ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE TAYLOR 

ON THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT AND 

APPELLANT’S CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT 

 This appeal involves a claim by Targe Logistic Services Company (TLS or 

appellant) for the loss of fuel, delivery equipment, and other assets due to the collapse 

of the Government of Islamic Republic of Afghanistan (GIRoA) following the 

takeover of the country by the Islamic Emirate of Afghanistan (known as the Taliban). 

TLS contends the United States Army (Army or government) is responsible for its 

alleged losses because the Army breached several contracts by failing to pay for 

delivered and stored fuel (Count I), provide security and access to the facilities 

(Count II), breached the covenant of good faith and fair dealing (Count III) and 

constructively changed the contracts (Count V). The government filed a motion for 

summary judgment contending it is entitled to judgment on this appeal as a matter of 

law on those counts since the undisputed facts show that it did not breach or 

constructively change the contracts. Moreover, the government asserts the Board 

should grant its motion based upon the affirmative defenses of sovereign acts, 

third-party actions, assumption of risk and the unambiguous contract terms. 

Appeal of - )

)

Targe Logistic Services Company ) ASBCA No. 63282

)

Under Contract Nos. W91B4N-18-D-2005

 W91B4N-19-D-0005 

 W91B4N-19-D-0006 

 W91B4N-19-D-0008 

 W91B4N-19-D-0009 

 W91B4N-19-D-0010

)

APPEARANCES FOR THE APPELLANT: Enayat Qasimi, Esq.

Shamsi Maqsoudi, Esq.

 Whiteford, Taylor & Preston LLP

 Washington, DC

APPEARANCES FOR THE GOVERNMENT: Dana J. Chase, Esq.

 Army Chief Trial Attorney

Major Brandon P. Mark, JA

 Trial Attorney
2 

 TLS contends disputed material facts exist that prevent the Board from granting 

the Army’s summary judgment motion. In addition, TLS filed a cross-motion for 

partial summary judgment asserting an entitlement to payment for the fuel stored at the 

various facilities and terminals under the commercial termination for convenience 

clause since the contracts included a minimum fuel requirement (Count IV). The 

Army responded to TLS’s cross-motion contending it is not required to pay for that 

fuel since the Taliban confiscated the fuel before the termination for convenience 

occurred and the contracts placed the risk of loss on TLS. 

 For the reasons discussed below, we grant the government’s motion for 

summary judgment and deny TLS’s partial cross-motion. 

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 

The Contracts 

1. The Army awarded Contract Nos. W91B4N18D2005, W91B4N19D0005, 

W91B4N19D0006, W91B4N19D0008, W91B4N19D0009 and W91B4N19D0010 (the 

contracts) to TLS beginning on October 10, 2018 (R4, tabs 1-6). 

2. The contracts were indefinite-delivery, indefinite-quantity (IDIQ) contracts 

for the supply and delivery of aviation turbine fuel to Afghan National Defense and 

Security Forces (ANDSF) sites throughout Afghanistan (R4, tab 1 at 28).1

 The 

contracts required TLS to “provide all personnel, equipment (i.e., required vehicles), 

supplies, transportation, tools, materials, supervision, other items, and other ancillary 

non-personal services necessary to deliver” the aviation fuel (id. at 28). The fuel was 

to be delivered by “mobile cold fueling” into designated Afghan Air Force (AAF) and 

Special Mission Wing (SMW) aircraft (id.) Mobile cold fueling was defined as “the 

mobile fueling (by truck) of static aircraft with engines not running,” and is also 

known as “direct to tail” fueling (id.). The contracts further required TLS to deliver 

the fuel on a “Free on Board (FOB) Destination Basis” and to maintain an effective 

supply chain to ensure an uninterrupted fuel supply (id. at 28-29). The contractor was 

responsible for “all aspects of supply chain management, from acquisition of the 

aviation fuel from refineries or pipeline terminals . . . and delivery into aircraft 

refueling vehicles at the AAF and SMW locations (id. at 29).” The contracts priced 

the fuel by the liter (id. at 3). 

1

 All six contracts have similar language. For ease of reference, we cite only to 

Contract No. W91B4N18D2005. We also note the government’s Rule 4 file is 

Bates numbered with a six-digit number preceded by “Army.” Here, we delete 

the prefix and the leading zeros. 
3 

3. The contracts incorporated by reference FAR 52.212-4, CONTRACT 

TERMS AND CONDITIONS – COMMERCIAL ITEMS (JAN 2017), which reads in 

pertinent part: 

(l) Termination for the Government’s convenience. The 

Government reserves the right to terminate this contract, or 

any part hereof for its sole convenience. In the event of 

such termination . . . [Prong 1] the Contractor shall be paid 

a percentage of the contract price reflecting the percentage 

of the work performed prior to the notice of termination, 

plus [Prong 2] reasonable charges the Contractor can 

demonstrate . . . have resulted from the termination. 

(Id. at 8). The contracts also required TLS to “comply with all applicable 

updated/superseded regulations, publications, manuals, and local policies and 

procedures identified in this SOW . . . that are incorporated into the resulting contract” 

(id. at 29). 

Acceptance and Payment 

4. The contract’s SOW, Section 6.14, Acceptance, provided: 

Until acceptance, risk of loss or damage shall remain with 

the Contractor. The ANDSF delivery receiving activity 

shall provide written acceptance of the fuel on the delivery 

ticket, by certifying the delivery and signing the delivery 

ticket to affirm the amount of fuel actually delivered. . . . 

Upon signature by the ANDSF delivery activity, the fuel is 

accepted, in the amount identified on the delivery ticket. 

(Id. at 35) 

5. The contract’s SOW, Section 6.15, Invoicing, required the contractor to 

submit invoices for payment including certified and signed delivery tickets showing 

the amount of fuel delivered into the aircraft (id.). 

Security and Facility Access 

6. The contract’s SOW, Section 4, SCOPE, provided:

The Government will identify a point of contract (POC) 

at contract award that the Contractor shall coordinate with 

to work to arrange a potential secure area for refueling 
4

vehicles, . . . to obtain required facility access at the exact 

site location, and to identify any airport/airfield permits 

that are required.

(Id. at 29)

7. The contract’s SOW, Section 13, SECURITY REQUIREMENTS, specified:

13.1. The Contractor shall be responsible for security of 

all vehicles, personnel and aviation fuel being transported 

under this contract. The Contractor shall provide its own 

security IAW all applicable GIRoA laws/regulations and 

Department of Defense/CENTCOM/U.S. ForcesAfghanistan (U.S. FOR-A)/Resolute Support, regulations, 

policies, and Fragmentary Orders (FRAGO). . . .

13.2. Delivery Point Security Requirements: Force 

protection requirements are in full effect at all times under 

this contract. There may be waiting periods outside the 

gates of all delivery sites (AAF or SMW). Security 

measures change according to perceived threat levels, and 

may irregularly affect wait times outside of installation 

entry points.

(Id. at 39-40) TLS engaged the Afghanistan Ministry of the Interior National Public 

Protection Force for its security (compl. ¶ 26).

8. The contract also included CENTCOM Joint Theater Support Contracting 

Command (C-JTSCC) clause 5152.225-5916, MANDATORY ELIGIBILITY FOR 

INSTALLATION ACCESS (OCT 2015). That clause provides, in part:

(a) U.S. and Coalition Commanders possess inherent 

authority to maintain law and order, provide security, and 

impose discipline necessary to protect the inhabitants of 

U.S. and/or Coalition installations, U.S. and Coalition 

personnel operating outside of installations, and U.S. or 

Coalition-funded developmental projects in Afghanistan. 

This authority allows commanders to administratively and 

physically control access to installations and/or project 

sites . . . . A commander’s inherent force protection (FP) 

authority is independent of an agency’s contracting 

authority, and it may not be superseded by any contractual 

term or provision.
5 

(R4, tab 1 at 25) 

9. The United States Central Command established the overall force protection 

requirements in Afghanistan (app. supp. R4, tab 107 at 64). The force protection 

requirements concerned security at individual locations including vehicle and 

personnel searches (id. at 62-63). Force protection requirements may also include 

enforcing waiting periods for access to the facilities (id. at 70-71). Contractors had to 

comply with those requirements (id. at 62). Commanders at the individual facilities 

could make changes to the force protection posture based on individual threats (id. 

at 65). 

10. The contract’s SOW Section 20.1., Services, provides: 

The Government will provide POC [Point of Contact] 

information for each of the locations identified in 

Paragraph 9, as well as POCs for each fuel delivery 

Contractor with which the Contractor shall coordinate 

quality assurance testing as described in Paragraph 6.2. 

The KO [Contracting Officer] and COR [Contracting 

Officer Representative] will also coordinate and assist the 

Contractor in the event of any denial of access to ANDSF 

facilities that interferes with contract performance. 

(R4, tab 1 at 41) 

Risk of Loss 

11. The contract’s SOW, Section 14, Risk of Loss, states: 

Risk of loss or damage shall remain with the Contractor, 

until, and will pass to U.S. Government upon, delivery of 

the aviation turbine fuel products into AAF or SMW 

aircraft. 

14.1. The Contractor bears all risk and responsibility for 

loss or damage to equipment and personal injury or death 

of its employees, agents or subcontractors, or any member 

of the public, if such damage, personal injury or death 

arises from or relates to any performance under this 

contract. 

14.2. The Contractor is solely responsible for obtaining 

adequate insurance to cover the risks discussed herein. 
6 

14.3. The U.S. Government will not reimburse the 

Contractor for claims stemming from loss or damage to 

product or equipment or personal injury or death of 

employees, agents, or subcontractors, or any member of 

the public. 

(Id. at 40) 

12. The contract included C-JTSCC clause 5152.225-5915, CONTRACTOR 

ACCOUNTABILITY AND PERSONNEL RECOVERY (JUN 2014). The clause 

states, in part: 

Contract performance may require work in dangerous or 

austere conditions. Except as otherwise provided in the 

contract, the contractor accepts the risks associated with 

required contract performance in such operations. 

(Id. at 24) 

Contract Modification 

13. The Army modified the contracts in June and July 2020 to implement 

minimum fuel reserve and minimum bowser quantity requirement changes, provide 

associated firm-fixed price changes, and incorporate an updated narrative to the SOW 

implementing the minimum fuel reserve and minimum bowser quantity requirements 

(R4, tabs 25-30). 

United States Withdrawal from Afghanistan 

14. The United States and the Taliban, signed the “Agreement for Bringing 

Peace to Afghanistan” in Doha, Qatar on February 29, 2020 (“Doha Agreement”, 

available at https://www.state.gov/wp-content/uploads/2020/02/Agreement-ForBringing-Peace-to-Afghanistan-02.29.20.pdf). 

15. On April 14, 2021, pursuant to the Doha Agreement, President Joseph R. 

Biden announced that all remaining United States military personnel would leave 

Afghanistan by September 11, 2021, which was later changed to August 31, 2021. 

See Special Inspector General for Afghanistan Reconstruction Quarterly Report to the 

United States Congress, October 30, 2021, (SIGAR Report) at 3 available

at https://www.sigar.mil/pdf/quarterlyreports/2021-10-30qr.pdf. 

16. The U.S. Forces-Afghanistan (USFOR-A) formally began the final phase 

of the withdrawal from Afghanistan on May 1, 2021 (id. at 68). TLS provided a series 

of Serious Incident Reports (SIR) between August 6 and August 18, 2021, regarding 
7 

the Taliban takeover of various sites and lost fuel and assets (See, e.g., R4, tab 31). 

These reports were informational in nature and did not request any government 

response (id.). 

17. On August 6, 2021, TLS informed the Army that they were exploring 

airlifting fuel into Shorab since the Taliban controlled all the road routes (app. supp. 

R4, tab 16 at 2). The next day, the Army’s contracting officer representative asked

TLS whether they could airlift fuel into Shorab since fuel was becoming an urgent 

need (id. at 1). The record does not indicate whether TLS airlifted fuel into Shorab, 

but apparently, TLS moved a fuel bowser by air from Kabul to Maimana on 

August 11, 2021, at the Army’s request (app. supp. R4, tab 129 at 5). 

18. On August 15, 2021, Taliban fighters occupied the presidential palace in 

Kabul and the GIRoA collapsed (SIGAR Report at 72). The Taliban took over most of 

Afghanistan and the ANDSF facilities relevant to these contracts within days (compl. 

¶ 4). The Taliban also confiscated all of TLS’ fuel and transportation, storage and 

delivery equipment and assets at all the relevant facilities and TLS’s regional fuel 

terminals (id.). 

Contract Termination and Appeal 

19. The government terminated the contracts for convenience on September 2, 

2021, with an effective date of September 7, 2021 (R4, tabs 8a, 12).2

20. On December 28, 2021, TLS provided the government with a termination 

settlement proposal (TSP) under FAR 52.212-4(l), the contract’s commercial items 

termination for convenience clause (R4, tab 13a). The TSP requested a payment of 

$14,189,284.95 consisting of $1,264,767.77 for “On-Base Fuel,” $4,918,980 for 

“Terminal Fuel,” $6,980,600 for “Equipment,” $980,000 for “Office,” $26,126 for 

“Costs of Preparing TSP” and $44,937.18 for “Improperly Rejected Invoices” (id. 

at 20).3

 TLS provided a certification pursuant to DFASRS clause 252.243-7002, 

REQUESTS FOR EQUITABLE ADJUSTMENT, with its TSP (id. at 20-21). 

2

 The contracting officer’s termination notice stated it was issued in accordance with 

FAR Part 49 and FAR 52.249-2. The contracts, however, did not contain those 

provisions. Rather, the contracts contained FAR 52.212-4, the terms and 

conditions for commercial item contracts. The parties agree the FAR 52.212-4(l) 

commercial items termination provisions control the resolution of TLS’s 

termination costs (app. resp. at 21-22; gov’t reply at 34-35). 

3

 Appellant apparently did not include in its claim calculation the costs for preparing 

the TSP. The total claimed TSP amount including the costs for preparing the 

TSP calculates to $14,215,410.95 and not $14,189,284.95. 
8 

21. On February 15, 2022, the contracting officer issued a contracting officer’s 

final decision (COFD) responding to TLS’ TSP and certified claim (R4, tab 22a). The 

contracting officer determined TLS was entitled to be paid for its unpaid invoices in 

the amount of $2,201,966.56; disputed invoices in the amount of $44,937.18; and TSP 

preparation costs in the amount of $26,126 (id. at 4-5).4

 The contracting officer 

further determined TLS was not entitled to be paid for the undelivered on-base fuel, 

fuel located at the terminals and the lost equipment since they belonged to TLS and 

not the United States at the time of their loss (id. at 5). 

22. On May 16, 2022, TLS appealed the contracting officer’s COFD to the 

Board. Appellant’s complaint lists five counts: (I) breach of contract for failure to pay 

for delivered fuel; (II) breach of contract for failure to provide adequate security and 

facility access; (III) breach of implied duties of good faith and fair dealing; (IV) breach 

of contract for failure to pay for work completed and reasonable charges upon 

termination for convenience; and (V) increased costs resulting from a constructive 

change (compl. ¶¶ 74-101). 

23. On April 3, 2023, the government filed its motion for summary judgment 

requesting the Board deny appellant’s complaint and request a stay of the Board 

proceedings (gov’t mot. at 1-2). On April 24, 2023, the Board granted the parties’ 

joint request to suspend discovery for 90-days. On May 8, 2023, the Board granted the 

parties’ joint proposed schedule for briefing and limited discovery on the 

government’s motion. On July 5, August 7 and October 16, 2023, the Board granted 

the parties’ additional joint requests to further extend the briefing and limited 

discovery to allow appellant time to conduct discovery to respond to the motion. On 

October 23, 2023, appellant filed its response to the government’s summary judgment 

motion and filed a cross-motion for partial summary judgment. The parties filed 

additional replies and sur-replies. 

DECISION 

I. The Parties’ Contentions 

 TLS claims it is entitled to its costs for the loss of fuel, delivery equipment, and 

other assets at various locations throughout Afghanistan due to the collapse of the 

GIRoA and takeover by the Taliban because the government breached the contract by 

failing to pay for the delivered fuel (compl. ¶¶ 74-79), provide adequate security and 

facility access (compl. ¶¶ 80-84) and breached its covenant of good faith and fair 

dealing (compl. ¶¶ 85-90). TLS also claims the government constructively changed 

4

 The record is unclear as to whether the government paid TLS for these allowed 

amounts since TLS apparently had trouble establishing a non-Afghan bank 

account (R4, tab 24). 
9 

the contract (compl. ¶¶ 96-101). Finally, appellant asserts the government failed to 

pay for the completed work and reasonable charges resulting from the termination for 

convenience (compl. ¶¶ 91-95). 

 The government contends the Board should grant its motion for summary judgment 

because the undisputed facts show it did not breach the contract and did not constructively 

change the contract (gov’t mot. at 7-8). Moreover, the government asserts the Board 

should grant its request for summary judgment based upon its affirmative defenses of 

sovereign acts, third-party action, and assumption of risk (id. at 2). 

 In its response, TLS first opposes the government’s motion asserting there are 

many disputed issues of material facts that preclude entry of summary judgment (app. 

resp. at 2). TLS next claims the government’s motion should be denied because it has 

not had the opportunity to conduct full discovery (id. at 3). Finally, TLS asserts its 

own entitlement as a matter of law to be paid for the fuel stored at the various facilities 

and terminals and for its equipment under the commercial termination for convenience 

clause since the contract included a minimum fuel requirement (id.). The Army 

replies that it is not required to pay appellant for the lost fuel and equipment under the 

commercial termination for convenience clause since the Taliban took the fuel and 

equipment before the termination for convenience occurred and the contract placed the 

risk of loss on TLS (gov’t reply at 34-35). 

