ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of --

Anis A vasta Construction Company 

Under Contract No. H92237-11-C-0343 

APPEARANCE FOR THE APPELLANT: 

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APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 61107 

Mr. Shujah Mowafaq 

CEO 

Jeffrey P. Hildebrant, Esq. 

Air Force Deputy Chief Trial Attorney 

Phillip E. Reiman, Esq. 

Lt Col Nathaniel H. Sears, USAF 

Trial Attorneys 

OPINION BY ADMINISTRATIVE JUDGE SWEET 

Prose appellant Anis 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 of a 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 submit the appeal on the record before the Board. The 

government argues that Anis A vasta has failed to meet its burden of showing that there 

was a contract, or that it performed under the contract. Anis A vasta responds that there 

was a contract and it performed. As discussed below, we need not decide whether 

there was a contract because, even assuming that there was a contract Anis A vasta 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 September 2011, Shujah Mowafaq-Anis Avasta's Director (R4, 

tab 4 at 1 )-sent an email to Logistics Specialist Chief (LSC) Jose B. Diaz-the 

contracting officer representative (COR) for the Combined Joint 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 Contract No. H92237-11-C-0343 (SF 1442) (R4, 
tabs 1, 4 at 1). Under the SF 1442, Anis Avasta would 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 of the work and prior to final 

payment, the contractor shall be required to furnish the Contracting Officer a Release of 

Claims (Attachment 1) per FAR 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 contractor under the contract after the completion and acceptance of 

all work, and the presentation of a voucher and a release. 

4. Mr. Mowafaq signed the SF 1442 on behalf of Anis Avasta. Captain (now 

Major) David W. Knox's name was typewritten under the box "Name of Contracting 

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 signed page from you. Please let me know back." (R4, tab 4 at 2) 

6. LSC Diaz responded by sending Mr. Mowafaq via email a 2 October 2011 

notice to proceed (NTP). The NTP stated that "[y ]ou are hereby notified to proceed 

with the performance required by the terms of the subject contract, on 07 October 

2011." The NTP contained Maj Knox's typewritten name, but not his signature. (R4, 

tab 6) 

7. On 8 October 2011, Anis Avasta received an email from personnel at Pusht-e 

Bagh seeking to arrange the construction. After several emails, Anis A vasta stated on 

13 October 2011 that its supervisor would be at Pusht-e Bagh to survey the site on 

14 October 2011, after which Anis A vasta would send a work team to finish the coritract. 

(R4, tab 7) 

8. However, there is no evidence in the record that Anis Avasta performed the 

work. Neither Maj Knox nor LSC Diaz remember Anis A vasta completing-or the 

government accepting-the work (R4, tab 15,, 5, tab 16,, 6). Nor is there a 

declaration from Mr. Mowafaq that Anis Avasta completed the work. More 

importantly, there is no contemporaneous evidence that Anis Avasta completed-or 

the government accepted-the work. There are no communications between Anis 

A vasta and the government-or any other documents-between October 2011 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 government to perform a site survey. 

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9. Rather, more than five years after the October 2011 emails, Anis A vasta 

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 

under the doctrine of laches and FAR 52.232-5(h) as a result of its delay in pursuing its 

claim. "Laches is an equitable doctrine under which relief is denied to one who 

unreasonably and inexcusably delays in the assertion of a claim, thereby causing injury 

or prejudice to the adverse party." Rudolf Bieraeugel, Stahl-und Metallbau, 

Gesellschaft mit beschraenkter Haftung, ASBCA No. 47145, 95-1 BCA ,i 27,536 at 

137,220. There is no presumption of prejudice, and the passage of time alone does not 

constitute laches. Mediax Interactive 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 ,i 27,536 at 137,220 (citing S.E.R., 

Jobs/or Progress, Inc. v. United States, 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 A vasta sought compensation, the CO and COR 

no longer had any memory of the 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 A vasta had performed the 

work (finding 9). Because Anis Avasta's delay has prevented the government from 

verifying that Anis Avasta performed, we deny relief under the doctrine of laches. 

Another problem for Anis Avasta arising out of its lack of diligence in pursuing 

its claim is that it is unable to show that it complied with the contract under which it 

was seeking recovery. Under FAR 52.232-5(h}-which was incorporated into the 

SF 1442-the government only has an obligation to pay Anis A vasta 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 under the SF 1442. Nor did Anis Avasta submit a voucher and a release. 

(Finding 8) While Anis Avasta argues that it contacted the COR to 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 completed performance, that it submitted a voucher 

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

entitled to payment. 

The appeal is denied. 

Dated: 18 April 2018 

I concur 

-ffati 

RICHARD SHACKLEFORD 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

CONCLUSION 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

~--

OWEN C. WILSON 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

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

Armed Services Board of Contract Appeals in ASBCA No. 61107, Appeal of Anis 

Avasta Construction Company, rendered in conformance with the Board's Charter. 

Dated: 

4 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals