ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

-- Anis Avasta Construction Company Under ContractNo. H92237-11-C-0343 APPEARANCE FORTHE APPELLANT: ) ) ) ) )

APPEARANCES FORTHE GOVERNMENT: ASBCA No. 61107

Mr. Shujah Mowafaq

CEO Jeffrey P. Hildebrant, Esq.

Air Force Deputy ChiefTrial Attorney Phillip E. Reiman, Esq. Lt Col Nathaniel H. Sears, USAF

Trial Attorneys OPINION BYADMINISTRATIVE JUDGE SWEET 

### Prose appellantAnis Avasta Construction Company (Anis Avasta) brings this appeal, alleging that the United States Air Force (government) breached a contract by failing to pay Anis Avasta for the construction ofa water supply and storage facility at Pusht-e Bagh, Afghanistan. Pursuant to Board Rule 11, the parties have elected to waive a hearing and to submitthe appeal on the record before the Board. The government argues that Anis Avasta has failed to meet its burden ofshowingthat there was a contract, orthat it performed underthe contract. Anis Avasta responds that there was a contract and it performed. As discussed below, we need not decide whether there was a contract because, even assumingthat there was a contract Anis Avasta has failed to demonstrate that it performed any work under the alleged contract, and, because it waited over five years to pursue payment without any contact with the government, Anis Avasta's claim is barred by the doctrine oflaches. Therefore, the appeal is denied. FINDINGS OF FACT 1. On 29 September2011, Shujah Mowafaq-Anis Avasta's Director (R4, tab 4 at 1 )-sentan email to Logistics Specialist Chief(LSC) Jose B. Diaz-the contracting officer representative (COR) for the CombinedJoint Special Operations Task Force-Afghanistan (R4, tabs 4, 15, 12). 2. Attached to the 29 September 2011 email was a Standard Form (SF) 1442 (Solicitation, Offer, and Award) for ContractNo. H92237-11-C-0343 (SF 1442) (R4,tabs 1, 4 at 1). Underthe SF 1442, Anis Avastawould construct a water supply and storage facility in exchange for $53,000 (R4, tab 1 at 3). 3. The SF 1442 stated that "[u]pon completion ofthe work andpriorto final payment, the contractor shall be required to furnish the Contracting Officer a Release of Claims (Attachment 1) perFAR 52.232-5, Payments Under Fixed-Price Construction Contracts" (R4, tab 1 at 6). Similarly, the SF 1442 incorporated by reference the clause at FAR 52.232-5 (id. at 14). FAR 52.232-5(h) provided that the government shall pay the amount due the contractorunderthe contract after the completion and acceptance of all work, and the presentation ofa voucher and a release. 4. Mr. Mowafaq signed the SF 1442 on behalfofAnisAvasta. Captain (now Major) David W. Knox's name was typewritten underthe box "Name ofContracting Officer," but Maj Knox did not sign the SF 1442 (R4, tab 1 at 2). Both Maj Knox and LSC Diaz declare that they have neither records regarding the SF 1442, nor any recollection that Maj Knox awarded Contract No. H92237-11-C-0343 to Anis Avasta. (R4, tab 15,,5, tab 16,,6) 5. On 2 October, 2011, Mr. Mowafaq emailed LSC Diaz, stating "Still I did not received [sic] the signedpage from you. Please let me know back." (R4, tab 4 at 2) 6. LSC Diazresponded by sendingMr. Mowafaq via email a 2 October2011 notice to proceed (NTP). TheNTP stated that "[y ]ou are hereby notifiedtoproceed with theperformancerequired by the terms ofthe subject contract, on 07 October 2011." TheNTP containedMaj Knox's typewritten name, but not his signature. (R4, tab 6) 7. On 8 October 2011, Anis Avastareceived an email from personnel at Pusht-e Bagh seeking to arrange the construction. After several emails, Anis Avasta stated on 13 October 2011 that its supervisorwouldbe at Pusht-e Bagh to survey the site on 14 October 2011, afterwhich Anis Avasta would send a workteam to finish the coritract. (R4, tab 7) 8. However, there is no evidence in the record that Anis Avasta performedthe work. NeitherMaj Knox norLSC Diaz rememberAnis Avasta completing-orthe government accepting-the work (R4, tab 15,,5, tab 16,,6). Nor is there a declaration from Mr. Mowafaq that Anis Avasta completedthe work. More importantly, there is no contemporaneous evidencethat Anis Avasta completed-or the government accepted-thework. There are no communications between Anis Avasta and the government-or any other documents-between October2011 and February 2017 in the record. In particular, Anis Avasta did not send the government a voucher or a release. Nor is there any evidence in the record that Anis Avasta contacted the governmentto perform a site survey.

29. Rather, more than five years afterthe October 2011 emails, Anis Avasta submitted a claim on 6 February 2017 (R4, tab 8). By that time, the deteriorating security situation at Pusht-e Bagh prevented the government from verifying that Anis Avasta had, in fact, constructed the water supply and storage facility (supp. R4, tab 17, 

### ,i 5). 10. The contracting officer (CO) issued a final decision denying Anis Avasta's claim (R4, tab 10). Anis Avasta timely appealed to this Board. DECISION Even assuming that there was a contract, Anis Avasta is not entitled to recover underthe doctrine oflaches and FAR 52.232-5(h) as a result ofits delay in pursuing its claim. "Laches is an equitable doctrine under which reliefis denied to one who unreasonably and inexcusably delays in the assertion ofa claim, thereby causing injury or prejudice to the adverse party." Rudolf Bieraeugel, Stahl-undMetallbau, GesellschaftmitbeschraenkterHaftung, ASBCANo. 47145, 95-1 BCA

### ,i 27,536 at 137,220. There is no presumption ofprejudice, and the passage oftime alone does not constitute laches. MediaxInteractive Tech., Inc., ASBCA No. 43961, 93-3 BCA 

### ,i 26,071 at 129,582. Rather, it is the government's burden to show unreasonable delay and resulting prejudice. Bieraeugel, 95-1 BCA 

### ,i27,536 at 137,220 (citing S.E.R., Jobs/orProgress, Inc. v. UnitedStates, 759 F.2d 1, 5 (Fed. Cir. 1985)). Here, Anis Avasta waited over five years after it purportedly performed to seek compensation from the government (finding 9). That was unreasonable and prejudicial because, by the time Anis Avasta sought compensation, the CO and COR no longer had any memory ofthe events (finding 8). More importantly, by the time Anis Avasta sought compensation, the deteriorating security situation at Pusht-e Bagh precluded the government from even verifying that Anis Avasta had performed the work (finding 9). BecauseAnis Avasta's delay has prevented the government from verifying thatAnis Avastaperformed, we deny reliefunder the doctrine oflaches. Anotherproblem for Anis Avasta arising out ofits lack ofdiligence in pursuing its claim is that it is unable to show that it complied with the contract underwhich it was seeking recovery. Under FAR 52.232-5(h}-whichwas incorporated into the SF 1442-thegovernment only has an obligation to pay Anis Avasta once it completes performance, it submits a voucher and a release, and the government has inspected and accepted performance (finding 3). Here, there is no evidence that Anis Avasta performed underthe SF 1442. Nor did Anis Avasta submit a voucher and a release. (Finding 8) While Anis Avasta argues that it contacted the CORto survey the site upon completion (app. br. at 3), it presents no evidence to support that assertion, let alone to show that it submitted a voucher and a release (finding 8). Because Anis Avasta has not established that it completedperformance, that it submitted a voucher

3and a release, and that the government inspected and accepted performance, it is not entitledtopayment.

The appeal is denied. Dated: 18 April 2018

I concur 

# -ffati

RICHARD SHACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContractAppeals CONCLUSION

Administrative Judge Armed Services Board ofContract Appeals I concur



# ~-- OWEN C. WILSON AdministrativeJudge Vice Chairman Armed Services Board ofContract Appeals

I certify thatthe foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContract Appeals in ASBCA No. 61107, Appeal ofAnis Avasta Construction Company, rendered in conformance with the Board's Charter. Dated:

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