 We first address issues raised by the government’s motion for summary 

judgment and then appellant’s motion for partial summary judgment on the 

termination for convenience costs. 

II. Summary Judgment Standard 

 “Summary judgment is appropriate if there is no genuine issue as to any 

material fact and the moving party is entitled to judgment as a matter of law.” First 

Commerce Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir. 2003); FED. R. 

CIV. P. 56(a). A material fact is one that makes a difference in the outcome of the 

case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). “The moving 

party bears the burden of establishing the absence of any genuine issue of material fact 

and all significant doubt over factual issues must be resolved in favor of the party 

opposing summary judgment.” Mingus Constructors, Inc. v. United States, 812 F.2d 

1387, 1390 (Fed. Cir. 1987) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 

(1962)). 

 While the movant must demonstrate there is no “genuine issue for trial,” the 

nonmovant must “make a showing sufficient to establish the existence of an element 

essential to [its] case and on which [it] will bear the burden of proof at trial. Celotex 

Corp. v. Catrett, 477 U.S. 317, 322 (1986). A non-movant seeking to defeat summary 
10 

judgment by suggesting conflicting facts, “must set forth specific facts showing that 

there is a genuine issue for trial.” Liberty Lobby, Inc., 477 U.S. at 248 (quoting First 

Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)). “[M]ere denials or 

conclusory statements are insufficient.” SRI Int’l v. Matushita Elec. Corp. of Am., 

775 F.2d 1107, 1116 (Fed. Cir. 1985) (citing Barmag Barmer Maschinenfabrik AG v. 

Murata Machinery, Ltd., 731 F.2d 831, 836 (Fed. Cir. 1984)). Finally, the evidence 

must be viewed in the light most favorable to the party opposing the motion. Crown 

Operations Int’l, Ltd. V. Solutia Inc., 289 F.3d 1367, 1375 (Fed. Cir. 2002). 

III. Appellant Has Not Shown A Need For Additional Discovery 

 Appellant first contends the Board should deny the Army’s summary judgment 

motion because the Army failed to provide information and/or documents responsive 

to appellant’s discovery requests that appellant needs to respond to the motion (app. 

resp. at 14-16). Appellant correctly notes the Federal Rules permit the Board to deny a 

motion for summary judgment if the non-movant has not had the opportunity to 

conduct necessary discovery. See Board Rule 7(c); Fed. R. Civ. P. 56(d); Dunkin 

Donuts of America, Inc. v. Metallurgical Exoproducts Corp., 840 F.2d 917, 919 (Fed. 

Cir. 1988). The rule, however, specifically states the nonmovant must show “by 

affidavit or declaration that, for specified reasons, it cannot present facts essential to 

justify its opposition . . . .” Fed. R. Civ. P. 56(d). “Thus, a party opposing summary 

judgment cannot obtain the protection of Rule 56(d) ‘by simply stating that discovery 

is incomplete.’” Odyssey International, Inc., ASBCA Nos. 62062, 62279, 21-1 BCA 

¶ 37,902 at 184,071 quoting Libertarian Party of N.M. v. Herrera, 506 F.3d 1303, 

1308 (10th Cir. 2007). Rather, the party opposing the motion must “state with 

specificity how the additional material will rebut the summary judgment motion.” 

Libertarian Party of N.M., 506 F.3d 1308-09 citing Ben Ezra, Weinstein & Co. v. Am. 

Online Inc., 206 F.3d 980, 987 (10th Cir. 2000). Here, appellant has provided no such 

support. 

 Rather, appellant claims the Army failed to provide it with correspondence 

within the Army and between the Army and ANDSF about “security of the facilities, 

changes in force protection requirements, threats to facilities, need for continued 

delivery of fuel to those facilities as well as what happened to the fuel after TLS’ 

employees were removed from the facilities” (app. resp. at 15-16). The government 

replies those requested documents are “irrelevant for the purposes of the motion for 

summary judgment” (gov’t reply at 34). We agree with the government. Any 

communications between the Army and GIRoA, or within the Army, will not change 

the plain unambiguous contract language or impact the government’s affirmative 

defenses. Appellant has failed to show how the additional requested discovery will 

lead to facts necessary for its defense of the government’s motion. 
11 

IV. The Government Did Not Beach the Contract 

 

A. Delivered Fuel 

 To prevail on a breach of contract claim, TLS must show: (1) a valid contract 

between the parties; (2) a government obligation or duty arising out of the contract; 

(3) a breach of that duty; and (4) damages caused by that breach. Trident Engineering 

& Procurement, P.C., ASBCA Nos. 60541, 62144, 23-1 BCA ¶ 38,351 at 186,235; 

Lockheed Martin Integrated Sys., Inc., ASBCA Nos. 59508, 59509, 17-1 BCA 

¶ 36,597 at 178,284 citing San Carlos Irrigation & Drainage Dist. v. United States, 

877 F.2d 957, 959 (Fed. Cir. 1989). 

 In Count I of its complaint, TLS alleges the government breached the contracts 

by failing to pay for what it refers to as “delivered” fuel (compl. ¶¶ 74-79). This is 

somewhat confusing because in the complaint’s prayer for relief, TLS seeks payment 

only for pre-positioned fuel stored at the ANDSF facilities and regional terminals 

(compl. prayer for relief). TLS apparently seeks to recharacterize this fuel as delivered 

fuel despite lacking any evidence of actual delivery. 

 The government responds it did not breach the contracts because it paid 

appellant for all the fuel delivered under the contracts including $2,201,966 for unpaid 

verified invoices and $44,937 for rejected invoices (gov’t mot. at 18).5

 The 

government admits it did not pay TLS for the on-base and terminal fuel because it had 

no duty to pay TLS for those items (id.). Moreover, the government contends it has no 

responsibility to pay for those items since their loss resulted from third party actions 

(id. at 19). 

1. The Contracts Defined “Delivery” To Be Fuel Delivered Into the Aircraft 

 The contracts incorporated by reference FAR 52.212-4, CONTRACT TERMS 

AND CONDITIONS – COMMERCIAL ITEMS (JAN 2017) (SOF ¶ 3). The FAR 

52.212-4(i) payment provisions required the government to make payment to TLS for 

items that were “accepted” and “delivered” to the destination set forth in the contract. 

The contracts specified delivery and acceptance occurred when TLS delivered the fuel 

into the aircraft and the ANDSF delivery activity signed off on the delivery ticket 

indicating the actual delivered fuel amount (SOF ¶ 4). Based on the plain contract 

5

 As previously noted, the contracting officer determined these were allowable costs in 

his final decision, but the record is unclear whether the government has actually 

paid TLS for these allowed costs (SOF ¶ 21). 
12

language, fuel that is pre-positioned or stored in a regional terminal has not been 

delivered and accepted.6

TLS does not dispute the government paid it for the fuel delivered into the 

designated aircraft but rather contends all the fuel delivered to the ANDSF aircraft 

after the Taliban takeover and all the fuel maintained at the facilities and regional 

terminals should be “deemed delivered and accepted” (compl. ¶ 45). TLS maintains it 

became impossible for it to obtain the confirmation of acceptance and fuel delivery 

into the ANDSF aircraft after the Taliban takeover (id.). Moreover, TLS contends all 

the fuel should be determined to be delivered and accepted since the contract required 

TLS to preposition the fuel to maintain an effective supply chain thereby ensuring an 

uninterrupted fuel supply (id). In the alternative, TLS claims delivery of the fuel was 

completed and accepted by ANDSF the moment the Taliban took over the facilities 

and denied TLS access (compl. ¶ 46).

Appellant has the burden of proof to prove government acceptance. Chloeta 

Fire, LLC, ASBCA No. 59211, 15-1 BCA ¶ 36,167 at 176,485. Here, appellant has 

presented no evidence that the Afghan government accepted the fuel delivered into any 

aircraft after the Taliban takeover or any prepositioned fuel. The government had no 

obligation to pay TLS for undelivered fuel.

The parties do not dispute that the Taliban confiscated the undelivered fuel

when it took over the facilities (SOF ¶ 18). The Federal Circuit has long held “absent 

fault or negligence or unqualified warranty of the part of its representatives, the 

Government is not liable for damages resulting from the action of third parties.” 

Oman-Fischbach Int’l (JV) v. Pirie, 276 F.3d 1380, 1385 (Fed. Cir. 2002); see also 

Zafer Taahhut Insaat ve Ticaret A.S. v. United States, 833 F.3d 1356, 1364 (Fed. Cir. 

2016) (addressing Pakistan’s closure of its border with Afghanistan, delaying 

appellant’s delivery of materials, and holding “the U.S. government is not responsible 

for the sovereign acts of a foreign nation”); Omran, Inc., ASBCA No. 63414, 24-1 

BCA ¶ 38,572 at 187,477 (government not liable for contractor’s loss of construction 

equipment since the Taliban’s seizure of that equipment was not foreseeable); Piril 

Insaat Tic. Bilgisayar Elek. Buro Donanim Ltd. Sti., ASBCA No. 55605, 08-2 BCA 

¶ 34,010 at 168,187 (government not liable for truck damages since the hostile rifle 

fire that damaged the truck was not an act of the government). Here, the Taliban, a 

third-party, took TLS’s undelivered fuel and equipment. The government is not 

responsible for the Taliban’s actions.

6 Similarly, the contracts required TLS to deliver the fuel on “a Free on Board (FOB) 

Destination Basis (SOF ¶ 2). FAR 2.101 provides, “F.o.b. destination means 

free on board at destination: i.e., the seller or consignor delivers the goods on 

seller’s or consignor’s conveyance at destination.” Under the contracts, the 

delivery destination was the aircraft (SOF ¶ 2).
13 

2. The Contracts Allocated the Risk of Loss to TLS 

 The commercial items clause further provided: 

(j) Risk of loss. Unless the contract specifically provides 

otherwise, risk of loss or damage to the supplies provided 

under this contract shall remain with the Contractor until, 

and shall pass to the Government upon: . . . 

(2) Delivery of the supplies to the Government at the 

destination specified in the contract, if transportation is 

f.o.b. destination. 

FAR 52.212-4(j)(2) 

 Here, the contract specified fuel delivery occurred when TLS pumped the fuel 

into the aircraft (SOF ¶ 2). Accordingly, FAR 52.212-4(j)(2) placed the risk of loss on 

appellant until it delivered the fuel. See KAL M.E.I. Manufacturing & Trade Ltd., 

ASBCA Nos. 44367, 45531, 45532, 94-1 BCA ¶ 26,582 at 132,258 (risk of loss 

remained with the contractor until delivery of the supplies to the government at the 

destination on a contract with a f.o.b. destination clause); Donaldson Enterprises, Inc., 

ASBCA No. 57927, 13-1 BCA ¶ 35,368 at 173,562 (finding FAR 52.212-4(j)(2) 

expressly placed the risk of loss on the contractor up until the time the bailed rock was 

redelivered to the government). 

Similarly, the contract’s SOW also clearly specified the risk of loss would 

remain with the contractor until acceptance. SOW Section 6.14, Acceptance, stated that 

“[u]ntil acceptance, risk of loss or damage shall remain with the Contractor” (SOF ¶ 4). 

In addition, SOW Section 14, Risk of Loss, provided, “[r]isk of loss or damage shall 

remain with the Contractor, until, and will pass to U.S. Government upon, delivery of 

the aviation turbine fuel products into AAF or SMW aircraft” (SOF ¶ 11). 

 TLS contends these contractual risk of loss provisions do not apply in this case 

because they are limited to those losses occurring during contract performance, “e.g., 

from issues involving TLS’ transportation, storage or handling of the fuel” (app. resp. 

at 18). TLS argues the parties intended the risk of loss provisions “to make sure that TLS 

took the necessary measures to get fuel from its origins to the relevant facilities and 

terminals to prevent Army paying for fuel damaged or pilfered along the way to the 

relevant facilities” (id.). TLS points to SOW Section 14.1 to support its contention (id.). 

 SOW Section 14.1 provides TLS would bear “all risk and responsibility for loss or 

damage to equipment and personal injury or death . . . if such damage, personal injury or 

death arises from or relates to any performance under this contract” (SOF ¶ 11). TLS 
14 

maintains the fuel and equipment losses in this case did not occur during contract 

performance but rather from their seizure by the Taliban (app. resp. at 18). TLS’s 

interpretation of this contract loss provision is not supported by the contract’s plain 

language. 

SOW Section 14.1 addresses the loss or damage to equipment and personal 

injury or death but not loss of fuel (SOF ¶ 11). When read as a whole, Section 14 

clearly places the risk of loss of fuel on the contractor until delivery. McAbee 

Construction, Inc. v. United States, 97 F.3d 1431, 1434-35 (Fed. Cir. 1996) (contract 

must be read as a whole to harmonize and give meaning to all parts). The initial 

language in SOW Section 14 states, “[r]isk of loss. . . shall remain with the Contractor, 

until . . . delivery of the aviation turbine fuel products into AAF or SMW aircraft” 

(SOF ¶ 11). SOW Section 14.2 places the responsibility upon the contractor to obtain 

adequate insurance to cover the risk of loss (id.). Further, SOW Section 14.3 states 

that the United States will not pay the contractor for claims stemming from loss or 

damage to product or equipment (id.). 

