ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE D’ALESSANDRIS 

 Appellant, Afghan Azimi Group of Supply Construction and Technical, Inc. 

(ASCT), was a subcontractor to Advance Constructors International, LLC (ACI) on 

ACI’s prime contract with respondent, the U.S. Army Corps of Engineers (USACE or 

government), for construction of the Kandahar Regional Police Training Center, in 

Kandahar Province, Afghanistan. In February 2013, the USACE terminated ACI for 

default, due in part to its failure to pay ASCT and other subcontractors. When the 

USACE terminated ACI for default, it planned to retain another contractor to complete 

the project, and anticipated giving preference to a contactor that would employ ACI’s 

subcontractors. Accordingly, the USACE held an informational meeting with ACI’s 

subcontractors and subsequently sent an email “requesting” that subcontractors not 

remove from the job site their material that had not been paid for by ACI. The email 

stated that the government has “procedures that it can use to pay” for the material. ACI 

indicated its desire to sell its materials to the government, and followed-up with the 

USACE multiple times. In November 2013, the project was cancelled and the site was 

returned to the Government of Afghanistan. 

 ACI challenged the USACE’s termination decision before the Board. In 2015, 

the parties worked-out an unusual settlement where the USACE converted the 

termination for default into a no-cost termination for convenience, and used the unpaid 

contract balance to fund an escrow account to reimburse ACI’s subcontractors for a 

portion of their unpaid invoices. In 2016, ASCT sued ACI in Delaware State Court 

Appeal of - )

)

ASCT Group, Inc. ) ASBCA No. 61955

)

Under Contract No. 000000-00-0-0000 )

APPEARANCE FOR THE APPELLANT: David J. Muchow, Esq.

 Muchow Law

 Arlington, VA

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.

 Engineer Chief Trial Attorney

James D. Stephens, Esq.

Rebecca L. Bockmann, Esq.

 Engineer Trial Attorneys

 U.S. Army Engineer District, Middle East

Winchester, VA
2 

seeking $2.8 million. ASCT obtained a judgment against ACI but ultimately settled the 

dispute for a $430,000 payment from ACI, that was reimbursed by the escrow account. 

ASCT’s settlement with ACI contains a carveout purporting to exempt from the release 

ASCT’s claims against the USACE. 

 In 2018, ASCT filed a claim with the USACE asserting entitlement of 

$1,898,835.40 for its material, security and warehousing expenses, construction 

equipment, and attorney fees. ASCT asserted that the contracting officer’s oral 

statements in the meeting, and the email requesting that subcontractors not remove their 

material, were an offer by the government to purchase ASCT’s material and equipment, 

and that ASCT accepted the offer by performance, creating an implied-in-fact contract. 

The contracting officer awarded ASCT $78,936 based on a finding that an implied-in-fact 

contract “might be interpreted to exist,” but that the scope of the implied-in-fact contract 

was only for storage of material from the February 2013 email until November 2013 

when the project was cancelled. We review the appeal de novo and hold that ASCT has 

not demonstrated the existence of an implied-in-fact contract, and deny the appeal. 

FINDINGS OF FACT 

A. The Contract and Subcontract 

 On March 31, 2011, the government entered into Contract No. W5J9LE-11-C-0020 

with ACI, for the construction of a regional police training facility in Kandahar Province, 

Afghanistan (R4, tab 30 at 2). Notably, the contract waived the bonding requirements 

normally contained in government construction projects (tr. 207-08).1

 The waiver was in 

response to contractors experiencing difficulty in obtaining bonding for contracts being 

performed in a war zone (id. at 208). The policy permitting waiver of the bonding 

requirements has since been revoked (id.). However, absent a payment bond, there was 

not a surety to step-in and pay the subcontractors in the event, as was the case here, that 

the prime contractor failed to pay its subcontractors. 

 On or about January 8, 2012, ACI entered into a subcontract agreement with 

ASCT, a small family-owned business (R4, tab 4, tr. 19). Pursuant to the subcontract, 

ASCT would be paid $5,322,065 for construction of the project’s dining facility 

(DFAC), the DFAC’s dry storage, four classroom facilities, and a latrine facility (R4, 

tab 4 at 1-2). ACI was to pay ASCT according to an approved schedule of values (id.; 

tr. 91-92), with ASCT required to submit a schedule of values with its requests for 

payment (R4, tab 4 at 6). ACI paid ASCT $2,607,848 prior to the project’s termination, 

leaving a remaining balance of $2,714,217 on the subcontract (R4, tab 44 at 1). ASCT

 

1 See Assist Consultants, Inc., ASBCA Nos. 61525, 62090, 21-1 BCA ¶ 37,850 for an 

example of an Afghan contractor being unable to meet the bonding 

requirements. 
3

purchased all the materials and equipment at issue in this litigation as a part of its 

performance under the subcontract (tr. 117).

B. USACE’s Termination of ACI for Default

In late 2012, ACI’s subcontractors notified the government that ACI was not 

paying them (R4, tab 30 at 2; tr. 154-55). ASCT alleges that ACI stopped paying it in 

October of 2012 (tr. 38, 92, 154-55). ASCT stopped performing on the project on 

December 17, 2012 (tr. 38-39, 172-73). In the weeks that followed, the USACE

investigated the allegations of ACI’s subcontractors, and took action after concluding 

that ACI was not paying its subcontractors (tr. 155-58). The government began to 

withhold retainage from ACI on the contract both due to ACI’s failure to make progress 

on the project, and because it believed ACI had made misrepresentations on its progress 

payment certifications relating to subcontractor payments (id.; R4, tab 30 at 1, 3, 

6-7; and FAR 52.232-27, Prompt Payment for Construction Contracts (JAN 2017)). 

In particular, the government rejected ACI Pay Request No. 22 outright “due to 

concerns regarding payment to subcontractors” (R4, tab 30 at 7; tr. 155-57). In total, 

the government withheld $2,506,615.09 from ACI’s progress payments over this issue 

(R4, tab 31 at 1). The government decided to terminate ACI for default in part due to 

its failure to pay its subcontractors on the contract (R4, tab 30 at 8-10; tr. 158-64).

On February 14, 2013, the government held an informational meeting for ACI’s 

subcontractors at a government construction office (tr. 188, 191-94). The government 

notified the project’s subcontractors of its intention to terminate ACI, informed the 

subcontractors of the next steps in the reprocurement process, and inquired whether 

the subcontractors were interested in working for the replacement contractor, or in 

selling their materials (tr. 90-91, 185-89). Additionally, the government instructed 

ASCT not to deliver any more materials to the project site (tr. 91). 

ASCT’s Vice President, Mr. Abdul Azimi, testified that, at the February 14, 

2013 meeting, Mr. Boddie, the contracting officer, “promised that [the USACE] had 

procedures that they will [use to] pay for the materials directly” (tr. 48). ASCT 

additionally submitted affidavits from three other individuals who attended the 

February 14, 2013 meeting, each with similar wording, and each dated February 25, 

2021, more than eight years after the meeting. Mr. R. Mohammad, the CEO of Bilal 

Adil Construction Co., another subcontractor to ACI on the project, stated that 

Mr. Boddie “clearly promised the subcontractors attending, that there was a process 

from USACE for recovery of funds expended by the subcontractors to date for 

materials and equipment that were purchased for the subject contract; and for 

continuing to provide security, and that we would be paid for all the project related 

expenses incurred” (R4, tab 50 at 1-2). Mr. Ismat Ullah Samadee, the former President 

of Sadiq Noor Construction Company, another subcontractor to ACI on the project, 

states that Mr. Boddie “promised, in no uncertain terms, that there was a process for 
4

recovery of funds expended by the subcontractors to date for materials and equipment; 

and for continuing to provide security, and that we would be paid for all of that” (R4, 

tab 51 at 1-2). Mr. Mohammad Azimi, a partner in ASCT and the project manager, 

stated that Mr. Boddie “clearly promised that there was a process for recovery directly 

from USACE for the costs incurred by the subcontractors for materials and equipment 

procured for the subject contract; and for continuing to provide security” (R4, tab 52

at 1-2).

Conversely, Mr. Boddie testified that, at the meeting, he stated “that there was a 

process where the Government could buy the material . . . [a]nd use it, especially the 

long lead items and such that were onsite . . . [and] hand that over to a new contractor as 

Government furnished material” (tr. 188-89). Mr. Boddie further explained that his 

statements at the meeting were an “explanation of potential of what we could do” 

(tr. 195).

There is no transcription or recording of the meeting in the record. Mr. Azimi 

testified that he and the other subcontractors were not permitted to bring any 

electronics through security, but that they were informed that the meeting was being 

recorded (tr. 45-47). Mr. Boddie testified that electronics would have been collected 

as a security measure and that he was aware that there was supposed to be a recording 

of the meeting, but that it was not done at his request (tr. 227-28). 

On February 17, 2013, ASCT sent copies of its unpaid invoices to the government 

by email2 (R4, tab 19 at 1). On February 19, 2013, the government terminated ACI for 

default (R4, tab 30 at 1). In its termination decision, the government instructed ACI to 

“[s]top all work, make no further shipments, and place no further orders,” except for 

authorized work-in-progress or materials it wanted for itself (id. at 10-11). ACI appealed 

the government’s termination for default decision to the ASBCA in No. 58604 (R4, 

tab 31 at 1; tr. 166). At the time of the termination, ASCT claimed ACI owed it 

$1,246,570.09 for its October, November, and December 2012 invoices (R4, tab 26 at 1; 

tr. 92).

C. Post-Termination Communication with ACI’s Subcontractors

On February 25, 2013, the government sent an email to ACI’s subcontractors, 

including ASCT, that summarized the information provided at the February 14, 2013 

meeting (R4, tab 8; tr. 194-96). The email stated in relevant part:

USACE has now begun the process of selecting a new 

prime contractor to complete the RPTC 

 2 Although the invoices are not included with the email at R4, tab 19, the invoices are 

in the record at R4, tab 45 (tr. 221)
5

project. . . . When USACE selects the new prime 

contractor, it will give preference to potential prime 

contractors that promise to award subcontracts to the 

companies that formerly had subcontracts under ACI. . . .

In the meantime, USACE wants to be sure that activity 

continues at the construction site during the time it takes to 

choose the new prime contractor. USACE has decided to 

work with one of ACI’s former subcontractors, Areyana 

Group, to have it be the prime contractor for a limited 

amount of work over the next 3 months. . . . The details of 

that short-term contract will be announced to this group as 

soon as it is finalized. . . .

Regarding your own company’s materials that are on site but 

were never paid for by ACI, we request that you do not 

remove them. As I explained in our meeting on 14 February, 

USACE has procedures that it can use to pay you for those 

materials so that they can be used to finish building the 

project. Please contact me if you are interested in selling 

those materials to USACE.

(R4, tab 8 at 1-2). Mr. Azimi testified that the email was consistent with the oral 

statements at the February 14, 2013 meeting (tr. 49-50, 95-96) and Mr. Boddie 

similarly confirmed that the email was consistent with his statements at the meeting 

(tr. 195-96). 

Based on the record before us, we find that Mr. Boddie’s statements at the 

February 14, 2013 meeting are consistent with the February 25, 2013 email summary 

of the meeting, and find that Mr. Boddie’s statements, did not constitute an offer to 

purchase ASCT’s material or equipment, or to compensate ASCT for its storage 

expenses. ASCT’s witness testimony at the hearing, and declarations, are not 

consistent with the contemporaneous email summary.

On March 14, 2013, ASCT responded to the contracting officer, stating “as we 

owe most of the suppliers now for the procured materials, it would be of our mutual 

benefit to sell you our procured materials for your future plans. And it would be our

pleasure to know how long will it take for the process, and what you would require us 

to send you” (R4, tab 9 at 3). The government responded that same day indicating that 

its Local National Quality Assurance (LNQA) representatives would inventory the 

property (R4, tab 9 at 3). On March 20, 2013, after an exchange of emails concerning 

the nature of the materials and questions from ASCT about how long the process would 

take, a government representative informed Mr. Abdul Mateen Azimi, ASCT’s 
6

Vice-President, that he did not “know how long the process will take,” that it was “for 

the contracting officer to take action on,” and that the government would “eventually 

(I think) process the stored materials for payment but the Contracting Officer is running 

the show.” (id. at 2). On March 25, 2013, ASCT sent an email to the government 

contracting officer, Mr. Edward Boddie, stating:

As was requested from your side by email, and agreed in 

the meeting, it was stated that the procured material for this 

project that are not billed to ACI will be paid by USACE.

The lists were sent to your attention for the material we 

had procured for our project, that are not billed to ACI.

But neither a positive nor negative response have been 

clarified from your side for the procurements payment and 

processing.

So please let us know, if these materials will be procured 

by USACE and paid to us or not?

(id at 1). There is no record of the government contracting officer ever replying to this 

email. ASCT’s own witness testified that ASCT understood there were additional 

steps in the process toward reaching an agreement relating to the material (tr. 106-11).

On June 19, 2013, the District Engineer of the Afghanistan Engineer District- South, 

COL Vincent V. Quarles, furnished a copy of a letter to ASCT, in which he explained to 

another ACI subcontractor that, although he understood the passage of time relating to the 

progress of reprocuring the project was financially problematic, “the needs of the end-user 

of the facility have been changing as the conditions on the ground change” (R4, tab 10

at 2). On June 26, 2013, the government contracting officer provided a presentation to the 

former ACI subcontractors, in which he stated:

A. The needs of the Afghan National Police have changed. 

As a result, the ANP now needs fewer buildings of each 

type.

B. Because of these changes, USACE will be re-starting 

the selection of a new prime contractor for the RPTC 

project.

***
7

2. The old RFP has been canceled, and a new RFP 

will be issued. 

***

A. As explained during the February meeting, there is an 

opportunity for the subcontractors to have the materials 

they purchased for the original contract be used in the 

new contract.

B. To take advantage of the opportunity, former ACI 

subcontractors must provide the contracting officer 

with documentation that proves that materials were 

purchased for the ACI prime contract, and not paid for 

by ACI.

1. USACE needs copies of invoices. 

2. If materials are still on site, USACE also needs 

photographs showing the quantity of materials 

and their current location.

C. If a former ACI subcontractor wants to remove the 

company’s materials from the RPTC site, the company 

has to provide acceptable proof of ownership, and then

USACE will make arrangements to give the company 

access to the site to remove the materials.

(R4, tab 11 at 1). ASCT understood that if it wanted to remove its materials from the 

project it was free to do so as long as it could prove its ownership to the materials 

(tr. 111-13).

On July 15, 2013, ASCT sent an email to the contracting officer, referencing 

prior contact between the parties, providing a spreadsheet detailing $907,612.51 in 

procured materials3 (R4, tab 12 at 2, 4-5). At no point did the government’s contracting 

officer believe that he made an offer to purchase materials from ACI’s subcontractors 

(tr. 174-75). On November 23, 2013, the contracting officer sent a letter to one of 

ACI’s subcontractors informing the company that the government had cancelled the 

solicitation relating to the project’s reprocurement, that the requirement was also 

cancelled, and would no longer be executed by the USACE (R4, tab 13 at 3). ASCT

 3 Once again, the document at Rule 4, tab 12 does not contain any attachments; 

however, the attachments are located at Rule 4, tabs 20-24.
8

received this letter on November 27, 2013 (id., at 1). ASCT sent an email to Navy 

Commander Keith Jensen on November 28, 2013, acknowledging the reprocurement’s 

cancellation, and asserting that it had not removed its materials, and had incurred 

security and warehousing expenses based on the government’s promise to procure the 

materials (R4, tab 14 at 3-4). Commander Jensen responded on December 1, 2013, by 

referring ASCT to the Government of Afghanistan (id. at 2). ASCT contacted 

Commander Jensen on December 5, 2013, and on December 14, 2013, again asserting a 

USACE promise to procure ASCT’s materials (id. at 1-2). Since taking control of the 

construction site, the Government of Afghanistan has not permitted ASCT to remove its

materials from the site (tr. 62).

In a May 18, 2014 email, ASCT’s then counsel, Sher Saeedi, contacted 

Lieutenant Colonel Gary Davis, the District Chief of Contacting, seeking to “resolve 

this issue in an amicable way” (R4, tab 16 at 4). Mr. Saeedi’s email asserted that 

ASCT had been “left in a limbo by USACE with assurances of purchase of the goods 

at the site” (id.). That same day, LTC Davis, informed ASCT that an agreement to pay 

it for materials or material storage was “not allowed,” because the government was not 

in a contract with ASCT (id. at 3). In a May 27, 2014 email, Mr. Saeedi asserted that 

ASCT had decided not to remove its materials, and had incurred additional security 

costs, based on USACE’s assurances (id. at 2). Mr. Saeedi again contacted LTC Davis

on June 9, 2014, stating that he had not heard back from the government and 

requesting a response (id. at 1). 

D. ACI’s Appeal of the USACE Termination for Default

Mr. Edward Boddie, the contracting officer involved in the decision to terminate 

ACI for default and ultimately to settle ASBCA No. 58604, testified that he only settled 

the appeal to ensure that the progress payments withheld by the USACE could be used 

to compensate subcontractors unpaid by ACI (tr. 168-69). The government used the 

full amount of the termination litigation settlement ($2,206,615.09) to fund a trust 

account that was used exclusively to ensure ACI reimbursed its subcontractors, 

including ASCT, less certain legal and administrative fees it had incurred during the 

litigation (tr. 169-71; R4, tab 31 at 2-4). Mr. Boddie did not wish to pay ACI directly, 

out of an abundance of concern regarding ACI’s prior nonpayment issues (tr. 168-69). 

In exchange for this arrangement, ACI and the government agreed to a no-cost 

termination for convenience (tr. 171-72). ACI received no direct compensation from 

the settlement-established trust account, only reimbursement after it paid other parties 

(tr. 170-71). 

E. ASCT Brings Suit Against ACI in Delaware State Court

ASCT asserts that its remaining balance on the subcontract was $2,714,217 

(R4, tab 44 at 1). Due to ACI’s default on the contract ASCT never completed the 
9

subcontract, and at the time of the termination ASCT asserted that it was owed 

$1,246,570.09 by ACI (R4, tab 26 at 1; tr. 92). In 2016, ASCT sued ACI in Delaware 

Superior Court for $2,838,360.52, and obtained a judgment in the amount of 

$2,838,610.52 (R4, tab 27 at 1). ASCT entered into a settlement with ACI regarding 

this litigation, and obtained $430,000 from ACI, an amount financed by the trust 

account created by the government’s settlement agreement with ACI relating to their 

default termination litigation (R4, tab 6 at 1-2; tr. 70, 169-71; R4, tab 31 at 2-4). As a 

part of its resolution of its litigation with ACI, ASCT executed a release of claims 

discharging its right to pursue ACI further under the subcontract (R4, tab 6 at 1). 

However, the release included a purported carve-out for ASCT’s potential claim 

against the USACE, authorizing ASCT to pursue “any equitable adjustment claim(s), 

as well as any claim(s) based on quantum meruit, estoppel or other legal theories . . . in 

connection with, materials purchased by ASCT in connection with the RPT Project or 

their diminution in value, as well as related storage, security and other costs and 

expenses” (id.).

F. ASCT Offers to Sell Materials to Government and then Files a 

Claim

On April 10, 2017, ASCT’s prior legal counsel, David Felice, sent an email to 

the government, stating that “I am writing to gauge the Corps’ interest in purchasing 

the materials ASCT maintains on the project site and to reimburse ASCT for expenses 

related to maintaining and securing the materials for the past several years” (R4, tab 32

at 1). On June 8, 2017, Mr. Felice again contacted the government, writing “[m]y 

client would like to know if the USACE intends to negotiate a resolution to this matter 

or not” (R4, tab 17 at 1). The government did not express any interest in purchasing 

the materials or reimbursing ASCT for expenses (tr. 75-76). 

On June 27, 2018, ASCT filed a certified claim seeking $1,898,835.40, 

comprised of $886,890.09 for materials; $463,329.45 for security and warehousing 

expenses; $200,130 for accommodations and a camping facility; $277,064.24 for 

construction equipment; and $71,421.62 for attorney’s fees (R4, tab 3 at 12).

4 ASCT’s 

claim asserts that the USACE’s request that ASCT not remove its materials created an 

implied-in-fact contract whereby the government would directly compensate ASCT for

its materials and, since the government never rescinded these instructions, ASCT was 

also entitled to be compensated for its storage costs to present (id. at 11). The USACE 

 4 ASCT’s claim asserts that it is based on implied-in-fact contracts with the USACE 

(R4, tab 3 at 7). However, ASCT asserts that there are other legal bases which 

may apply, including a unilateral contract, “quantum meruit . . ., quantum

valebant . . . unjust enrichment, promissory estoppel, implied-in-law contracts, 

conversion, and taking of property without just compensation under the Fifth 

Amendment” (id. at 9-10). 
10

contracting officer issued her final decision on October 31, 2018, finding partial merit 

in ASCT’s claim (R4, tab 2 at 1-2). The contracting officer found no evidence that the 

government had expressed an interest in purchasing ASCT’s equipment, labor camp, or 

materials warehoused in Kabul and in Pakistan (id. at 7-8). In addition, the contracting 

officer found that the parties had not reached a meeting of the minds regarding a 

transaction with government paying ASCT for its materials (id.). However, the 

contracting officer found that “an agreement might be interpreted to exist” whereby the 

government, in essence told ASCT to “keep your property already at the Project, since 

the Government might need it, and in exchange the Government will pay you for the 

costs incurred in keeping the material safe” (id. at 8). The contracting officer found that 

this was an implied-in-fact contract that ended on November 28, 2013, when ASCT 

learned that the government had cancelled the reprocurement, and awarded ASCT 

$78,936, conditioned on ASCT submitting a proper invoice for the verified costs (id. 

at 11). ASCT timely appealed to the Board (notice of docketing Feb. 1, 2018). 

ASCT’s complaint, dated March 4, 2019, asserts five counts, but an implied-in-fact 

contract is the only legal theory properly developed.

5

 Count IV of ASCT’s complaint, 

“Discussion of ASCT’s Claim” asserts that there was a Fifth Amendment taking of 

ASCT’s property, and that the government was negligent in failing to properly 

investigate and supervise ACI, causing ASCT’s losses (compl. at 35).

In this appeal, ASCT asserts that it is entitled to the same amounts as contained in 

its claim, plus an additional $54,612.39 in warehouse and security fees (compl. at 36). 

ASCT estimates that $366,088.23 in material and all of its equipment was on the project 

site, with the remainder of material ($520,801.86) located either in Kabul, Afghanistan 

or in Pakistan (R4, tab 21 at 3). ASCT assumed that the government wanted its off-site 

materials (which it warehoused), its equipment, and its camp facilities (tr. 48, 100-04, 

123-24, 126). 

After ASCT filed its complaint, the government filed a motion to dismiss. The 

Board denied the motion to dismiss on February 27, 2020. ASCT Group, Inc., ASBCA 

No. 61955, 20-1 BCA ¶ 37,540. In our earlier decision, the Board noted that both 

 5 Rather than presenting legal theories, the “counts” in ASCT’s complaint mostly 

present argument regarding the proper calculation of its claimed damages. 

Count I of the complaint is “The Amount Already Offered in the Final Decision 

for Costs of Security and Staffing Should be Increased to Reflect the Actual 

Costs” (compl. at 15). Count II of the complaint is “All of the Amounts 

Claimed Should be Paid. The Following are Point-by-Point Answers to the 

Final Decision’s Denial of Appellant’s Claims” (id. at 17). Count III of the 

complaint is “Appellant is Clearly Entitled to Recovery Under the Implied-inFact Contract Doctrine” (id. at 25). Count IV of the complaint is “Discussion 

of ASCT’s Claim” (id. at 32). Count V of the complaint is “Details of the 

Claimed Compensation” (id. at 35). 
11 

parties “agree that the Board does not have jurisdiction over claims sounding in tort 

independent of a contract, and does not have jurisdiction of Fifth Amendment taking 

claims” and that ASCT had confirmed that it was only asserting a contractual cause of 

action. Id. at 182,289. 

DECISION 

 ASCT asserts that it is entitled to recover based on the existence of an impliedin-fact contract between the USACE and ASCT created by the contracting officer’s 

statements at the February 14, 2013 meeting. The government disputes the existence 

of an implied-in-fact contract and additionally asserts that an implied-in-fact contract 

is precluded by the existence of an express contract between ACI and ASCT for the 

same materials, and, even if there were an implied-in-fact contract, the off-site 

materials, and camp facilities were not part of the contract. 

I. Implied-In-Fact Contracts

 The Board possesses jurisdiction to entertain implied-in-fact contracts. In order 

to establish the existence of an implied-in-fact contract with the United States, ASCT

must establish the same elements as for a written contract: (1) mutuality of intent to 

contract; (2) consideration; (3) unambiguous offer and acceptance; and (4) actual 

authority on the part of the government representative whose conduct is relied upon. 

See, e.g., City of El Centro v. United States, 922 F.2d 816, 820 (Fed. Cir. 1990). Like an 

express contract, an implied-in-fact contract must be based upon a meeting of the minds; 

however, the meeting of the minds is “inferred, as a fact, from conduct of the parties 

showing, in the light of the surrounding circumstances, their tacit understanding.” 

Trauma Service Group v. United States, 104 F.3d 1321, 1326 (Fed. Cir. 1997) (quoting 

Hercules Inc. v. United States, 516 U.S. 417, 424 (1996)); United Pacific Insurance 

Company, ASBCA No. 53051, 03-2 BCA ¶ 32,267 at 159,624, aff’d, 380 F.3d 1352 

(Fed. Cir. 2004). 

II. ASCT Has Not Demonstrated the Existence of an Implied-In-Fact Contract 

 ASCT asserts that the implied-in-fact contract was created by its acceptance of 

an offer by the contracting officer, Mr. Boddie (app. br. at 15-21). Thus, we determine 

that the ASCT has satisfied the authority requirement. Similarly, ASCT’s allegation 

that it maintained the materials on-site for use by the reprocurement contractor 

provides consideration (app. br. at 17-18). The government appears to concede that 

there was consideration for an implied-in-fact contract for the storage of ASCT’s 
12

materials, but not for a contract to purchase the materials (gov’t resp. br. at 31).6

 This 

leaves mutuality of intent to contract, and unambiguous offer and acceptance as the 

contract formation elements in dispute. 

As noted in the findings of fact above, we hold that Mr. Boddie did not make a 

contractual offer at the February 14, 2013 meeting. Faced with conflicting statements

regarding the February 14, 2013 meeting, we conclude the contemporaneous statements 

and actions of the parties to be of greater weight than the declarations submitted eight 

years after the fact. See, e.g., Intermark Managed Servs., Inc., ASBCA Nos. 57654,

57655, 12-2 BCA ¶ 35,091 at 172,344 (quoting Fincke v. United States, 675 F.2d 289, 

295 (Ct. Cl. 1982)). First, we look to the February 25, 2013 meeting summary email. 

Both Mr. Boddie and Mr. Azimi testified that the summary was consistent with the 

statements at the meeting (tr. 49-50, 95-96, 195-96).

7

 The email provides that “USACE 

has procedures that it can use to pay you for those materials so that they can be used to 

finish building the project. Please contact me if you are interested in selling those 

materials to USACE” (R4, tab 8 at 2) (emphasis added). The language of the email 

provides that the government can use its procedures and that the subcontractors should 

contact Mr. Boddie if they were interested in selling the materials. We do not interpret 

the email as making a binding offer to the subcontractors, rather Mr. Boddie invited 

expressions of interest in selling materials. This interpretation is consistent with the 

other contemporaneous statements in the record, and is consistent with Mr. Azimi’s 

testimony that he understood that there were other steps that would need to be taken to 

reach an agreement with the government for the sale of the material (tr. 106-11). Thus, 

we hold that ASCT has not established the existence of an implied-in-fact contract for 

the sale or storage of its materials or equipment.

The subsequent communications between the parties are also insufficient to 

demonstrate the existence of an implied-in-fact contract. ASCT’s March 14, 2013 

response to the contracting officer stated that “as we owe most of the suppliers now for 

the procured materials, it would be of our mutual benefit to sell you our procured 

materials for your future plans. And [it] would be our pleasure to know how long will 

it take for the process, and what you would require us to send you” (R4, tab 9 at 3-4). 

Even allowing for a non-native English speaker, who might use more formal and less 

forceful language than a native English speaker, the email is clearly an inquiry as to 

whether the government would be interested in purchasing ASCT’s supplies, rather 

than an email seeking to confirm the details of an existing agreement.

 6 The government’s brief does not challenge the existence of an implied-in-fact 

contract for ASCT’s storage costs for February through November 2013 as 

found in the final decision. 

7 As both witnesses testified to the accuracy of the February 25, 2013 email as a 

summary of the February 14, 2013 meeting, we do not find the issue of the 

possibly missing audio recording to be relevant. 
13

Similarly, ASCT’s March 25, 2013 email was an inquiry as to whether the 

USACE would purchase the material, rather than an email seeking to confirm an 

existing deal. Admittedly, the email starts with the statement that: “[a]s was requested 

from your side by email, and agreed in the meeting, it was stated that the procured 

material for this project that are not billed to ACI will be paid by USACE” (id. at 1). 

However, the email continues with the statement that: “neither a positive nor negative 

response have been clarified from your side for the procurements payment and 

processing” followed by a request that the USACE “please let us know, if these 

materials will be procured by USACE and paid to us or not?” (id.). At best, the email 

can be read as saying, “I thought we had a deal, but you haven’t responded, please let 

me know.” Unfortunately for ASCT, a statement that “I thought we had a deal” does 

not demonstrate a tacit understanding between the parties. Trauma Service Group, 

104 F.3d at 1326.

ASCT additionally cites to the government’s June 26, 2013 presentation to 

ACI’s former subcontractors as an offer by the government to purchase its materials 

(app. br. at 23). However, the statements at the June 26, 2013 are, if anything, more 

clearly conditional than the earlier statements. After informing the subcontractors of a 

reduction in the scope of the project the government informed the subcontractors that 

“there is an opportunity for the subcontractors to have the materials they purchased for 

the original contract be used in the new contract” and requesting information from the 

subcontractors (R4, tab 11 at 1). The presentation additionally informed the 

subcontractors that they could remove their material from the site after demonstrating 

ownership (id.). The government’s statement that there was an “opportunity” cannot 

be read as a binding offer. 

In November and December 2013, ASCT emailed Navy Commander Jensen 

alleging that it had not removed its materials, and had incurred security and warehousing 

expenses based on the government’s promise to procure the materials (R4, tab 14 at 1-4). 

But here, the e-mails read as if ASCT is alleging that the government failed to take a 

contemplated future action, not that that the government had agreed back in February to 

enter into a contract. The same is true with regard to the communications between 

ASCT’s then counsel, Sher Saeedi, and Lieutenant Colonel Gary Davis, the District Chief 

of Contacting, in May 2014, where Mr. Saeedi indicated that ASCT wanted to “resolve 

this issue in an amicable way” (R4, tab 16 at 4) and that ASCT had been “left in a limbo 

by USACE with assurances of purchase of the goods at the site” (id.). 

In April 2017, after ASCT sued ACI in Delaware state court, and settled that 

action, ASCT’s then attorney contacted the government stating that “I am writing to 

gauge the Corps’ interest in purchasing the materials ASCT maintains on the project 

site and to reimburse ASCT for expenses related to maintaining and securing the 

materials for the past several years” (R4, tab 32 at 1). In June of that year, ASCT’s 

counsel again contacted the government, writing “[m]y client would like to know if the 
14

USACE intends to negotiate a resolution to this matter or not” (R4, tab 17 at 1). Once 

again, these communications, predating ASCT’s claim, can only be read as seeking a 

contract for the sale of the materials, and not as support for the existence of a meeting 

of the minds. 

Moreover, the government’s contemporaneous statements can only be read as 

conditional statements that something “could” happen. Statements of future intent do 

not constitute an offer. See, e.g., Linear Tech. Corp. v. Micrel, Inc., 275 F.3d 1040, 

1050 (Fed. Cir. 2001); Frazier v. American Airlines, Inc., 434 F. Supp. 2d 279, 

286-87 (D. Del. 2006), aff’d, 229 F. App’x 171 (3d Cir. 2007) (nonprecedential). The 

March 20, 2013, email from a government representative to Mr. Abdul Mateen Azimi, 

ASCT’s Vice-President, provided that he did not “know how long the process will 

take,” that it was “for the contracting officer to take action on,” and that the government 

would “eventually (I think) process the stored materials for payment but the 

Contracting Officer is running the show.” (R4, tab 9 at 2) Additionally, the June 26, 

2013, presentation to the former ACI subcontractors informed them that “there is an 

opportunity for the subcontractors to have the materials they purchased for the original 

contract be used in the new contract . . . To take advantage of the opportunity, former 

ACI subcontractors must provide the contracting officer with documentation that 

proves that materials were purchased for the ACI prime contract, and not paid for by 

ACI ... USACE needs copies of invoices . . . . If materials are still on site, USACE 

also needs photographs showing the quantity of materials and their current location” 

(R4, tab 11 at 1). Once again, the presentation uses conditional language about this 

being an opportunity and not does not state that the government had already agreed to 

purchase the material. The presentation also provided that “[i]f a former ACI 

subcontractor wants to remove the company’s materials from the RPTC site, the 

company has to provide acceptable proof of ownership, and then USACE will make 

arrangements to give the company access to the site to remove the materials” (id.). This 

statement is contrary to ASCT’s assertion that it was directed to maintain its material on 

site and that the direction was never revoked. ASCT understood that if it wanted to 

remove its materials from the project it was free to do so as long as it could prove its 

ownership to the materials (tr. 113). 

Additionally, we note that ASCT’s April 10, 2017 communication “writing to 

gauge the Corps’ interest in purchasing the materials ASCT maintains on the project 

site and to reimburse ASCT for expenses related to maintaining and securing the 

materials for the past several years” (R4, tab 32 at 1) is inconsistent with ASCT’s 

current position that an implied-in-fact contract was created in 2013. ASCT attempts 

to downplay the communication as an attempt by its prior attorney to “nudge” the 

government into honoring its prior commitment (app. reply at 11). However, the 

communication makes no reference to an existing contract as would be expected if 

ASCT believed that such a contract already existed. As we have already determined 

that the 2013 communications did not create an offer by the government, we interpret 
15

this 2017 communication as being consistent with our holding that there was not an 

implied-in-fact contract created in 2013.

ASCT argues that offer, acceptance, and mutuality of intent to contract is 

demonstrated through its performance. According to ASCT, the fact that it secured its 

material and kept the material on site is evidence of acceptance by performance. 

(App. br. at 16-17). ASCT asserts that its actions evidence the existence of the 

contract because, without an agreement, it would have removed its materials and sold 

the materials to others (id. at 18). However, ASCT also makes the conflicting 

argument that the materials were made to specification for the police station and 

“would have been very difficult to sell” (id. at 18-19). If the material would be “very 

difficult to sell” ASCT’s decision to leave the materials on site is more likely evidence 

of ASCT’s hope of a possible sale to the government, than evidence of performance of 

an implied-in-fact contact. 

ASCT additionally speculates that the government was “under great pressure to 

make a binding offer” to get the subcontractors back to work (app. br. at 19). ASCT 

cites no evidence for this “great pressure” and we do not deem it sufficient to support a 

finding of mutual intent to contract. Similarly, ASCT’s speculation that “it is 

reasonable to assume the Army had to offer to pay outstanding expenses” (app. reply 

at 15) is not evidence that scope of the purported implied-in-fact contract included 

off-site materials and equipment. 

The government relies upon our holding in Intellicheck, Inc., ASBCA No. 61709, 

21-1 BCA ¶ 37,892 for the proposition that simply maintaining the status quo with 

respect to the property is not conduct consistent with the existence of an implied-in-fact 

contract (gov’t resp. br. at 30-31). In Intellicheck the appellant was a subcontractor on a 

multiple award contract with the Navy. As part of its performance, Intellicheck had 

possession of certain government property that was to be returned to the Navy 

at completion of the task order. In September 2013, the prime contractor filed a claim 

related to additional labor costs. The matter was appealed to this Board in March 2014, 

and was settled in August 2014. However, Intellicheck had not received instructions for 

the return of the property, and did not release the last of the property to the Navy until 

the end of December 2015. Intellicheck, 21-1 BCA ¶ 37,892 at 184,029. Intellicheck 

subsequently submitted a claim asserting an implied-in-fact contract for its costs of 

storing and maintaining the Navy property. Id. at 184,029-30. The Board held that no 

implied-in-fact contract had been formed because Intellicheck had not demonstrated the 

existence of mutuality of intent, and an unambiguous offer and acceptance. “In order to 

establish mutuality of intent, appellant must show, by objective evidence, the existence 

of an offer and acceptance.” Id. at 184,131 (citing Guardian Safety & Supply LLC d/b/a 

Enviro Safety Products, ASBCA No. 61932, 19-1 BCA ¶ 37,333 at 181,561 (in turn 

citing Anderson v. United States, 344 F.3d 1343, 1353 (Fed. Cir. 2003))). “Once an 
16

offer is made, ‘acceptance of the offer [must] be manifested by conduct that indicates 

assent to the proposed bargain.’” Id. (citing Guardian Safety & Supply, 19-1 BCA 

¶ 37,333 at 181,561 (in turn quoting Northrop Grumman Sys. Corp. Space Sys. Div., 

ASBCA No. 54774, 10-2 BCA ¶ 34,517 at 170,237)).

Intellicheck differs from the appeal before us in several aspects; however, the 

holding is instructive. As explained above, we do not find the statements at the 

February 14, 2013 meeting, or in the February 25, 2013 email, to have constituted an 

offer. Thus, we reject ASCT’s argument that it accepted the offer by performance. 

Rather, we hold that ASCT’s communications with the government formed the offer. 

There is no evidence of conduct by the government that can objectively be seen as 

assenting to the implied-in-fact agreement. Intellicheck, 21-1 BCA ¶ 37,892 

at 184,031; Guardian Safety & Supply, 19-1 BCA ¶37,333 at 181,561. Simply put, the 

government’s inaction is not evidence of the formation of an implied-in-fact contract. 

ASCT additionally cites as “evidence” of an implied-in-fact contract statements by 

the contracting officer in the final decision (app. reply at 8 (“The Government has already 

found that this communication was sufficient to create an implied-in-fact contract to pay 

ASCT to secure its materials on site when ASCT accepted the offer by continuing to pay 

the costs needed to store and secure the materials after February 25, 2013”)). However, 

the contracting officer’s final decision is reviewed by this Board de novo. See 41 U.S.C. 

§ 7104(b)(4) (action brought before the Board proceeds de novo); Wilner v. United States, 

24 F.3d 1397, 1401-02 (Fed. Cir. 1994) (appeal to board or court from contracting 

officer’s final decision is de novo). Thus, the statements of the contracting officer, in this 

appeal, an individual different from the contracting officer that made the February 2013 

statements at issue, are not entitled to any deference. That said, the government has not 

requested that we overturn the contracting officer’s final decision. Rather the government 

requests that the “contracting officer’s final decision on this matter stand” (gov’t resp. br. 

at 41). Thus, although we do not find the existence of an implied-in-fact contract for 

ASCT’s storage costs from February through November 2013, we do not disturb the 

contracting officer’s final decision.

ASCT also dismisses the lack of price discussions as irrelevant to the question 

of contract formation. While ASCT is correct that a failure to agree on a price does 

not undermine other evidence of mutual assent (app. reply at 9 (quoting Gardiner,

Kamya & Assocs., P.C. v. Jackson, 369 F.3d 1318, 1322 (Fed. Cir. 2004))) here we 

determined that evidence of mutual assent is lacking. Once there is evidence of intent 

to contract, the price term can be supplied, but here there was no mutual intent to 

contract, and the lack of pricing discussions is further evidence that an implied-in-fact 

contract was not created.

Having determined that ASCT has not established the existence of an implied-infact contract, we need not reach ASCT’s arguments regarding the inclusion of 
17 

equipment and off-site materials in the alleged contract (app. reply at 15-19), or ASCT’s 

arguments interpreting its settlement agreement with ACI (app. reply at 13-15). 

 Having found that ASCT has not demonstrated the existence of an implied-in-fact 

contract, we hold that ASCT’s other asserted bases for recovery are not properly before 

us, are beyond our jurisdiction, or both. ASCT asserts that the government breached its 

duty of good faith and fair dealing (app. br. at 35-40). However, ASCT did not present a 

breach of the duty of good faith and fair dealing in its claim to the contracting officer 

(R4, tab 3). Accordingly, we lack jurisdiction to entertain this allegation. See, e.g. M. 

Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1327 (Fed. Cir. 2010) (citing

James M. Ellett Constr. Co. v. United States, 93 F.3d 1537, 1543 (Fed. Cir. 1996)). 

Even if we possessed jurisdiction to entertain the argument, it would fail because we 

held above that there was not an implied-in-fact contract between the USACE and 

ASCT. Without a contract, there can be no breach of the duty of good faith and fair 

dealing. See, e.g., Scott Timber Co. v. United States, 692 F.3d 1365, 1372 (Fed. Cir. 

2012) (holding that the government “could not have breached the covenant of good faith 

and fair dealing by its pre-award conduct because the covenant did not exist until the 

contract was signed”); Tug Hill Constr., Inc., ASBCA No. 57825, 14-1 BCA ¶ 35,777 

at 175,024, aff’d, 622 F. App’x 914 (Fed. Cir. 2015) (nonprecedential). 

 To the extent that ASCT’s complaint can be interpreted as asserting a Fifth 

Amendment taking of its property, or a claim for negligence in selecting the prime 

contractor, ASCT disclaimed these theories in our prior decision, and they need not be 

addressed here. ASCT Group, 20-1 BCA ¶ 37,540 at 182,289. 

CONCLUSION 

 For the reasons stated above, the appeal is denied. The contracting officer’s 

final decision, dated October 31, 2018, and awarding appellant $78,936, subject to 

ASCT submitting a proper invoice, remains in effect. 

 Dated: April 26, 2022 

(Signatures continued) 

DAVID D’ALESSANDRIS

Administrative Judge 

Armed Services Board 

of Contract Appeals
18 

I concur

RICHARD SHACKLEFORD

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals

I concur

OWEN C. WILSON

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals

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

Armed Services Board of Contract Appeal in ASBCA No. 61955, Appeal of ASCT 

Group, Inc., rendered in conformance with the Board’s Charter. 

 Dated: April 27, 2022 

PAULLA K. GATES-LEWIS

Recorder, Armed Services 

Board of Contract Appeals