ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

Edinburgh International ) 

) 

Under Contract No. W91B4K-09-D-0002 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCE FOR THE GOVERNMENT: 

ASBCA No. 58864 

Armani Vadiee, Esq. 

Smith Pachter Mc Whorter PLC 

Tysons Comer, VA 

E. Michael Chiaparas, Esq. 

DCMA Chief Trial Attorney 

OPINION BY ADMINISTRATIVE JUDGE THRASHER 

This appeal concerns a task order under the parties' indefinite-delivery, 

indefinite-quantity (IDIQ) contract for provision of security services at various 

facilities throughout Afghanistan. Appellant seeks an upward price adjustment of 

$164,485 for the cost of billeting security personnel during performance of the task 

order. We have jurisdiction over this matter pursuant to the Contract Disputes Act of 

1978 (CDA), 41 U.S.C. §§ 7101-7109. The parties elected to waive a hearing and 

submit their cases on the record under Board Rule 11. 

FINDINGS OF FACT 

1. On 22 May 2009, Edinburgh International (EI) 1 was awarded Contract 

No. W91B4K-09-D-0002 (IDIQ contract), an IDIQ commercial contract to perform 

base security functions at Forward Operating Bases (FOBs) and facilities, which were 

to be specified in individual task orders, throughout the Task Force Duke Area of 

Operations located in the provinces ofNangarhar, Nuristan, Kunar, and Laghman 

(N2KL) provinces of Afghanistan (R4, tab 1 at G-42). A total of three contracts were 

awarded as a result of the solicitation for these services (R4, tab 1 at G-3, tab 65). The 

IDIQ contract was for a base year beginning 1 July 2009 through 30 June 2010 and 

included four option years (R4, tab 1 ). 

2. The IDIQ contract provides that the "[c]ontractor shall provide all labor, 

weapons, ammunition ... and other operational equipment to perform facility protective 

services as defined in each individual task order" (R4, tab 1 at G-6). The statement of 

work also provides that the contractor shall "utiliz[ e] indigenous personnel from the 

1 Edinburgh International is the trading name of the ERSM Limited group of 

companies (R4, tab 12). 
area surrounding the performance location [to] provide internal security for each 

location as specified in individual task orders" (R4, tab 1 at G-43). 

3. On 25 July 2010, Solicitation No. W91B4L-10-R-0230 was released seeking 

quotes for a contractor to provide "all labor, tools, materials, equipment, personnel and 

all other services required to provide ... : PRIVATE SECURITY CONTRACTOR 

(PSC) SERVICES" at COB Blackhawk Vehicle Holding Area (VHA Blackhawk) in 

Kandahar Province, Spin Boldak, Afghanistan (R4, tab 61 at G-415, tab 62). The 

solicitation notice provided: 

This is [a] firm-fixed price procurement and will be 

procured using commercial item procedures and award 

selection will be made based on lowest price, technically 

acceptable. 

(R4, tab 61 at G-415) Quotes were due no later than 2 August 2010 (R4, tab 63 at G-504). 

4. On 13 August 2010, U.S. CENTCOM Contracting Command, sent an email 

with the subject line, "Request for Quote" to the three contractors under the IDIQ 

contract (R4, tab 65; app. reply br., ex. 1, (Smith decl.) ~ 3). The email stated, in part: 

This will be awarded to the LPTA vendor under their IDIQ 

award. So it will be a TO off your IDIQ if awarded. 

Closing for this RFQ is 19 1200 AUG 10. Please ensure 

that your quote is broken down into CLINS. Below is the 

minimum that I need, you may break it down more if you 

want to. 

0001 ASG Guards 

0002 DBA Insurance 

0003 Compound Establishment/Mobilization Costs 

I also need to know the mobilization time for this requirement. 

We require services to be in place NL T 15 SEP 10. 

(R4, tab 65) The email included an attachment entitled "STATEMENT OF WORK 

(COB Blackhawk)." The statement of work document was not included in the appeal 

record. The parties both reference the language of Solicitation No. W91B4L-10-R-0230 

in their briefs when discussing the clauses of the RFQ. However, EI did not respond to 

the solicitation (Smith decl. ~ 3), and appellant's personnel's declarations stated that the 

statement of work emailed to the IDIQ contractors did not include any of the typical 

clauses found in solicitations such as the site visit clause (Smith decl. ~ 3; app. reply br., 

ex. 2, (Donohue decl.) ~ 4). The solicitation released on 25 July 2010 did include FAR 

2 
clauses (R4, tab 62). We find that the statement of work emailed to the IDIQ contractors 

was not the same as the solicitation. 

5. By email dated 17 August 2010, EI submitted a request for clarification with 

respect to a few task order solicitations. The email stated, in part: 

(R4, tab 7) 

1. Camp Nathan Smith, COB Blackhawk: The SOWs 

state that there will be no life support requirements on 

either contract. 

Please confirm that ASG [Afghan Security Guards] are 

expected to travel from their homes to the site for each 

work shift? 

6. The contracting officer (CO) responded by email on 18 August 2010. He stated: 

(R4, tab 7) 

Yes, ASG are expected to travel from their homes to the 

site for each work shift. Only the Site Coordinator and Site 

Commander will be provide[d] life support on the FOB. 

(Government billeting and DF AC) 

7. EI submitted a proposal in response to the emailed request for quote. The 

technical proposal stated, in pertinent part: 

BILLETING 

The Off eror notes that billeting will be provided by the 

Government for the Expatriate Security Coordinator and 

Site Commander. The Offeror works to the assumption 

that daily travel is possible for the Afghan Guards. 

Should the security system deteriorate to a point where 

daily travel is not possible, Offeror would seek a 

modification to provide for billeting. 

(R4, tab 68 at G-528) 

8. EI was awarded Task Order No. 3D01, on 8 September 2010 (R4, tab 9). 

The front sheet of the task order award marks Box 28, which provides: 

3 
(R4, tab 9) 

CONTRACTOR IS REQUIRED TO SIGN THIS 

DOCUMENT AND RETURN l COPIES TO ISSUING 

OFFICE. CONTRACTOR AGREES TO FURNISH AND 

DELIVER ALL ITEMS SET FORTH OR OTHERWISE 

IDENTIFIED ABOVE AND ON ANY ADDITIONAL 

SHEETS SUBJECT TO THE TERMS AND 

CONDITIONS SPECIFIED HEREIN. 

REF: Quote provided on 19 Aug 10[.] 

9. The task order requires EI to provide 68 total personnel, including 1 security 

coordinator, 1 site commander, 3 shift commanders, 3 communication specialists and 60 

security guards for 12 months plus one 6-month option (R4, tab 9 at G-93-94, 99). The 

contract line item numbers (CLINs) for private security contract services and 

mobilization costs are firm-fixed-price CLINs. Only the CLINs for DBA insurance are 

marked as cost CLINs with the actual amount to be determined based upon the amount of 

the Rutherford invoice. (R4, tab 9 at G-93-95) 

10. Of particular importance to this dispute, the task order includes terms addressing 

the recruitment and maintenance of security personnel. The task order provides: 

11. ACCOMODATION AND MEALS: 

11.1. The Government will not provide a billeting area at 

the VHA. There will be no billeting requirements 

for this contract for any security personnel. 

11.2. The Government will provide an RLB in the VHA 

for office space for command and control during the 

length of the contract. Contractor will be 

responsible for maintaining the office buildings .... 

11.3. The Government will not provide meals for security 

personnel. The Contractor is responsible for 

providing all meals to the security personnel. ... 

11.4. The government will provide bottled water. 

11.5. The government will provide adequate latrine service. 

4 
16.3 RECRUITING, HIRING AND STAFFING 

PROCEDURES 

The Contractor should maximize the employment of current 

guards at each location. To do so, the Contractor shall give 

the right of first refusal to at least 7 5% of the current local 

PSC workforce. In addition, the Contractor is encouraged 

to hire a minimum 75% of its guard force from within a 

50 kilometer radius of the location requiring security. 

(R4, tab 9 at G-105, -107) L TC Mote was the CO for the Kandahar region and was 

responsible for reviewing El's proposal (gov't br., ex. 1, (Mote decl.) ,-i,-r 2-3). However, 

he did not sign the contract because the contract exceeded his warrant (Mote decl. ,-r 4). 

According to the declaration of L TC Mote, "the parties to the contract understood that 

Edinburgh would hire guards from the local population, with the exception of supervisory 

personnel" and that EI' s guards "would travel to and from the worksite each day" (Mote 

decl. ,-i,-r 5-6). This is consistent with the assumption provided in EI' s proposal 

(finding 7). Accordingly, we find that at the time of contract award, the parties thought 

that security personnel would be able to travel from their homes to work. 

11. During the beginning phase of contract performance, EI experienced 

difficulties in recruiting local Afghanis to serve as security personnel. EI determined 

that local personnel could not be recruited unless EI bribed the local leader of the 

Afghan National Border Police (ANBP), a colonel, who policed local roads. Hiring of 

local guards without the colonel's approval would have placed personnel in danger of 

extortion or physical harm from the ANBP. (R4, tab 78; Smith decl. ,-r~ 7-8) EI 

determined that working with the community leaders would put EI in breach of other 

terms of the task order and U.S. law (R4, tab 78). 

12. Apparently, due to concerns about the colonel's actions, EI chose to pursue 

the billeting of security personnel on base (Smith decl. ~~ 11, 13; Donohue decl. ~ 11 ). 

In October 2010, EI began discussions with the COR and the Force Protection Officer, 

CPT McMorris, about potential areas where EI could house the guard force it was 

hiring from outside the local population (gov't br., ex. 3, (McMorris decl.) ~ 6). By 

email dated 25 October 2010, CPT McMorris requested a status update regarding how 

EI intended to proceed with staffing the task order. He stated: 

What is EI doing regarding housing for guards for VHA? 

Are you renting some land off VHA? 

Here is the Course of Actions that we see: 

COA 1 - EI renting lodging area somewhere in vicinity 

5 
COA 2 - EI buys tents and puts in VHA 

COA 3 - EI buys generator, AC unit and US Gov finds a 

tent (we have discuss[ ed] this and see if it is even 

possible). I am going to run this by contracting and SJA. 

Ideas? 

Lets pick a COA and get it done. COA 3 is not promised, 

it is an option we can look at with legal and contracting if 

everyone wants that option. 

EI responded: 

(R4, tab 76) 

As per our initial meeting when we discuss[ ed] setting up 

the man camp for the ASG. I believe I inform[ ed] you then 

that it wasn't included in the contract but I agreed it was a 

good idea that we keep most of the ASG on site to ensure 

they are they [sic] for work. I informed our international 

office in Dubai of change and received this reply[:] 

"If guards are to stay on the FOBNHA, that definitely 

requires a contract mod. The SOW specifically required 

that the guard force could not stay on the site - this is very 

unusual, but we clarified it with the contracting officer and 

they stuck to it so if this changes we have to have a chance 

to price it in ... " 

I informed David Bernier of this to inform the COR and he 

said that the Army wasn't willing to modify the contract. 

We are willing to do this, however, there is a cost involved 

that we have to add to the contract. 

13. EI recruited security personnel from outside the local population to work at 

VHA Blackhawk (Donohue decl. ~ 11; Ramirez decl. ~ 4). EI was also able to recruit 

some local residents to work as security personnel (Smith decl. ~ 13). EI set up tents 

in VHA Blackhawk to house its security personnel (gov't br., ex. 2 (Deering decl.) 

~ 6). All security personnel, whether local or not, were billeted at VHA Blackhawk in 

the tents set up by EI (Smith decl. ~ 13). 

6 
14. EI submitted a modification proposal to the CO on 28 December 2010 

stating "As you know, the rollout of the services at VHA Blackhawk has been very 

challenging for a number of reasons.... We have developed the attached proposal to 

address these problems." (R4, tab 79) The proposal provided, in pertinent part: 

Since [the task order] award, a number of planning 

factors have changed that have rendered the 

Government's original concept of operations, as 

expressed in the Statement of Work, untenable. 

Edinburgh International seeks a modification to the task 

order, to take into account factors that were not 

accounted for in the original Statement of Work (SOW). 

2. Local labor monopoly and corrupt hiring practices 

for local staff. The undue influence of certain Afghan 

security forces personnel in Spin Boldak means there is 

an effective monopoly on local labor .... 

4. EI proposed solution: Add recruits from outside the 

immediate site area to reduce undue influence on the 

guard force, while also paying higher rates to attract 

reliable labor force. 

7. Requirement to provide a Life Support Area (LSA) 

for guards on the VHA site. The SOW (section 11.1) 

specifically stated that no billeting would be required or 

allowed on the VHA site. Due to the employment of 

guards from outside of the local area, it is clear that the 

concept of security guards returning to their homes while 

off duty is not workable at this site. The distance to travel 

would significantly detract from the ability to reinforce 

the guards on duty and repel a determined attack on the 

site. Therefore a secure LSA must be provided, meeting 

the standards of the US Army Sandbook and the other 

standards contained within the SOW. Such a facility will 

require a full suite of living and eating quarters, storage, 

and laundry and ablution facilities. 

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Note: Due to the urgency of the requirement El has 

already begun procuring life support facilities and 

equipment. El has undertaken this 'at risk' since the 

existing contract does not provide for such facilities. 

14 .... The changes proposed in this modification will 

enhance the security of the site by reducing the negative 

influence of external personnel and providing an 

independent, committed and capable guard force with 

expatriate supervision to ensure the highest standards. 

(R4, tab 12 at G-158-60) 

15. By email dated 20 July 2011 the administrative contracting officer (ACO) 

requested background and documentation concerning El's alleged out-of-scope work 

(R4, tab 29). EI responded by email dated 21July2011. El's response was largely a 

reiteration of its earlier accounts but added that upon realizing that "having guards live 

off site was totally unworkable[, the COR] insisted that the contractor was to provide a 

life support area." (R4, tab 30) 

16. Earlier, Command decided to close VHA Blackhawk. EI was notified of 

the decision by email dated 9 July 2011. (R4, tab 24) Accordingly, the CO 

determined that he would not exercise the option of El's task order (R4, tabs 24, 26). 

17. EI submitted a "request for an adjustment upon the closeout of the VHA 

Blackhawk contract" to the ACO by email dated 27 September 2011. The request 

sought the following closedown price adjustments: 

Item Cost 

Mobilization $ 4,447.94 

Life Support Equipment $131,741.46 

Life Support $ 14,936.78 

Material Resupply $ 13,359.67 

Total $164,485.85 

Mobilization Costs include the costs of mobilizing the 

additional necessary Life Support items that were not 

included in the original price proposal. 

Life Support Equipment includes items such as tents, 

bedding, showers and latrines, HV AC, generator, and other 

costs incurred in the establishment of the life support area. 

8 
Life Support Costs are the daily operational costs incurred 

to provide life support to the guard force and includes costs 

such as food and fuel for cooking, potable and non-potable 

water supply. 

Material Resupply Costs include costs such as 

maintenance of the generator, black and grey water 

removal, and septic services. 

(R4, tab 39 at G-316, -328) 

18. The government denied El's request by letter dated 23 December 2011 

(R4, tab 45). 

19. EI resubmitted its request as a certified claim in the amount of$164,485.85 

by letter dated 22 March 2012 (R4, tab 47). The CO acknowledged receipt of the 

claim the same day (R4, tab 102). 

20. EI filed a notice of appeal from the deemed denial of its claim with the 

Board on 6 September 2013. 

DECISION 

Appellant argues that EI had a "contractual right to a price adjustment in the 

event that guards provided under the contract could not reside at their private homes 

and commute to VHA Blackhawk on a daily basis" (app. reply br. at 1), and that, 

therefore, the government's failure to provide a contract modification to adjust the 

contract price constituted a breach of the contract by the government (app. br. at 9-11). 

The government argues that the language of the contract "does not reflect a 

Government agreement to compensate [EI] for any future billeting costs [it] might 

incur" (gov't reply br. at 2). 

To recover on a breach of contract theory, appellant must show ( 1) that the 

government owed appellant a contract duty, (2) that the government breached that duty and 

caused damage to appellant, and (3) that the damage was reasonably foreseeable at the time 

of contract award. TRS Research, ASBCA No. 51712, 01-1BCAif31,149 at 153,874. 

"Appellant bears the burden of proving its claims by a preponderance of the evidence." 

MA. Mortenson Co., ASBCA No. 53105 et al., 04-2 BCA if 32,713 at 161,845. 

At the core of the parties' dispute is a question of contract interpretation 

concerning whether the government owed appellant a contract duty to provide a price 

adjustment for billeting costs. "Contract interpretation begins with the plain language of 

the written agreement." Hercules Inc. v. United States, 292 F.3d 1378, 1380 (Fed. Cir. 

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2002). "When interpreting the contract, the document must be considered as a whole and 

interpreted so as to harmonize and give reasonable meaning to all of its parts." NVT 

Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004). "In determining the 

rights and obligations of the parties, we look to the entire contract and, if necessary, to 

evidence extrinsic to the contract itself, including the facts and circumstances 

surrounding the formation and performance of the contract." TRW, Inc., ASBCA 

Nos. 27299, 27602, 87-3 BCA if 19,964 at 101,071. We accord considerable weight to 

the parties' contemporaneous mutual understanding of how the contract was to work. 

C!2, Inc., ASBCA Nos. 56257, 56337, 14-1BCAiI35,698 at 174,781. 

Examining the plain language of the task order, we conclude that the billeting of 

security personnel was outside the scope of work of the task order. The task order provides: 

11.1 The Government will not provide a billeting area at 

the VHA. There will be no billeting requirements 

for this contract for any security personnel. 

(Finding 10) The first sentence concerns only the government and provides that the 

government will not provide space at VHA Blackhawk to set up billeting for security 

personnel. The second sentence states simply that there is no billeting requirement. 

This is reasonably read to provide that neither the government nor appellant is required 

to provide billeting for security personnel. 

Further examination of the pertinent language in the context of the task order as 

a whole, and the parties' discussions during contract formation, supports our 

interpretation that billeting was outside the task order's scope of work. Billeting is 

addressed in section 11 of the task order, entitled Accommodation and Meals 

(finding 10). This section establishes which party to the contract will be responsible 

for various aspects of support for security personnel. Save for the second sentence of 

clause 11.1, quoted above, each sentence of section 11 specifically identifies one party 

or the other (see, e.g., finding 10 ("The Government will not provide meals for 

security personnel. The Contractor is responsible for providing all meals to the 

security personnel.")). The unique construction of the second sentence of clause 11.1, 

in the context of the rest of section 11, further supports our interpretation that the "no 

billeting requirements" language applies to both contracting parties. This 

interpretation is also consistent with the parties' exchange during contract formation, 

describing that "ASG are expected to travel from their homes to the site for each work 

shift" (findings 5-6). In this full context, the only reasonable interpretation of clause 

11.1 is that billeting of security personnel by either contracting party was not 

contemplated by the task order. 

During contract performance, however, EI encountered interference of a third 

party, the colonel who led the ANBP (finding 11). Due to the influence of the colonel 

over the local population, EI was unable to perform the contract in the manner it had 

10 
originally anticipated (see findings 10-11 ). EI recruited security personnel from 

outside the local population, which meant that personnel could not return to their 

homes while off duty (findings 11, 13). Accordingly, despite the contract terms, EI set 

up tents within VHA Blackhawk where all security personnel were billeted 

(finding 13). This action was taken by EI without a contract modification, and there is 

no evidence that the CO directed EI to billet its security personnel at VHA Blackhawk 

(see findings 12, 14-15). 

The question now before the Board is how did the contract allocate the risk of 

performance of the out-of-scope billeting services.2 There is no question that the task 

order is a fixed-price contract (findings 4, 9). It is well settled that "the risk of increased 

performance costs in a firm-fixed-price contract, absent a clause stating otherwise, are on 

the contractor." Chevron U.S.A., Inc., ASBCA No. 32323, 90-1BCA,-r22,602 at 

113,426; see also United States v. Spearin, 248 U.S. 132, 136 (1918) ("Where one agrees 

to do, for a fixed sum, a thing possible to be performed, he will not be excused or become 

entitled to additional compensation, because unforeseen difficulties are encountered."). 

Everything points to appellant bearing the risk of these increased performance costs unless 

some other language in the contract shifted the risk of billeting to the government. 

The task order incorporates, by reference, appellant's proposal (finding 8). 

Appellant argues that the language of its proposal did shift the risk of billeting costs 

from appellant to the government (app. br. at 10-11). Appellant's proposal provides: 

(Finding 7) 

BILLETING 

The Offeror notes that billeting will be provided by the 

Government for the Expatriate Security Coordinator and 

Site Commander. The Offeror works to the assumption 

that daily travel is possible for the Afghan Guards. 

Should the security system deteriorate to a point where 

daily travel is not possible, Offeror would seek a 

modification to provide for billeting. 

We do not find that this language can reasonably be read to shift the risk of 

increased performance costs for billeting from appellant to the government. Notably 

the language does not state that EI is entitled to a price adjustment if billeting is 

required. Rather it states that appellant would seek a modification if the circumstances 

on the ground were different than appellant had anticipated. Contractors are always 

entitled to seek a modification. Declaring an intention to seek a modification is not the 

2 There is no evidence that EI ever declared the contract impossible of performance 

and of course the government did not terminate the contract for default. 

11 
same as establishing that the government will be liable for additional costs of billeting 

should the parties' assumption about how the contract is to be performed be incorrect. 

The language, written by appellant, does not establish that the government is liable for 

additional performance costs incurred by EI' s billeting of security personnel. 

Appellant entered into a fixed-price task order with the government, where 

recruitment and maintenance of security personnel was EI' s responsibility and it bore 

the risk of increased performance costs resulting from the performance of these 

contractual responsibilities. There is nothing in the contract that convinces us that this 

risk was shifted to the government. 

CONCLUSION 

The government did not owe appellant a contractual duty to pay for the cost of 

billeting security personnel at VHA Blackhawk under the task order. Therefore, the 

government did not breach the contract by not agreeing to a price adjustment for the 

additional costs of billeting security personnel. Accordingly, the appeal is denied. 

Dated: 11 January 2016 

I concur 

12 

I concur 

RICHARD SHACKLEFORD 

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. 58864, Appeal ofERSM 

Limited, d/b/a Edinburgh International, rendered in conformance with the Board's 

Charter. 

Dated: 

13 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals