunity to respond and comply with the curenotice (tr. 3/79). She further testified that the decision to terminate was made afterNovember2, 2015: Q. Captain Winterfeldt, the cure notice that was sent on 26 October listed the first delivery for Appellantto make on 2 November. Do you know whetherthe decision to terminate the contract was made after 2 November?

15(Tr. 3/85) A. Ibelieve so. And I only say that because Sergeant First Class Segrain was at Camp Buehring at the gate ready to escort them in on that date. And three days in a rowthey came back and weren't able to deliver. And then when they delivered, they had nobody toput anythingtogether and did nothave the full amount ofthe bedframes even there. And I believe that'swhen Army Contracting Command started to see that they had not met their obligations. So, it had to be afterthat date.

79. When Grow Life attempted to contact CPTWinterfeldt, she told Grow Life to contact CPT Scovell at contracting command (tr. 3/80). 80. On November 9, 2015, CPT Scovell informed Grow Life that the government would not pay DBA insurance under CLIN 0014, because the contractor did not install the 480 bed frames delivered under CLIN 0008 (R4, tab 18). 81. Appellant's memorandum, dated November 10, 2015, subject: "US Military Caused Delays under Contract W912Dl-15-P-0051/Mod. P0002," sets forth a timeline for Grow Life's shipments underthe contract:

(Supp. R4, tab 74) First shipment with 1container, arrived in Kuwait on September 13, 2015. The second shipment, with 2 containers, arrived on October 2. 2015. The third shipment, with 3 containers, arrived on October 9, 2015. The fourth shipment, with 5 containers, arrived on October 27, 2015.

82. On November 15, 2015, Grow Life'srepresentative, Mr. Kevin Smith, emailed the CO: "I literally have 2,200 beds, 1,370 mattresses, and 1,230 wall lockers sitting 62 miles from Buehring and Arifjan" (R4, tab 19). Those quantities, however, were still 95 beds, 3,575 mattresses, and 1,870 wall lockers short ofthe contract requirements. The remaining items had not yetbeen shipped to Kuwait from Grow Life's warehouse in Dubai (tr. 2/134).

1683. The same day, November 15, 2015, the CO issued a final decision (COFD) partially terminating the contract for cause (R4, tab 20). The COFD stated thattime was ofthe essence for this contract, and appellant failed to deliver by September 5, 2015, as required by the contract. Further, it stated that Grow Life failed toprovideproper documentation for badging and customs clearance as required by the October 26, 2015, cure notice. The termination included an effective date ofNovember 3, 2015, the date the CO held a telephone call with Grow Life and discussed the issue ofpartial termination. The termination was emailed to Mr. Smith, who confirmed receipt the following day, on November 16, 2015 (R4, tab 21). F. Appellant's Claim and Board Proceedings 84. On December23, 2015, appellant submitted a certified claim to the CO challenging the partial termination for cause and seeking $1,180,563.72 in damages relating to the termination (R4, tabs 27-28). 85. On January 4, 2016, Grow Life filed a notice ofappeal. The appeal challengedthe partial termination for cause and sought monetary damages in the amount of$1,180,563.72. GrowLife subsequently filed a complaint, dated January 29, 2016, to dispute the partial termination for cause and in support ofits monetary claim of $1,180,563.72. The Board docketed the appeal as ASBCANo. 60398. 86. On February 8, 2016, the Boardwrote to Grow Life, explainingthat only the propriety ofthe termination for cause is beforethe Board as ASBCANo. 60398, and giving Grow Life until February 28, 2016, to explain why the Boardpossessed jurisdiction overthe separate monetary claim. 87. On February 22, 2016, Grow Life responded to the Board's letter and explained that it intended topursue an appeal involving the $1,180,563.72 claim, in addition to its appeal from thepartial termination for cause. GrowLife further explained that it had not received aresponse from the governmentto its December 23, 2015, monetary claim. 88. On February 26, 2016, the Boardwrote to Grow Life, statingthat the Board understood Grow Life intended to pursue an appeal from the deemed denial ofGrow Life's December 23, 2015 monetary claim, in addition to its appeal from the partial termination for cause. The Board docketed the monetary claim as ASBCANo. 60467. 89. On May 9, 2016, the Board informed appellantthat claims over $100,000.00 must be certified when submitted to the CO in accordance with the Contract Disputes Act (CDA) of 1978, 41 U.S.C. §§ 7101-7109, and thatthe Board could not locate the certification in the record. On May 12, 2016, appellant sent the Board a copy ofthe certification ofclaim, which appellanthad furnished to the CO on December 23, 2015.

