ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- ) ) ASFA Construction Industry and Trade, Inc. ) ) Under ContractNo. 000000-00-0-0000 )

APPEARANCE FORTHEAPPELLANT:

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 57269

D. Lee Toedter, Esq.

Orange Beach, AL Raymond M. Saunders, Esq.

Army ChiefTrial Attorney MAJ John R. Longley, JA CPT Tyler L. Davidson, JA CPTEdwardAhn, JA

Trial Attorneys

OPINION BYADMINISTRATIVE JUDGE PAGE

ASF A Construction Industry and Trade, Inc. (ASFA), appeals from a deemed denial ofits claim seeking a $478,476.02 equitable adjustment or, alternatively, a termination for convenience settlement based upon an alleged implied-in-fact contract with the Joint Contracting Command-Iraq/Afghanistan (JCC-1/A) Regional Contracting Center-Balad (RCC-Balad) to repair an asphalt plant and rock crusher at Logistics Support Area (LSA) Anaconda in Balad, Iraq. Ourjurisdiction arises from the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109. In a previous decision,ASFA ConstructionIndustry & Trade, Inc., ASBCANo. 57269, 11-2 BCA**~** 34,791, we denied the government's motion to dismiss this appeal for lack of jurisdiction on the basis that the alleged contract did not exist, holding that triable issues remained regarding the parties' respective conduct whichprecluded dismissal. 11-2 BCA**~** 34,791 at 171,249. The parties have elected to submitthe appeal onthe written record pursuant to Board Rule 11. We decide entitlement only. We sustain the appeal.

FINDINGS OF FACT

1. On 23 August 2007, the JCC-1/A RCC-Balad issued a request for information (RFI) to companies "interested in constructing a concrete batchplant on LSA Anaconda." Potential contractors were asked to respond by 25 August 2007 regarding theirplanned approach for the construction and operation ofthe concrete batchplant. Among other questions, the RFI asked potential contractors ifthey could "bring a batch plant onto LSA Anaconda at your own cost and the possibility ofno work to start with." (R4, tab 1) At the time, only one concrete contractorwas on Balad Air Base and the government did notwantto bring in concrete from outside the base due to security concerns regarding the potential for explosives to be hidden within the concrete. Through the RFI, the government was attempting to increase contracting capability operating inside the base to meet its concrete requirements and also to secure more competitive prices. (R4, tab 50 (Berg dep.) at 16-18)

2. ASFA responded to the RFI by letter dated 25 August 2007 (R4, tab 2).

3. By memorandum dated 5 September 2007, contracting officer (CO) Chad D. Miller notifiedpotential contractors that they would "be given the opportunity to present theirplan ofconstructing a [concrete] batch plant" during a one-hour oral presentation on 19 September 2007. Topics to be addressed included equipment, set-up, barrier material,
raw materials, labor, delivery and security, quality ofconcrete work, and financial
resources. Potential contractors were directed to submit a "read ahead packet" to the government by 14 September 2007. (R4, tab 3)

4. ASFA provided the required read ahead packetto the government priorto its oral presentation (R4, tab 22). ASFA outlined by brand name, model designation, and (where appropriate) capacity ofthe concrete batch plant, stone crusherplant, mixertruck, and otherpieces ofequipment and vehicles thatASFA intended to provide (id. at 5). ASFA stated that "[a]ll equipment is ready to be shipped to Anaconda at the ASFA warehouse in Turkey," and that "delivery to Anaconda can be completed within 45 days." ASFA further stated that installation "can be compl[e]tedwithin 30 days upon arrival of all the equipment in Anaconda." (Id. at 7)

5. By memorandum dated 31 October 2007, Lt Col Todd M. Burkhardt, USAF, Chief, RCC-Balad, notified ASFA that it hadbeen selected to build a concretebatchplant
on BaladAirBase, stating:

1. Congratulations! ASFA Group has been selected as the contractorto build a batchplant on BaladAir Base, Iraq. This award is based on yourverbal presentation for the construction ofa concrete batchplant on BaladAir Base, Iraq.

2. We are currently working with Terrain Management to get the land for the batchplant and rock crushing area. The land space we had was determined to be unsuitable and we are diligently working to get a new area. We will let you know
as soon as the land is available.

23. Please acknowledge receipt ofthis letter in the space providedbelow and promptly return a signed copy ofthis letterto the addressed [sic] noted above.

4. We look forward to your companyjoining our contract supportteam and anticipate a prosperous working relationship.

5. Refer any questions to [Kimberly Burt].
(R4, tab 4) ASFA acknowledged receipt ofthe memorandum on 2 November 2007 (id.).

6. An asphalt plant and a rock crusherhad been abandoned on the land to be given to ASFA to erect its concrete batch plant. It was the government's practice to use this leftover or "stay-behind" equipment for its ownpurposes. (Berg dep. at 31-36). Following the concrete batchplant award notice, CO MAJ Robert J. Berg conducted a terrain walk with Mr. OrcanFikirdanis, an ASFA site representative. During the terrain walk, CO Berg instructed ASFA to push the abandoned, government-owned asphalt and rock crushing equipment aside. (Id. at 27-28, 30-32)

7. An 18 November 2007 email entitled "BatchplantUpdate" from Capt Karsten E. Lipiec ofthe Terrain Management Office, The Mayor's Cell, LSA Anaconda, toLTC Joseph Tyron, CO Berg and others provided:
Gentlemen, I went out and did a survey ofyour asphalt plant/crusher. See attached slide.[IJ [CO] Berg from contracting has offered the [ASFA] company to clean this up as part oftheir contract to start a new concrete batch plant here

.... My plan wouldbe for your equipmentto be stored near the perimeter, in a fenced-in, locked location not too far from here.... As you mentioned, your equipment does not run but youplanto fund an expert to troubleshoot it for you NET Jan 08.
[CO] Berg,
Sir, given this new information, how feasible is it to have [ ASFA] performthis work? Once clear, the land could

1The email included an attached document entitled "20 BDEAsphalt Plant.ppt" (R4, tab 6). That document, however, is not included in the record.



### 3(R4, tab 6) support set-up of[ ASF A's] equipment. [ASFA's] plant requires 11,300 square meters. It could easily fit into the 28,467 SM measuredhere.

8. A 10 December 2007 email from CO KristopherJ. Pondo, Capt, USAF, advised ASFA:

(R4, tab 7) You are allowed to open an asphalt planton Anaconda. The lot ofland will no longerbe divided butwill be ASF A's for both an asphalt and concreteplant. A letter will soon follow signedby [CO] Berg and [LTC] Tyron. Fornow I am authorizing youto proceed.

9. By a 10 December2007 memorandum from LTC Tyron and CO Berg, the government notified ASF A that it hadbeen selectedto build an asphaltplant in addition to the concrete batch plant, stating:

1. Congratulations! ASFA Group has been selected for as [sic] the contractorto build anotherbatchplant on BaladAir Base, Iraq. This award is based on yourverbal presentation for the construction ofan asphaltbatchplant on Balad Air Base, Iraq.

2. We are currently working with Terrain Managementto get the land for thebatchplant androck crushing area. The land spacewehadwas determinedto be unsuitable andwe are diligently workingto get a new area. We will let you know
as soon as the land is available.

ASFA was asked to acknowledge receipt ofthe "Notice ofAward," and toldto direct any questions to CO Pondo. (R4, tab 8)

10. In authorizing ASFA to establish an asphaltplant, the parties intendedthat ASF A use the abandoned government-owned asphalt equipmentpresent on Balad (Berg dep. at 47-48). CO Bergtestified thatthe government-owned asphalt plantwas non-operational and inpoor condition because "somebody had cannibalized a lot ofthe components ofall this equipment" (id. at 40-41). However, when asked during a deposition whetherthe governmentwas aware thatthe asphaltplantwas in disrepair at the time the notices ofaward to establish the concrete and asphaltplants were issued to

4ASFA, CO Pondo testified "No." (R4, tab 53 (Pondo dep.) at 141). ASFA's CEO, Mr. Faruk Cercer, testified at a deposition, on behalfofASFApursuantto Federal Rule ofCivil Procedure 30(b)(6), that although ASFA knew that the asphalt equipment "might not be 100 percent operational" as of 10 December 2007, ASFAwas not fully aware of the state ofdisrepair until an inspection "[i]mmediately after the award" (R4, tab 4 7 (Cercer dep.) at 86-88). We find, consistent with Mr. Cercer's testimony and CaptLipiec's 18 November 2007 email, that ASFA and the government were aware that the asphalt plantwas not operational prior to 10 December2007, butwere unaware ofthe extent ofdisrepair until afterthat date.

11. CO Bergtestified to the following: 

### Q So ifyou needed aggregate for concrete, and that was yourprimary emphasis, why did you award the Notice to Proceed and Award for the development ofthe asphalt plant?

A First ofall, let's go backto the beginning. We
were doing a terrain walk. In the terrain walkwithASFA, in looking at

-- when we saw the piece ofequipment, we noticed there was an asphalt

-- an asphalt

-- leftovers ofan asphalt plant from the government, from some engineering unit.

And at that point in time I rememberthe guy asked me, do we buy asphalt. And I said, occasionally we do

.... So he said, ifwe have the asphaltplant, canwe compete for thatbusiness? And I said sure, no reason you can't compete for the business. Sothey came backwith a proposal, a plan to fix the asphalt andto compete for that. So that's howthe asphalt came in.

And when word came around that they were goingtoput an asphalt in, there was a lot offolks that liked that idea. TheAir Force liked that idea. Obviously the engineers liked the idea. Sothere was some government folks that said, that's a good idea. We can use that asphalt planthere in Iraq.

So it was based on the fact that ASFA said they
can get an asphaltplant up using that piece ofequipmentthat
was left behind.

5(Berg dep. at 85-86) We find, based on CO Berg'stestimony, that ASFA offered to repairthe non-operational asphalt plant and rock crusher in exchange for use ofthe repaired equipment in future asphalt competitions and that the government agreed.

12. By 18 January 2008, the parties had discovered that the government-owned rock crusher and asphalt plant were missing necessary parts. CO Pondo's email ofthat date to other government "addressees" noted that "someonehas been taking essentially stealing parts offofthe machine," including "computerparts from the asphaltplant, engines, and conveyorbelts." CO Pondo made clearthat he would ensure that anyone discovered having taken these things would "notdo business on this base, in all ofIraq or with the U.S. Government anywere [sic]." (R4, tab 21at23)

13. In a 21January2008 email to CO Pondo and COBerg entitled "ASFA-Rock Crusher & Asphalt Plant," Mr. Fikirdanis stated that he ''would like to [take over] the equipment at the yard in 'as is' condition" before returning to Turkey for medical treatmenttwo days later. CO Bergreplied the same day stating thatthe "20thEngineer [Brigade] are [sic] ready to sign overthe equipmentto yourcompany," and asked who could sign for ASFA. Mr. Fikirdanis's 21January2008 reply stated that hewould "like to sign the necessary documentation." Inresponse, CO Berg asked: "[CO] Pondo can you arrange this?" (R4, tab 24)

14. According to a 28 January 2008 email from CO Pondo to Mr. Fikirdanis:

The 20th Engineers have saidthat the program office who owns the rock crusher and asphalt machine will pay for the parts. Ifwebuy the parts we would like youto install them. We arejustwaiting for the guy to come outto do the assessment to tell us what is needed. It is told to me that the guy will be out here mid February or early March. I will get you in contactwith him as soon as I learn more information.

As far as the transfer ofproperty goes, I wantto wait till the machine is fully restored afterwe install the parts. Then we can transferthe rock crusher and asphalt machine
over as a solidpiece ofusable equipment. This transfer will nottake placetill April timeframe. Please let me know ifyou have any questions.
(R4, tab 9) CO Pondo testified that it was his understanding, as of28 January 2008, that ASFAwould be repairing the asphaltplant and rock crusherbased on "[t]he 20th Engineering telling me atthat pointthat they would buy theparts and that they would-theywouldbuytheparts and that ASFA wouldrepair the machine" (Pondo dep. at 32-33). CO Pondo's deposition testimony included the following exchange:

6

### Q How did you intend to communicate your thought that ASFA will be repairing the asphaltplant and rock crusher? How did you intend to communicate that to ASFA?

A Thatthey will be making repairs? They offered to make the repairs.
Q Did you accept their offer?



### A No. Q Did you reject their offer?

A I said there was no contract. I mean, there was no contract. However, they agreed to

-- they said ifyou would give us the parts, we'11 make the repairs on that. 

### Q Did you concurwith their offer at any point in time?

A Torepairthem? Yes.
(Id. at 37) CO Pondo further testified that ASFAwould recoverthe costs ofrepairing the asphalt plant and rock crusherthrough a follow-on Blanket Purchase Agreement (BP A) for asphalt (id. at 33-34). Mr. Cercer likewise testified that ASFAwas promised a BPA in return for installing parts onthe asphalt plant and rock crusher (Cercer dep. at 28, 50). We find, basedupon verbal exchanges and supported bywritten correspondence, that by 28 January 2008 theparties hadreached a tacit agreement underwhichthe government wouldpurchasenecessary parts for the asphalt plant and rock crusher, ASFA would install those parts and makethe necessary repairs, and the government would allow ASFA to use the government's repaired asphalt and rock crushing equipment and award ASFA an asphalt BP A in return.

15. A chain ofemails began on 28 January 2008, as CO Pondo wrote Mr. David S. Schwartz, Assistant Product Manager, Team Leader Construction Equipment, SFAE-CSS-FP-C, to introduce Mr. Fikirdanis:

I would like you to meetMr. Fikirdanis. He is one of
ourcontractors out here, who will be repairing the [a]sphalt plant and rock crusher. I told him I would get him in contact with someone who knew a bit about the machines. Any

7assistance to Mr. Fikirdanis would behelpful to us here at Balad.
(R4, tab 10 at 4-5)

16. Mr. Schwartz's email reply of29 January 2008 advised CO Pondo:

I am working on sending two FSRs [field service representatives] to Balad to inspect the crusher and work with unit personal [sic] to orderparts to get it fixed. Once parts arrive in country, the FSRs will return and repair the crusher, providetraining, and then leave. Where does Mr. Fikirdanis fit into all this and what does he need from me?
(R4, tab 10 at 4)

17. In response to Mr. Schwartz's query, CO Pondo stated, by email dated 31 January 2008:

The company ASFA group has statedthat ifwe give them the parts necessary for the repairs that they would make the repairs themselves. Afterthe machines are fully operable, we are planning to tum them overto the contractor as GFE [government-furnished equipment] so they may use them to produce [a]sphalt and concrete out here on Balad. We would then cut a BP A with ASFA at a cheaperprice to buy the materials from them.
(R4, tab 10 at 3)

18. Mr. Schwartzresponded on 31 January 2008, telling CO Pondo that "[m]y contract does not cover anything to do with giving parts to the ASFA group." He noted that his organization was "onlyworking onthe crushing plant," and stated that the FSRs would "return to install [parts] with help from the unit, orASFA ifthe 20th wishes, get the crushingplant operational, and provide training." Mr. Schwartz further stated:

I am aware that the 20thwishes to tumthe plant overto a contractor and wewill provide the necessary training so they
can operate and maintain the crushingplant.

8I believe that we can help with providing what you need to support yourBPAwith ASFA after the FSRs leave.
(R4, tab 10 at 2-3)

19. On 4 February 2008, Mr. Fikirdanis inquired by email ofCO Pondo regarding the "[c]urrent status of[a]sphalttanks which [have] been taken by PMA [another contractor]." Mr. Fikirdanis also asked for "[s]ome form ofan agreement for utilization ofthe [a]sphalt plant." CO Pondo replied that he would "get an update from PMA" regarding the tanks, and advised Mr. Fikirdanis that "the agreement will be worked out with [CO] Berg as he will be taking over the details ofthis project." (R4, tab 25)

20. By 5 May 2008, Mr. Doug Schmidt, a field service representative, completed his inspection ofthe rock crusher. By email dated 5 May 2008, CW4 Raymond P. Hursh provided ASFA with a copy ofa list ofrepair parts preparedby Mr. Schmidt. CW 4 Hursh's 5 May 2008 email to ASFA also forwarded an email from the rock crusher manufacturer that stated: "PerDoug'srequest, here is the information on the authorized Terex 

## ICedarapids, Inc. dealer in Turkey. Anyparts that the Turkish company overseeing the CSWP in Anaconda wants to buy will need to go through these people." (R4, tab 26)

21. In a 16 June 2008 email, CO Thomas E. Tortorella, Capt, USAF, asked ASFA to "provide a cost estimate onhow much you think it would costto replace the parts on the asphalt plant (not the rockcrusher)." Mr. Aytekin Aydemir, contract manager for ASFA, replied the next morning that it would take time for ASFA to provide an estimate. CO Tortorella's 17 June 2008 email response reminded Mr. Aydemir that the estimate should only pertain to the asphalt plant. (R4, tab 27) CO Tortorellatestified that he could notrecall why he asked ASFAto provide a cost estimate. CO Tortorella further denied directing ASFA to purchase parts for the asphalt plant. (R4, tab 57 (Tortorella dep.) at 66, 73-74) We find, however, that CO Tortorella's 16 June 2008 email indicated the government was considering having ASFA provide parts for the asphalt plant.

22. ByJuly 2008, responsibility for purchasingparts for the rock crusherhad shifted to ASFA (R4, tab 11; see also Tortorella dep. at 78-79; finding 20). On 7 July 2008, CO Tortorella inquired ofMr. Aydemir: "Whatis the status ofthe Rockcrusher? Are youplanningto purchaseparts for the Rockcrusher[?]" Mr. Aydemirrespondedto CO Tortorella's inquiry, "Someparts have beenprovided from Turkey and somehave been ordered from USA. All the materials will be loaded at one time when we receive the rest ofmaterials from USA and send it here [t]o Balad." (R4, tab 11)

23. On 6 September 2008, Mr. Mehmet Z. Senler, an ASFA site manager in Balad, emailed Mr. Cercer describing a conversation between Mr. Senler and CO MAJ Jason R. Conde regarding the asphalt plant. According to Mr. Senler's email,

9Mr. Senler informed CO Conde that the parts for the rock crusherhad arrived at Balad and were being installed. Mr. Senler also requested a letter from CO Conde stating that ASFA is authorized to operate the asphalt plant. 2 CO Conde stated, according to Mr. Senler's email, that he could not provide such a letter, noted that the matterhas taken too much time, and stated that ifASFA wantedto retain possession ofthe asphaltplant it shouldprovide a letter ''with the information on when you can start operating, what would bethe daily amount ofproduction, [and the] possible unit price ofapproximate production." (R4, tab 28 at 1)

24. CO Conde was unfamiliar with the asphalt plant matterwhen first contacted by ASFA (R4, tab 56 (Conde dep.) at 66-67). By letter dated 12 September 2008, ASFA provided CO Conde with a history ofthe rock crusher and asphalt plantrepair effort. According to ASFA's letter, in or about June 2008 the governmenttold ASFA that the governmentprovidingthe missing parts for the asphalt plant and rock crusherwould take too long, except for the parts at PMA'sjobsite, and that "ifthose parts are providedby [ASFA], it would be easier." ASFA advised CO Conde that "[r]ight after [the] government's decision we started to work" and consequently orderedparts for the rock crusher and asphalt plant. ASFA's letter also told the COthat it had to get backthe parts from the PMA site, thatthe capacity ofthe asphalt plant wouldbe approximately 1500 tons/day, and that the sales price wouldbe approximately $140-$150 perton. (R4, tab 12)

25. In a 17 September 2008 email to Mr. Senler, CO Conde stated:

I have thoroughly discussed your issues and concerns to the individuals that determine the final disposition ofthe GFE (GovernmentFurnished Equipment) that you have in your possession. Additionally, I gave them all ofthe supporting documentation that youhave provided me and they are in the process ofdetermining whatto do with this equipmentbased
on all the facts.

As I have stated in our several meetings, the equipment in question is not owned by my organization [ n]or was it provided to you in a contractual agreement, because ofthis fact I am no longer in a positionto further address your

2 The letterwas needed to facilitate discussions between ASFA andthe asphaltplant manufacturer (R4, tab 28 at 1-2).

10

### concerns. This is clearly not a contract issue, but a Mayor Cell I

### Terrain [m]anagement and [e]quipment owner issue. They are fully aware ofthe situation and from this point on I cannotproceed any further with this issue.
(R4, tab 30 at 2)

26. On 18 September 2008, ASFA emailed CO Pondo, who was no longer in Balad, and requested that he contact the "Mayorcell or [CO] Jason R. Conde" regarding the asphalt plant and the rock crusher (R4, tab 29 at 1-2). CO Pondo replied to ASFA on 23 September 2008:

I sent an e-mail to the Major. I am waiting for a reply from him.

Please do not discuss the offering ofajob or anything to the Major. My reason for helping is not bec[au]se ofthejob offer, butbee[au]se I would like to straighten out any error on the govemment[']s part.
As far as ajob goes I would have to put it on hold for now. I will definately [sic] keep you in mind though.
(R4, tab 30 at 1) CO Pondo emailed ASFA again on 25 September 2008, stating that he had "heardnothing from the Major" (R4, tab 44, ex. 32). Although CO Pondo testified that he actually sent an email to CO Conde (Pondo dep. at 82), CO Conde testifiedthat he did not remember receiving an email from, ortalking to, CO Pondo (Conde dep. at 83).

27. The record contains a memorandum for record by lLTJames M. Sering entitled "REMOVAL OF ASPHALT EQUIPMENTFROMASFA AREA." The memorandum suggests the government removed the asphalt equipment from ASFA's control on or about 17 September 2008. 3 

### (R4, tab 29 at 3) However, CO Conde testified that he did not think that the asphalt equipment was actually removed (Conde dep. at 79-80). A 20 February 2009 invoice for 385,836.40 TL (Turkish Lira) indicates that ASFA continued to buy repairparts after September 2008 (R4, tab 44, ex. 47 at 4-5, tab 49, ex. 49 at 1-2). We find that the government allowed ASFA to retain possession of the asphaltplant and rock crushing equipmentbeyond September 2008 (see 

### R4, tabs 47, 49 at 2).

3 

### Although the memorandum is dated 18 August 2008, it refers to events on 16 and 17 September 2008.

1128. In late August 2009, the government was preparing to dismantle the asphalt plant and rock crusher (R4, tab 60 (Allen dep.) at 98). Afterbeingtold by an ASFA representative thatASFA hadpurchased over $300,000 in missing parts 

### (id. at 97), COLTKevin W. Allen sent a 24 August 2009 email to Mr. Ibrahim H. Cigerli, an ASFA site manager, asking: "What are the contract numbers associated with the attached two notices ofaward[?]" (R4, tab 33 at 3). CO Allen explainedthat "[t]his is needed in order for us to determine exactly what ASFA was required to do bythe government" and stated that "[n]o further action will be taken until the requested information is received" (id.). On 29 August 2009, CO Allen emailed Maj Jack L. Nemceffll, USAF, Commander RCC-Balad, Maj Donald A. Jones, 557 ERHS (Expeditionary Red Horse Squadron), USAF, and others stating that he "cannot authorize any action be taken" pending ASFA's response to his inquiry. Maj Jones replied to CO Allen on 29 August 2009 stating: "Well, we aren'tthrowing anything away but we will start taking it down nicely and putting [it] in a safe place (RPAT yard). Ifthey have a valid claimwe will bring it right backto them good as new!" CO Allen responded, with copy to Mr. Cigerli, that "it would be in the government's best interest to do nothing" pending a response from ASFA. 

### (Id. at 1-2)

29. ASFA respondedto CO Allen's 24 August 2009 email on 3 September 2009. ASFA referred CO Allento CO Pondo as a government official familiar with events that had taken place regarding the asphalt plant androck crusher. ASFA noted that it repaired those items atthe government'srequest, and advised that ASFA would seek compensation for repairs it had made:

ASPHALTPLANTAND ROCK CRUSHER:

After [the government-supplied technical representative] prepar[ed] the list ofthe missing parts ofthe rock crusher, expectedparts hadnot arrived [at] Anaconda until June 2008. Several verbal communications tookplace and the government determined thatproviding theseparts wouldtake
a long time and ASFA accepted to provide these parts in orderto make at least the rock crusher operational. Thus, ASFA provided all necessary parts to repair the crusher and spent approximately $1OOK to include purchasing ofmissing parts, transportation, installation costs and other site expenses. Necessary paperworkregarding to these expenses may be submittedto your office ifrequested..

. . The rock crusherwas fully repaired by December 2008.

12(R4, tab 13) ...[A]dditionally, ASFA made several investments, purchased
some ofthe missing parts

...but never could produce asphalt due to missingparts ofthe GFE equipment..

. . We were also told by the contracting office that a BP A asphalt contract would be followed after correction ofthe plant which had
never been happened. Onthe other hand, it is understood by ASFA that now, the rock crusher is intended to be removed from our site even though it was given us as a GFE under a mutual agreement.



### Ifthe GFE equipment will be required to be returned to the government, we will be in a position to request you to compensate all our losses raised from the rock crusher and asphaltplantrepairs and other losses by notproviding missing parts ofthe asphaltplant.

30. On 8 September2009, ASFA emailed CO Allen stating: "We could not find a documentation authorizing us to purchase missing parts for the GFE in writing.... This repairwas definitely based onthe discussions between [CO Pondo] and our site representative at that time." (R4, tab 34) CO Allen replied:

We are in the process ofattempting to contact [CO] Pondo for his side ofthe story. I really need documentation from a government representative giving ASFA the authority to purchase the missing parts on behalfofthe government. Without such documentation I can only assume ASFA acted at its ownrisk.
(R4, tab 44, ex. 35) COAllen was unable to contact CO Pondo (Allen dep. at 81).

31. In or about October orNovember 2009, SFC Kevin L. Miller, 194th Engineer Brigade, conducted a technical inspection ofthe rock crusher and asphalt plant (R4, tab 59 (Miller dep.) at 43, 153). SFC Miller determined that the rock crusher and asphalt plantwere missing numerous parts, that the asphalttanker and dedrummerrequired structural repair, and that the rock crusher was not fully operational (id. at 43-67, 153-55).

32. On 17 November 2009, ASFA wrote TSgt Robert E. Powell at RCC-Balad to relate that appellant's site office had been informed that the governmentwas removing

13the asphalt plant and rock crusher from Balad and that "ASFA will be soon be subject to
a demobilization request from the base." Appellant told TSgtPowell:

. As it was discussed in multiple occasions with your office in

the past, ASFA has been invited by your office and thereafter awarded the rights ofthe following by separate award letters;

1. To install and operate a company ownedconcrete batchplant and operate
2. To install and operate existing GFE asphalt plant androck crusher
(R4, tab 14 at 1) ASFA referred TSgtPowell to its prior "discussions with [CO] Pondo, the former contracting officer in RCC Balad," and told TSgtPowell that:

Itwas also discussed with [CO Pondo] separately that they would select a company to award the asphalt plant operating right based on their technical capabilities and the Government would provide fully functional asphalt batch plant equipment completed with a rock crusherto be installed and operated by the successful contractor. The award would again be followed by an IDIQ type asphalt supply contract. After an evaluation period ofthe contractors' capabilities, ASFA again has been selected for the award. 

### (Id. at 1-2) ASFA remindedTSgt Powell that it was discovered during an inspection that the government's asphaltplant androck crusherwere not operational, due to missing majorparts (id. at 2). ASFAurged TSgtPowell to verify with COPondothat the government hadpromisedtoprovideparts for the asphalt plant androck crusherbut failed to do so, resulting in ASFA purchasing required parts (id.). ASFA alleged that it
was damaged by the government's: failing to provide a functioning rock crusher and asphalt plant and award concrete and asphalt IDIQ contracts to ASFA as promised; ordering ASFA to demobilize the concrete and asphalt batchplants within a shortperiod and without compensation; and depriving ASFA ofthe opportunity to supply the government andthirdparties with asphalt, rock and concrete 

### (id. at 2-3). ASFA asked TSgt Powell to reconsiderthe government's decision requiring ASFAto demobilize. ASFA told him thatwhileASFA would "certainly obey all orders" from the government, it would seek compensation for its losses ifthe governmentpersisted with removal ofthe asphalt plant and rock crusher. (Id. at 3)

33. Upon receiving ASFA's 17 November 2009 letter, TSgtPowell passed it on to Mr. Richard E. Early andtook no other action (R4, tab 55 (Powell dep.) at 79-80).

1434. Bymemorandum dated 20 November 2009, CO MSgtMarvin C. Frazier informed ASFA that he was authorizing the government to disassemble and remove the rock crusher and asphalt plant:

(R4, tab 15) 1. The purpose ofthis memorandum is to authorize the 557 ERRS to disassemble and relocate the Government Furnished Property (GFP) located on Joint Base Balad (northend area)
as provided to ASFA Group under a partnering agreement in 2007. All equipment associated with the respective rock crusher and asphalt plant is Government property and is hereby authorized [for] disassembly and relocation to the US. All efforts are deemed in the best interests ofthe US Government in support ofdrawdown efforts associated with Operation Iraqi Freedom.

35. On 27 November 2009, Maj Nemceff, CommanderRCC-Balad, issued a memorandum to the Real Property Management Office entitled "Notice ofTermination ofServices (ASFA Group)." The memorandum stated that "nopending contracts (construction and services) remain outstanding and underthe purview ofthe Regional Contracting Center for subjectvendor." The memorandum further stated that "any forthcoming warranty work associated with any construction contracts with subject vendor has been waived

...to facilitate action(s) required by the Real Property Management Office to notify subject vendorto vacate all land assignments and terminate all lease agreements with Joint Base Balad, Iraq." (R4, tab 16)

36. CO Frazierwrote ASFA on 30 November 2009 regarding its "Claim: Asphalt Batch Plant, Joint Base Balad," and stated that although the government had received ASFA's "claim for materials and equipmentpurchased in support of[the] subject requirement," the government was "unable to proceed with processing your claim" in accordance withFederal Acquisition Regulation (FAR) Part 33 and the Contract Disputes Act. He stated that the following were required before the government could evaluate ASFA's claim: the contract number; a total amount; a request for a final decision ofthe contracting officer; and ASFA's certification ofa claim exceeding $100,000. CO Frazier directed ASFAto provide this information no laterthan 10 December 2009. (R4, tab 17 at 1)

37. Email exchanges between the parties dated 10 December 2009 show that ASFA reminded the government that "no contract number was formally assigned to this award." ASFA told the government that its 17 November 2009 letterwas not a claim, but rather a "heads-up notification ofa future claim ifthe government intends to remove [the]

15asphalt plant." (R4, tab 17 at 2) The government declined to extend its stated deadline for ASFA's claim beyond 11December2009unless ASFAprovided the requested information (id. at 3-4).

38. On 5 December 2009, Col David F. Demartino, USAF, Commander 332d EMSG, provided ASFAwith a written "Notice to Leave Joint Base Balad." ASFAwas told that while the government "appreciate[d] the services your company provided to help improve the facilities and infrastructure at Joint Base Balad andthe 332d Air Expeditionary Wing," the base was "undergoing a responsible drawdown that positions the installation for transferto the government ofIraq." Drawdown activities included "a reduction ofthe overall contractorpresence," and as a "substantial decrease in new projects is anticipated

...now is the time for contractors to depart the installation as their existing contracts expire and their services are no longer needed." Col Demartino advised ASFAthat "[b]asedupon your company'spending contract expiration and our responsibility to reduce personnel" at Balad, the government asked that ASFA "make preparations to vacate the base within thirty days ofreceiving this notification." ASFA
was instructed to leave the work site "cleared and cleaned up in accordance with local real estatepolicies"; otherwise, any remaining items would "become government property" and expose ASFAto fines for failure to comply. (R4, tab 18)

39. By email dated 9 December 2009, ASFAprovided CO Frazierwith a proposed demobilization schedule, with demobilization activities starting 10 December 2009 and concluding 31 May 2010 (R4, tab 19). COFrazier forwarded the proposed schedule to Lt Col JohnE. Tryon, USAF, 332dECES (R4, tab 38 at 2). Lt Col Tryon emailed ASFA on 9 December2009 stating, "Thankyou for this information, but six months seems too long to simply dismantle a batchplant and clean up the camp areas
.... CE agrees to sponsor ASFA for a 60-day demobilizationperiod." (Id. at 1) On 10 December2009, ASFAreplied that it "has one ofthe most equipped camps in Anaconda" and that the "period of60 days will notbe sufficient for demobilization" (id.).

40. ASFAprepared a "Certified Claim for Equitable Adjustment" dated 8 March 2010 in response to the government's 30 November 2009 letter (R4, tab 21). ASFA categorized its request as one for an "Equitable Adjustment" or, in the alternative, seeking a "Termination for Convenience settlement" and sought $478,476.02 for work done to repairthe asphaltplant androck crusher (id. at 1-2). ASFA's "SUMMARYOF EVENTS" explained that the "US Government awarded a contract to ASFA

...to install and operate [an] existing GFE asphalt plant and rock crusher" (id. at 1). Afterthe government discovered that these items were missing significantparts and were not in working order, ASFA said it ''was requested to bringthese equipments operational" and told by the government that it "wouldbe issued a base-wide IDIQ asphalt contract." ASFA contendedthat, as a result ofits efforts, the "GFE Rock Crusherwas repaired in full and maintained operational," and that ASFA had also provided missing parts needed to make the asphalt plant operational. ASFA said that it had complied with the

16government's 20 November 20[09] direction to disassemble the rock crusher and asphalt plant. (Id. at 2) ASFA sought a contracting officer's final decision (id. at 3), and Caner Dokuzoglu, Deputy General Manager for ASFA, certified the claim (id. at 4). ASFA attached several enclosures including certain correspondence between the parties and supporting documentation for the claim (id. at 5-31).

41. ASFA appealed the deemed denial ofits claim by notice ofappeal dated 15 June 2010.

DECISION

The Parties'Positions

ASFA contends that the dispositive issue in this appeal turns on the existence ofan implied-in-fact contract for the repair ofthe government-owned asphalt plant and rock crusher (app. br. at 22). Appellant argues that it has met all the elements to establish such
an implied-in-fact contract. ASFA asserts that there was a mutuality ofintent between it and the government for ASFA to repair the inoperable government-owned asphalt plant and rock crusher. (Id. at 23) 

### It contends that the governmentwished to repair the asphalt plant and rock crusher, but lacked the financial resources to orderthe repairparts and complete the repair effort itself(id. at 20-21). ASFA maintains that it offered to repair the government-owned asphalt plant and rock crusher and to use them for the production ofasphalt at LSA Anaconda/Joint Base Balad (id. at 23). ASFA asserts that it provided consideration as demonstrated by its expenditure offunds for materials, repairparts, and labor as part ofthe repair effort (id. at 22-23). Appellant argues that the government accepted its offer as evidencedby the 10 December 2007 notice ofaward and notice to proceed and the government'spromise "to issue the Appellant an express contract for the production output [ofthe asphalt plant and rock crusher] when the repairs were completed," and that this acceptance was accomplished by an authorized contracting officer (id. at 23). ASFA notes that the governmentprovided it with technical expertise, through the field service representatives, to assist ASFA in determining the deficiencies with the government's inoperable equipment (app. br. at 21, 25).

ASFA argues that itpurchased materials and supplies from Turkey and the United States with knowledge and encouragement ofthe government. 

### It asserts that it performed repairwork onboth the asphalt plant and the rock crusher, but thatthe repair effort was incomplete when the government ordered the demobilization ofthe equipment. (App. br. at 25) ASFA contends that the government's position that ASFA was allowed to possess and alter government-owned equipment in the absence ofan agreement between ASFA and the government strains credulity (app. reply br. at 2-3). ASFA maintains that the governmentbenefitted from its repair efforts to the asphaltplant and the rock crusher and that it is entitled to compensation for that work (id. at 3).

17The government denies that an implied-in-fact contract between it and ASFA ever existed (gov'tbr. at 36). The government argues that there was no mutual intent to contract for the repair ofthe asphaltplant and rock crusher; rather, the parties understood that ASFA would use the government-owned equipment "as is" (id. at 38). The government contends thatASFA's deficient repair work evidences that ASFA "was attempting to convert this equipment [the asphalt plant and rock crusher] to its own use" and that ASFA "did not believe it was under any obligation to repair or maintain this equipment for the benefit ofthe government" (id. at 40-42). The government argues that ASFA's "beliefthat it was not under any contractual duty" is further evidenced by ASFA's "persist[ence] with its non-standard repairs after being told by [CO] Conde on 17 September 2008 that it did not have a contract with the government relating to the equipment" (id. at 42). The government further asserts that neither CO Tortorella's nor CO Pondo's communications evidence an intent to contract (id. at 43-45). The government argues that any alleged contract lacked sufficient definiteness to be enforceable (id. at 45-46). The government argues thatASFA has failed to establish offer and acceptance, and that the 10 December 2007 notice ofaward does not constitute acceptance ofany offer (id. at 46-48; gov'treply br. at 2-3). The government asserts that "(h]ad an actual agreementbeen reached between the parties under this scenario [where the appellant would repair the government's equipment using government provided repair parts], the government would have provided parts," and contends that the fact that "the government never provided any repairparts" demonstrates that no such agreement was reached (gov'tbr. at 48-49). The government argues that ASFA's expenditure offunds is insufficient to establish consideration and that no benefit was conferred upon the government 

### (id. at 39-40, 50-55). 

### Discussion
The Existence of an Enforceable Implied-in-Fact Contract

The parties vigorously debate whether a valid and enforceable contract exists between ASFA and the government for the repair ofthe asphalt plant and rock crusher. The Board'sjurisdictionunder the CDA is predicated upon an "express or implied contract" between a contractor and the government. 41 U.S.C. 

### § 7102(a). The term "implied contract" in the CDA refers only to implied-in-fact contracts; the Board has no jurisdiction with respect to contracts implied-in-law. 

### Beyley Constr. Grp. Corp., ASBCA No. 55692, 08-2 BCA 

### ,-i 33,999 at 168,141; 

### P&CPlacementServs., Inc., ASBCA No. 54124, 06-2 BCA 

### ,-i 33,373 at 165,446. We have found that, by 28 January 2008, the parties had reached an understanding by which ASFA would install government-purchased parts on the asphalt plant and rock crusher, and in return the government would allow ASFA use ofthe repaired equipment and award ASFA an asphalt BPA to provide ASFA an opportunity to recoup the costs ofmakingthe repairs (finding 14), and to compete for future work on the base (finding 11). In support ofthat effort, the government provided expertise, in the form ofthe field service representative, in identifying the parts missing from the rock crusher (findings 16, 20). The primary

18

### question before the Board is whether the parties' tacit agreement constitutes an enforceable implied-in-fact contract for repair ofthe government-owned asphalt plant and rock crusher. We hold that it does.

ASFA bears the burden ofproving the existence ofan implied-in-fact contract. Altanmia CommercialMktg. Co., 

### ASBCA No. 55393, 09-1 BCA**~** 

### 34,095 at 168,584. An 

### implied-in-fact contract is founded upon a meeting ofthe minds and '"is inferred, as a fact, from the conduct ofthe parties showing, in the light ofthe surrounding circumstances, their tacit understanding."' Kam-Almaz v. United States, 

### 682 F.3d 1364, 1368 (Fed. Cir. 2012) (quotingHanlin v. United States, 

### 316 F.3d 1325, 1328 (Fed. Cir. 2003)); see also PrudentialIns. Co. of Am. v. UnitedStates, 

### 801F.2d1295, 1297 (Fed. Cir. 1986) ("A contract implied in fact is not created or evidenced by explicit agreement ofthe parties, but is inferred as a matter ofreason orjustice from the acts or conduct ofthe parties."). The requirements for an implied-in-fact contract with the United States Government "are the same as for an express contract; only the nature ofthe evidence differs." Hanlin, 

### 316 F.3d at 1328; see also Trauma Serv. Grp. v. UnitedStates, 

### 104 F.3d 1321, 1325 (Fed. Cir. 1997). The elements ofproofto establish a valid contract with the government are: (1) mutuality ofintent to contract; (2) lack ofambiguity in offer and acceptance; (3) consideration; and (4) actual authority on the part ofthe government representative to bind the government in contract. Anderson v. United States, 

### 344 F.3d 1343, 1353 (Fed. Cir. 2003); City of El Centro v. UnitedStates, 

### 922 F.2d 816, 820 (Fed. Cir. 1990). In this appeal, the government does not dispute the authority ofits contracting officers to bind the government in contract (gov'tbr.,passim; 

### gov't reply br.,passim). 

### We note that a number ofcontracting officers were involved overthe
course ofevents, thereby contributing to a discontinuity ofthe government's knowledge and actions. Mutuality ofintent is essential to the formation ofa contract with the government. Walsh Constr. Co. of Ill., 

### ASBCA No. 52952, 02-2 BCA**~** 

### 32,024 at 158,279, aff'd, 

### 80 F. App'x 679 (Fed. Cir. 2003). To satisfy its burden to prove mutuality ofintent, ASFA must show, by objective evidence, the existence ofan offer and reciprocal acceptance. Anderson, 

### 344 F.3d at 1353; Yonir Technologies Inc., 

### ASBCA No. 56736, 10-1 BCA**~** 

### 34,417 at 169,897. We have found that ASFA offered to repairthe non-operational asphalt plant and rock crusher in exchange for use ofthe repaired equipment in future on-base asphalt competitions (finding 11), an unambiguous offer. Once an offer is made, for a contract to be formed there must be an acceptance ofthe offer. Anderson, 

### 344 F.3d at 1355. "It 

### is essential that 'acceptance ofthe offerbe manifested by conduct that indicates assent to the proposed bargain."' Northrop Grumman Sys. Corp. Space Sys. Div., 

### ASBCANo. 54774, 10-2 BCA**~** 

### 34,517 at 170,237 (quotingRussell Corp. v. UnitedStates, 

### 537 F.2d 474,482 (Ct. Cl. 1976)). We find such acceptance here. CO Pondotestified at his deposition, albeit reluctantly, that he "concurred" in ASFA's offerto repair the asphalt plant and rock crusher using government-providedparts. CO Pondo's acceptance is further manifested by his 28 January 2008 email to

19Mr. Fikirdanis, in which he states that the 20th Engineer Brigade would pay for parts for ASFA to install in the rock crusher and asphalt plant, followed by a transfer ofthe equipment to ASFA "as a solid piece ofusable equipment." (Finding 14) On the same day, CO Pondo sent an email to Mr. Schwartz describing Mr. Fikirdanis ofASFA as the contractor "whowill be repairing the [a]sphalt plant and rock crusher" (finding 15). Accordingly, the elements ofmutuality ofintent to contract, and offer and acceptance are met.
The relationship between the parties was not static, but evolved over time. The parties originally contemplated the government providing the necessary parts to repair the asphalt plant and rock crusher (findings 14, 17). While the governmentprovided a field service representative to inspect the rock crusher and develop a parts list (finding 20), the responsibility to purchase the repairparts ultimately shifted to ASFA (findings 21-22, 24). Asrelayed by ASFA to CO Conde in its 12 September 2008 letter, the government determined that it would take too long for it to provide the repairparts and that "itwould be easier" for ASFA to do so (finding 24). ASFA's account is supported by CO Tortorella's 16 June 2008 and 7 July 2008 emails, asking ASFAto provide a cost estimate to "replacethe parts on the asphaltplant" and inquiring whetherASFA was going to purchase parts for the rock crusher (findings 21-22). Although CO Tortorella denied directing ASFA to purchase parts for the asphaltplant (finding 21), neither CO Tortorella nor CO Conde removed the asphalt orrock crushing equipment from ASFA's control orotherwise directed ASFA to cease its repair effort. The government manifested its assent to appellant's position thatASFA was to purchase the parts necessary to complete the repair effortby allowing the company to continue possessing the asphaltplant and rock crusherknowing, particularly after ASFA's 12 September 2008 letterto CO Conde, that ASFA was purchasing parts to complete the repairs ofthis equipment. The record indicates that ASFA did not begin to dismantle the asphalt plant and rock crusheruntil afterNovember 2009 

### (see, e.g., findings 39-40). Additionally, the parties' agreement is supported by consideration. To be valid and enforceable, a contract must be supported by consideration to ensure mutuality of obligation. 

### Gardiner, Kamya & 

### Assocs., P.C. v. 

### Jackson, 369 F.3d 1318, 1322 (Fed. Cir. 2004);

### Ace-FederalReporters, Inc. v. 

### Barram, 226 F.3d 1329, 1332 (Fed. Cir. 2000). ASFA provided considerationby agreeing to install the government-purchasedparts and undertake the actual repair effort, a role which expanded over time to include providing parts with government knowledge.4 In addition to providing expert guidance and parts to assist ASFA in the repair effort, the government promised to provide the repaired equipment to ASFA to use in competing for future on-base asphalt requirements, which

4 The government, relying on SFC Miller's deposition testimony, contends that the allegedly poor nature ofthe repairs made by ASFA demonstrate a lack of consideration (gov'tbr. at 52-53). The government's argument conflates consideration with adequacy ofperformance.

20the parties anticipated would be accomplished through an asphalt BPA, in return for ASFA's repair work (finding 14). We are cognizant that, generally, BPAs are themselves not contracts, until an order is placed, due to lack ofconsideration. See Production Packaging, ASBCA No. 53662, 03-2 BCAif 32,338 at 159,972;Julian Freeman, ASBCA No. 46675, 94-3 BCAif 27,280 at 135,906-07. The Federal Circuit has characterized BP As as "reflect[ing] illusory promises that do not impose obligations on eitherparty." Crewzers Fire Crew Transport., Inc. v. UnitedStates, 741F.3d1380, 1382-83 (Fed. Cir. 2014). Accordingly, we are skeptical that the promise ofa BPA would, in itself, provide consideration to support a valid contract. We are also not required in this appeal, to discuss whether a promise by a contracting officer to award a BPA, or even a future contract, would contravene regulations or statutes such that the promise could not be considered valid consideration. However, the government did not simply offerto award ASFA a single asphalt BPA; the government agreed to allow ASFA to use the restored asphalt plant and rock crusher in competing for future asphalt procurements in exchange for effectuating repair ofthe government-owned equipment. CO Pondo's 31 January 2008 email to Mr. Schwartz indicates that the parties anticipated that this arrangement would provide ASFA with a pricing advantage (see finding 17). The government's encouragementto use the repaired equipment for anticipated procurements thus had substantial business value and provided consideration, particularly where the government was restricting base access to vendors (finding 1). See Ace-Federal, 226 F.3d at 1332 (government's promise to limit competition to schedule contractors provided consideration for Federal Supply Schedule contract); Total Med. Mgmt., Inc. v. UnitedStates, 104 F.3d 1314, 1320 (Fed. Cir. 1997) (government's promise to provide support staffand free space in a hospital sufficient consideration for contractor's promise to provide discounted health care services); see also Enrique (Hank) Hernandez, ASBCA No. 53011, 01-1BCAif31,220 at 154,103 ("The mutuality of consideration was the Government's obligation in consenting to appellant's performance ofbagging services to furnish space for appellant's operations and encourage patrons to tip or, at a minimum, notify patrons that baggers work only for tips.").

The government contends that the parties' agreement is insufficiently definite to be enforceable. A contract is unenforceable unless it is sufficiently definite so as to provide a basis for determining the existence ofa breach and formulating an appropriate remedy. Crewzers, 741 F.3d at 1382;Aviation ContractorEmployees, Inc. v. United States, 945 F.2d 1568, 1572 (Fed. Cir. 1991). The government argues that "there are no clearly defined terms-no agreement over whatrepairs were to be performed; no agreement overwhat standards ofrepairs would be expected; no agreement over how the government would inspect the equipment

...; and no agreement over what date the repairs would be completed by" (gov'tbr. at 45-46). With regard to the government's first two objections, we find the parties' agreement sufficiently definite; under the repair effort initially contemplated by the parties, ASFA'sprimary task was to install parts, purchased by the government, necessary to make the asphaltplant and rock crusher operational. The government, through the field service representative, was to provide the list ofthe

21specific parts required. That the relationship between the parties evolved and ASFA took
on a greaterrole does not defeat the definiteness ofthe parties' agreement. Respecting the government's latter two objections, we do not view the lack ofinspection and time terms as rendering the parties' agreement insufficiently definite or ambiguous. Rather, the lack ofthese terms is governed by the Restatement, which provides that "[ w]hen the parties to a bargain sufficiently defined to be a contract have not agreed with respect to a term which is essential to a determination oftheirrights and duties, a term which is reasonable in the circumstances is supplied by the court." RESTATEMENT (SECOND) OF CONTRACTS§ 204 (1981). The government also argues that there was no contract because CO Pondo's 31 January 2008 email to Mr. Schwartz demonstrates a mutual understanding that future negotiations would occurregarding ASFA's price for asphalt (gov't br. at 44-45). However, it is well settled that "an indefinite price term will not destroy the underlying mutuality ofobligation when a contract indicates a clear intention by both parties to be bound." 

### Gardiner, 369 F.3d at 1322.

The government's remaining arguments for finding that there is no enforceable contract are unpersuasive. The government first relies on Mr. Schwartz's 31 January 2008 email in arguing that there was no intent to contract (gov'tbr. at 44). The government's reliance is misplaced. Mr. Schwartz's 31 January 2008 email was in response to CO Pondo's 31January2008 email (finding 18), in which CO Pondo explained the terms ofthe parties' agreement to Mr. Schwartz (finding 17). The government fails to explain how Mr. Schwartz, a non-contracting official, could override the intent ofa contracting officer. The government also relies on CO Tortorella's 7 July 2008 email inquiring whetherASFA was planning on purchasing parts for the rock crusher and CO Conde's 17 September 2008 email stating that there was no contract (gov't br. at 42-43). The government's subsequentrepudiation ofits obligations, however, does not negate the existence ofan enforceable contract. Lastly, relying on ASFA's 21 January 2008 email, the government suggests that any agreement was simply to allow ASFA use ofthe asphaltplant and rock crusher "as is" (gov'tbr. at 38). Butthe government agreed that ASFA should restore the equipmentto working order and facilitated that effort. We find nothing inconsistent between ASFA's desire to take custody ofequipment "as is," expressed in the 21 January 2008 email (finding 13), particularly at a time when the government believedthe equipment to be in better shape than it turned outto be (finding 10), and the parties' agreement for the repair ofthe asphaltplant and rock crusher in exchange for ASFA's use ofthe repaired equipment. The contracting officers were actively involved in encouraging and enabling ASFA to repair the government's equipment: the government cannot claim to have been a mere bystanderto ASFA's efforts.



### The AllegedConstructive Termination of the Implied-in-Fact Contract Having determined that the parties entered into an implied-in-fact contract for the repair ofthe asphalt plant and rock crusher, we must decide whether ASFA is entitled to

22recover on its claim. ASFA's 8 March 2010 claim seeks $478,476.02 for its efforts to repair the asphalt plant and rock crusher as either an equitable adjustment or in the nature ofa termination for convenience settlement (finding 40). Under the Christian Doctrine,
we incorporate the standard termination for convenience clause, FAR 52.249-2, TERMINATION FOR CONVENIENCE OF THE GOVERNMENT (FIXED-PRICE) (MAy 2004), into the parties' implied-in-fact repair contract. G.L. Christian & Assocs. v. UnitedStates, 312 F.2d 418, 426 (Ct. Cl. 1963); Vee-Tor, Inc., ASBCANos. 25807, 26128, 84-1 BCA

### if 17,145 at 85,439-40 (incorporating termination for convenience clause into an implied-in-fact contractpursuant to the Christian Doctrine), recon. denied, 85-1 BCA 

### if 17,755; accordAdvancedTeam Concepts, Inc. v. UnitedStates, 68 Fed. Cl. 147, 152 (2005) ("As with any government contract, express or implied, the government enjoys the ability to terminate a contract for its convenience, absent bad faith on the part ofthe government."). FAR52.249-2(a) provides that the government "mayterminate performance ofwork under this contract.

..ifthe Contracting Officer determines that a termination is in the Government's interest."

Underthe parties' implied-in-fact contract, the government was to purchase parts necessary for the repair effort for both the asphalt plant and the rock crusher, which ASFA was to install (finding 14). ByJuly 2008, the government no longer intended to provideparts for either the asphaltplant orrock crusher and shifted that responsibility to ASFA (findings 21, 22). Prior to the completion ofthe repair effort, the government began considering demobilizing the asphalt plant and rock crusher in August 2009 (finding 28). In a 20 November 2009 memorandum to ASFA, CO Frazier stated that he
was authorizing the disassembly ofthe equipment for relocation to the United States, which he deemed to be "inthe best interests ofthe US Government in support of drawdown efforts associated with Operation Iraqi Freedom" (finding 34). Col Demartino's 5 December 2009 notice to ASFA also explained thatASFA was to leave Joint Base Balad as part ofthe government's drawdown ofthe base (finding 38). These communications constructively terminated the implied-in-fact repair contract for the government's convenience as part ofits drawdown ofJoint Base Balad. Accordingly, ASFA is entitled to a termination for convenience settlement as provided in FAR 52.249-2.

23CONCLUSION

The government constructively terminated for its convenience an implied-in-fact contractwith ASFA for the repair ofan asphalt plant and rock crusher. The appeal is sustained. We remand the appeal to the parties for processing ofany termination for convenience settlement proposal pursuant to FAR 52.249-2 that ASFA may submit to the contracting officer.

Dated: 8 July 2015

I concur

# ~~~ Administrative Judge Acting Chairman Armed Services Board ofContractAppeals REBA PAGE Administrative Judge Armed Services Board ofContract Appeals

RICHARD SHACKLEFORD 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 ofContract Appeals in ASBCA No. 57269, Appeal ofASFA Construction Industry and Trade, Inc., rendered in conformance with the Board's Charter.

Dated:

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