1790. OnJuly 13, 2016, the Boardheld a conference call with the parties, during whichthe government agreed to provide appellant's monetary claim and certification of claim (supp. R4, tabs 27-28) to the CO for review and issuance ofa final decision. 91. On September 1, 2016, the CO issued a final decision denying appellant's monetary claim (supp. R4, tab 30). 92. On September 5, 2016, appellant appealed the CO's final decision, and the Boarddocketed appellant's monetary appeal as ASBCANo. 60778, which was consolidated with ASBCANos. 60398 and 60467. 93. On April 13, 2017, appellant sent a letter to the Boardrequesting to increase its monetary claim from $1,180,563.72 to $2,746,068.64. 94. OnApril 14, 2017, the government objectedto appellant's request, contending that appellant's request was not an appeal from a CO's final decision. The government requestedthatthe Board deny appellant's request to increase its claim or file an amended complaint explainingthe basis ofthe additional amount (Bd. corr. ltr. dtd. April 26, 2017 at 2). 95. OnMay 23, 2017, the parties held a teleconference with the Board. On May 25, 2017, the Board issued a scheduling order settingJune 5, 2017, as the deadline for "[a]ppellantto file an amended complaint setting forth alleged facts supporting entitlementto any additional damages." 96. OnJune 5, 2017, appellant filed an amended complaint seekingto increase its monetary claim from $1,180,563.72 to $3,569,471.27 (amended compl. 

### ,i 6). DECISION I. ASBCANo. 60398

- Whether Partial Termination for Cause was Justified A. Standard ofReview for Termination for Cause [A] defaulttermination is a drastic sanction which shouldbe imposed (or sustained) only for good grounds and on solid evidence." Lisbon Contractors, Inc. v. UnitedStates, 828 F.2d 759, 765 (Fed. Cir. 1987) (quotingJ.D. Hedin Constr. Co. v. UnitedStates, 408 F.2d 424,431 (Ct. Cl. 1969)). Thoughthis is an appeal broughtby GrowLife, because a termination for default is essentially a government claim, the governmentbears the burden ofproving, "by a preponderance ofthe evidence, that a termination for default was justified." DayDanyon Corp., ASBCANo. 57681, 15-1 BCA ,i 36,073 at 176,151; Keystone CapitalServices, ASBCANo. 56565, 09-1 BCA 

### ,i 34,130 at 168,753 (citing Lisbon Contractors, 828 F.2d at 765). Ifthe government establishes a prima facie case of the contractor's default, then the contractorbears the burdento showthat its default was 18

# i 

# I excusable or causedby the government's material breach. MilitaryAircraftParts, ASBCA No. 59978, 15-1 BCA 

### ,i 36,101 at 176,256. These FARPart 49 principles apply equally in the case ofatermination for cause underFAR52.212-4(m). Genome Communications, ASBCA No. 57267, 11-1 BCA 

### ,i 34,699 at 170,899 (citing GeneralInjectables & Vaccines, Inc., ASBCANo. 54930, 06-2 BCA

### ,J 33,401 at 165,593, aff'd, 519 F.3d 1360, supplemented, 527 F.3d 1375 (Fed. Cir. 2008)). B. Governmenthas made a Prima Facie Showing ofDefault We conclude thatthe government has made aprima facie case showingthat Grow Life defaulted on the contractwhen it failed to provide adequate assurances that it would deliver and install the furniture by the November 28, 2015 deadline set forth in the cure notice. 1. The CureNotice Modified the Contractual Deadline Pursuantto FAR 12.403(c)(l), the government was not required to send a cure notice priorto terminatingthe contract for late delivery. However, by sending a cure notice and establishing a new deadline for delivery, the government waived its right to enforce the original September 5, 2015 deadline. ThunderstruckSigns, ASBCA No. 61027, 17-1 BCA 

### ,i 36,835 at 179,505; see also Yankee Telecommunication Laboratories,Inc., ASBCANo. 25250 etal., 85-1 BCA 

### ,i 17,786 at 88,876 (upholding defaulttermination based on failure to meet new delivery date after government waived earlier deadline). Thus, in this appeal, the cure notice established a new final deadline of November 28, 2015, for the delivery and installation ofall the furniture. 2. Grow Life Failed to Provide Adequate Assurance that it Would Deliver and Install the Furniture by the Cure Notice Deadline The contract incorporates FAR52.212-4(m), which provides thatthe government may terminate the contract for cause ifthe contractor fails to provide adequate assurances offuture performance upon request (finding 17). A termination for default for failure to prosecute the workrequires "areasonable beliefon the part ofthe contracting officerthatthere was 'noreasonable likelihoodthat the [contractor] couldperformthe entire contract effortwithin the time remaining for contractperformance."' Lisbon Contractors, 828 F.2d at 765 (quotingRF! Shield-Rooms, ASBCANos. 17374, 17991, 77-2 BCA

### ,J 12,714 at 61,735). A termination for failure to makeprogress usually occurs where the contractorhas fallen so far behind schedule that timely completionhas becomeunlikely. Hannon Elec. Co. v. UnitedStates, 31 Fed. Cl. 135, 143 (1994), ajf'd, 52 F.3d 343 (Fed. Cir. 1995) (table). Indeed, the government is not requiredto provethat it was impossible for the contractor to completeperformance on time, but instead that "ademonstrated lack ofdiligence

19indicates that [the government] could not be assured oftimely completion." Lisbon Contractors, 828 F.2d at 765. By the end ofNovember, appellant had shipped most ofthe furniture to Kuwait (finding 51). However, appellant had delivered and installed only 480 metal bed frames and had failed to obtain customs clearance for the remaining shipments. Moreover, Grow Life had not obtained base access badges for its employees orcontractors and, therefore, was not in aposition to deliver and install any ofthe furniture thathad arrived in Kuwait. As we discuss further below, the evidence demonstrates that, as ofthe date of termination on November 15, 2015, Grow Life would not have completed delivery and installation ofthe furniture by the extended deadline ofNovember28, 2015. Therefore, we conclude thatthe Army has made aprima facie showing ofdefault. C. Whether Grow Life's Defaultwas Excusable Having concludedthat the governmenthas made aprima facie showing ofdefault, we next address whether Grow Life has demonstrated that its default was "caused by an occurrence beyondthe reasonable control ofthe contractor and without its fault or negligence" or by acts ofthe government. FAR 52.212-4(f); Gargoyles, Inc. ASBCA No. 57515, 13 BCA

## ,r 35,330 at 173,413. Grow Life advances several theories to explain why its default was beyond its control. First, it argues that the government's unilateral modification ofthe bed frame order delayed shipments ofthe bed frames and further delayed the delivery schedule (app. br. at 4-5). Next, Grow Life contends thatthe government failed to cooperate with Grow Life's efforts to obtainbase access for its employees and contractors (id. at 9-12). Finally, Grow Life blames the government for its difficulties with obtaining customs approval, contending that the government failed to cooperate and that it had the necessary paperwork in handpriorto the cure notice deadline (id. at 12-14). We address each ofthese contentions below. 1. Modification ofBed Frame Order Appellant contends thatthe government's unilateral modification ofthe bed frame order delayed shipments ofthe bed frames (app. br. at 3-4). This contention is irrelevant in light ofour conclusion thatthe contractual deadline for installation and delivery ofthe furniture was extended to November 28, 2015. Because most ofthe furniture, includingthe bed frames, were shipped to either Dubai or Kuwait by November 15, 2015 (finding 51), any delay relating to the shipment ofthe bed frames should not have affected Grow Life's ability to deliver and install the furniture at the contractual destination by November 28, 2015. 202. Difficulties with Customs Approvals Grow Life next argues thatthe government failed to assist Grow Life with obtaining customs clearance. In particular, Grow Life contends that CPT Winterfeldtwas in possession ofthe necessary customs paperwork, but failed toprovide the signed documents to Grow Life in sufficient time to complete delivery and installation within the deadline (app. br. at 15). The contract expressly places onthe contractorthe duty to obtain customs clearance for its shipments. The contract states: The Contractor shall be responsible for all customs clearance actions. All necessary arrangements, clearanceprocedures, and coordination with the Host Government customs, will be the sole responsibility ofthe Contractor. The contract also sets forth the address and location ofthe government office responsible for reviewing and signing customs documentation, as well as a list ofthe specific documents that the contractoris to supply to the CO in order to obtain a government signature on the customs documents. Finally, the contract sets forth precisely the steps for processing incoming shipments, including the use ofan AK 302 form preparedby the courier, obtaining the customer's signature (in this case, the CO orher delegate), and submission ofthe form to Kuwaiti General Administration ofCustoms (KGAC). (Finding 19) The hearing testimony further confirmed that Grow Life was to submit original documents

- specifically FormAK 302

- to the CO for government signature and then Grow Life was responsible for submitting the original signed documents to Kuwaiti customs for approval (finding 20). Atthe hearing, Mr. Rahmatzai admitted thathe had no priorpersonal experience with obtaining customs clearance for shipments into Kuwait. Although he claimedto have an associate, Mr. Krishna Kumar, responsible for handling logistics, Mr. Kumar was located in Dubai, not Kuwait, and did notpersonally assist with obtaining customs approvals. (Finding 54) Instead, Grow Life relied on Elisha Almeida, with Frontline Logistics, as Grow Life's agent to shepherd its shipments through the Kuwaiti customs approval process (finding 3). The record is not clear, nor did Grow Life explain, the business relationship, if any, between Grow Life, Frontline Logistics, Mr. Kumar, and Ms. Almeida. The record demonstrates that GrowLife's decision to delegate the responsibility for obtaining customs approvals created confusion and ultimately failed to obtain the necessary customs approval for its shipments.

21There was considerable back-and-forth betweenMs. Almeida, Mr. Rahmatzai, and government representatives, including CPTWinterfeldt, regarding the customs paperwork. Grow Life contends thatthe government, and CPT Winterfeldt in particular, held up the paperwork andprevented Grow Life's agents from obtaining the necessary customs approvals. For example, Grow Life contends that CPT Winterfeldtwrongfully delayed the September 15, 2015 shipment containing wall lockers, because the bill oflading described the shipment as containing file cabinets (tr. 2/101-04). Grow Life additionally contends that it sent apicture ofthe wall lockers to the government and that CPT Winterfeldt falsely denied having received the pictures (app. hr. at 12-13). When Grow Life attempted to correct the description on the bill oflading by typing over and replacing the description, CPT Winterfeldt insisted on having new original documents produced (finding 45). We find CPT Winterfeldt's insistence on having original documentation reasonable, as well as her insistence that Grow Life comply with the terms ofthe contractby bringing all ofthe necessary customs paperworkto the appropriate government office for signature, and then takingthe signedpaperworkto Kuwaiti customs for approval. Her insistence also is consistentwith the express language ofthe contract, whichplaces the sole duty ofobtaining customs approval on the contractor. Grow Life also contends thatthe governmentrefused to issue a "tax exempt letter" to Grow Life. According to Grow Life, this letterwould have exemptedthe furniture from customs duties and obviated the need for customs paperwork. (App. hr. at 12, 21)* During the hearing, Mr. Rahmatzai referred to this exemption letter as DA Form 1687 (see tr. 1/62, 2/28-29). On its face, DAForm 1687 is an internal Army document for delegating signature authority from the CO or CORto otherArmy persons to request and sign customs documents (finding 57). It is not, as Grow Life contends, used to delegate authority to a contractorto submit customs documents under the contractor's own signature, nor is it used as a mechanism to avoid the contractual obligation to obtain a government signature on customs documents priorto submittingthe documents to Kuwaiti

*In its post-hearingbrief, Grow Life cited an example ofaprevious contract for the delivery ofitems to the AirForce in Afghanistan in which it obtained a letter exempting certain items from customs duties, and attached a copy ofthe letter (app. hr., annex 1). We decline to considerthis material, because it is not part of the record and was not properly introduced as evidence during the hearing. See BoardRule l3(b) (except as the Board may otherwise order, no evidence will be received after completion ofan oral hearing); Yamin, ASBCA No. 35373, 90-2 BCA

## ,r22,657 at 113,836 (declining to consider new evidence after close ofrecord that could have been introduced at any stage in the proceedings).

22customs (tr. 1/63, 2/119). The government's alleged failure to issue aDAForm 1687 to Grow Life or its agents, therefore, had no bearing on Grow Life's ability toperform the contract. In sum, we conclude that Grow Life's failure to obtain the necessary approval from Kuwaiti customs is not excusedby the Army's decision not to issue DAForm 1687 or atax exemption letter. 3. Difficulties with EmployeeBadging Process Grow Life contends thatthe government failed to cooperate with Grow Life's efforts to obtain base access for its employees. In particular, appellant states that Mr. Rahmatzai asked CPT Winterfeldt, the COR, for assistance with the badgingprocess, but she did not respond for more than two weeks (app. hr. at 11). The record indicates that Grow Life consistently misunderstood its obligations with respect to base access. For example, in August 2015, Mr. Rahmatzai stated that he did not think that Grow Life would need badges for its employees. He also suggested, wrongly, that his workers could simply obtain a "onetime gate memo pass" in order to install the furniture. (Finding 59) Similarly, Grow Life's agent, Ms. Almeida, proposedusing military escorts to bring laborers onto the base to install the furniture. Neither ofthese proposals was consistent with Grow Life's contractual obligation to provide laborers with base access to assemble and install the furniture. (Findings 18-19) Indeed, Grow Life acknowledges in its post-hearing briefthat appellant was contractually obligated to getthe badges for their labor (app. br. at 10). Despitehaving the necessary information as early as September 6, 2015, it wasn't until September 30, 2015, that Grow Life submitted installation access applications for its workers (finding 63). The governmentrejected the applications, because the applicants lacked the requisite visas. Mr. Rahmatzai admitted that he did not havepersonal knowledge ofthe differenttypes ofKuwaiti visas (finding 72), and Ms. Almeida stated that Grow Life currently did nothave workers with the appropriate Kuwaiti visas (finding 65). We conclude that Grow Life failed to plan adequately for the need to employ individuals with base access (or who would have been eligible to obtain access) to install the furniture. 4. Voluntary Decision to Stop Shipments Atthe hearing, Mr. Rahmatzai admitted thathe stopped delivery ofthe subsequent shipping containers because he was having difficulty obtaining customs approval and base access (tr. 2/126). Grow Life'stimeline for the shipment ofeach ofits 11 containers demonstrates that the shipments were staggered across aperiod oftime from September 13, 2015 through October 27, 2015 (finding 75). Moreover, Grow Life admitted at the hearing that it made a business decision to staggerthe furniture shipments, ratherthan scheduling them to arrive on or nearthe same date (finding 76). 23By voluntarily staggering its shipments, Grow Life undercuts its argumentthatthe government was responsible for Grow Life's delay in performance. Accordingly, the delay was not excusable. II. ASBCANo. 60467

- Whether Government Breached its Implied Duty ofGood Faith and FairDealing Both parties to a contract are subject to the implied duty ofgood faith and fair dealing. This doctrine is based upon the notionthat every contract "imposes upon each party a duty ofgood faith and fair dealing in its performance and enforcement." Metcalf Constr. Co. v. UnitedStates, 742 F.3d 984, 990 (Fed. Cir. 2014)(quotingRestatement (Second) ofContracts§ 205 (1981)); see also Kelly-Ryan, Inc., ASBCA No. 57168, 18-1 BCA

## ,r 36,944 at 180,030;Relyant, LLC, ASBCA No. 59809, 18-1 BCA

## ,r 37,085 at 180,539. Pursuantto this implicit duty, each party's obligations "include the duty not to interfere with the otherparty'sperformance and notto act so as to destroy the reasonable expectations ofthe otherpartyregarding the fruits ofthe contract." Metcalf, 742 F.3d at 991 (quoting Centex Corp. v. UnitedStates, 395 F.3d 1283, 1304 (Fed. Cir. 2005)). GrowLife'spost-hearingbriefdoes not address its allegations set forth in ASBCA No. 60467 thatthe governmentviolated its duty ofgood faith and fair dealing. However, Grow Life raises specific contentions about the government's cooperation regarding base access and customs processing that, iftrue, may constitute a breach ofthe government's implied duty ofgood faith and fair dealing. First, Grow Life contends thatthe government delayed providing information abouthow to obtain access badges and initially provided incorrect information aboutthe badging process (app. br. at 12). Second, Grow Life argues thatthe government improperly withheld necessary signatures on the customs documentation Grow Life submitted, thereby delaying acceptance ofits shipments into Kuwait (id. at 12-14). Grow Life also maintains that the government failed to cooperate by refusing to sign a blanket tax-exemption letter for the entry ofthe shipments into Kuwait (id. at 14). After examining the communicationbetween the parties, we see no evidence that the government specifically intended to prevent Grow Life from performing its contractual duties. The contract required cooperation betweenthe parties to secure base access (badging) for the contractor's employees. The contractprovided instructions about the location and phone number for the badging office, and expressly warned the contractorthatbadging for residents ofcertain countries is restricted orunavailable andthatthe contractormust contact the badging office in orderto obtain a waiver ofsuch restrictions. (Finding 18) On August 22, 2015, Grow Life first reached outto the COR, CPT Winterfeldt, for information aboutthe badgingprocedure. CPT Winterfeldtresponded that Grow Life should 24"gothroughthe proper channels, because I do not do anything with security orbadging." (Finding 58) Ultimately, however, on September 6, 2015, the governmentprovided the necessary informationto Grow Life via email (finding 61). However, it was not until October 2, 2015, that Grow Lifeparticipated in an extensive dialogue with SFC Segrain regarding the requirements andpaperwork necessary for base access (findings 64-68). CPT Winterfeldt's initial response to Grow Life's inquiry was not terribly helpful and could be construed as inconsistentwith the contractual requirement of"coordination" with the CO or COR. However, we find that any delay in obtaining information about base access is nullified by the government's extension ofthe original September 5, 2015 performance deadline. As we previously held, the government's cure notice extended Grow Life'sperformance deadline to November 28, 2015. With the extended performance deadline, Grow Life had ample time to hire workers with the appropriate Kuwaiti visas who would have been capable ofobtaining approval to access Camp Arifjan or Camp Buehring. The parties' correspondence regarding obtaining customs approval for the incoming shipments also shows frustration on the part ofthe government, butthat frustration falls well short ofbad faith. CPT Winterfeldt made every effort to assist Grow Life with obtaining approval from Kuwaiti customs, including hand delivering Grow Life'spaperworkto the Kuwaiti customs office. (Finding 46) Atthe hearing, Grow Life failed to identify any specific duty that CPT Winterfeldt failed to meetwith respectto customs approval (finding 20). Instead, Grow Life fell back on its misplaced insistence that the government should have issued a so-called "tax exempt letter" to obtainblanket approval from Kuwaiti customs for the entry ofGrow Life's shipments (tr. 2/139-41). As we explained above, the "letter" to which Grow Life refers is an internal Army document for delegating signature authority to sign customs documents, not a document for exempting a contractor from Kuwaiti customs requirements (finding 57). In sum, the evidence demonstrates that the government did not breach its implied duty ofgood faith and fair dealing. Moreover, the evidence demonstrates that, as of termination for default on November 15, 2015, Grow Life would not have delivered and installed the furniture by the extended deadline ofNovember28, 2015. III. ASBCANo. 60778

- Whether Grow Life is Entitled to Delay Damages In cases involving delivery schedules, such as this appeal, we repeatedly have held that the "action ofthe parties in agreeing upon a new delivery schedule eliminates from consideration the causes ofdelay occurringpriorto such agreement." Thunderstruck, 17-1 BCA

## ,r 36,835 at 179,505 (quoting PrecisionDynamics,Inc., ASBCA No. 42955, 97-1 BCA

## ,r28,846 at 143,892); see also BulovaTechnologies Ordnance Systems LLC, ASBCA No. 57406, 14-1 BCA

## ,r 35,521 at 174,097 (in agreeing to anew delivery 25schedule, the contractor erases the ability to raise pre-existing causes ofdelay). In this appeal, the government's decision to extendthe period ofperformance until November 28, 2015, eliminated from consideration any delays occurringpriorto that date. Moreover, because we have concludedthat the government'spartial termination for default wasjustified, and that Grow Life would not have completedperformance by the November28, 2015 deadline, Grow Life is not entitledto delay damages.

The appeals are denied. Dated: June 3, 2019

I concur

Administrative Judge Chairman Armed Services Board ofContractAppeals CONCLUSION

Administrative Judge Armed Services Board ofContractAppeals I concur 

# c~----- OWEN C. WILSON Administrative Judge Vice Chairman Armed Services Board ofContract Appeals I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCA Nos. 60398, 60467, 60778, Appeals ofGrow Life General Trading, LLC, rendered in conformance with the Board's Charter. Dated:

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

26