 Finally, the contracts’ SOW specifically notified TLS that it may be required to 

perform the contract “in dangerous or austere conditions” and that it was accepting 

“the risks associated with the required contract performance in such operations” 

(SOF ¶ 12). TLS had clear notice that it was performing the contract in a dangerous 

environment that could result in the loss of both fuel and equipment due to hostile 

action. TLS accepted that risk upon contract award. Omran, Inc., 24-1 BCA ¶ 38,572 

at 187,477 (contractor accepted potential loss of its equipment and materials to the 

Taliban at contract award). 

 TLS has failed to present sufficient evidence upon which a reasonable 

factfinder could find that there are material facts in dispute that the government 

breached the contract by failing to pay TLS for fuel delivered to aircraft after the 

Taliban takeover, the pre-positioned fuel stored at the applicable facilities and the fuel 

held in the regional terminals. The government is entitled to summary judgment on 

this issue. 

B. Security and Access 

 In Count II of its complaint, TLS alleges the government breached the contract 

by failing to provide adequate security and facility access (compl. ¶¶ 80-84). 

1. The Government Had No Contractual Duty To Provide Security 

 TLS contends the government breached its duty of providing a secure area when 

it allowed the Taliban to take over the facilities and equipment (compl. ¶¶ 81-82). 
15

Appellant first asserts a material factual dispute exists concerning the Army’s 

obligation to provide security (app. resp. at 2).7

 Appellant, however, does not cite to 

any specific material disputed facts but largely relies upon legal arguments interpreting 

the various contractual provisions. The interpretation of a government contract is a 

question of law not fact. Triple Canopy, Inc. v. Sec’y of Air Force, 14 F.4th 1332, 

1338 (Fed. Cir. 2021). 

The contracts’ SOW Section 13.1, SECURITY REQUIREMENTS, placed on 

TLS the responsibility “for security of all vehicles, personnel and aviation fuel being 

transported under this contract” (SOF ¶ 7). That provision further required TLS to 

provide its own security in accordance with all applicable GIRoA and United States 

laws, regulations, and orders (id.). TLS engaged the Afghanistan Ministry of the 

Interior National Public Protection Force for its security (id.).

TLS contends these security requirements placed the security responsibility upon 

it only during the transportation of the fuel to the relevant facilities (app. resp. at 5). 

TLS claims the facilities were the delivery point (id.). Once the fuel arrived at the 

facilities, TLS maintains the security obligation passed to the government (id.). TLS 

points to SOW Section 13.2 in support of this contention (id.). That provision, entitled 

“Delivery Point Security,” indicated force protection requirements were in effect under 

the contract and there could be waiting periods outside the facility gates (SOF ¶ 7.). 

TLS contends that since the Army established the overall force protection requirements, 

the Army warranted the facilities would be a secure area (app. resp. at 5). TLS 

misreads the security provisions.

The contracts specify the contractual delivery point is delivery of the fuel into 

the aircraft and not delivery to the facilities (SOF ¶ 2). As previously discussed, TLS 

remained the responsible party until it delivered the fuel into the aircraft. Likewise, 

TLS’s transportation obligations continued until it physically delivered the fuel into 

the aircraft.

SOW Section 13.2 does not alter TLS’s contractual responsibilities. That 

provision simply states force protection requirements were in effect. TLS correctly 

notes the Army established the overall force protection requirements in Afghanistan 

(SOF ¶ 9). The force protection requirements included setting out the procedures for 

entering and exiting facilities (id.). Local commanders at individual facilities could 

modify the force protection posture based upon individual threats at their locations

7 Confusingly, appellant in the next sentence contends the “[u]ndisputed facts prove” 

the army had a contractual obligation “to provide adequate security to TLS and 

its personal and equipment at the facilities” (app. resp. at 2).
16 

(id.). Contrary to TLS’ conclusion, those requirements did not warrant that the 

United States guaranteed the security for any facility. 

 TLS also claims the government breached its contractual security obligations by 

failing to provide adequate information and warning about the Taliban takeover (app. 

resp. at 6). TLS contends SOW provision 13.2 imposed upon the Army a requirement to 

notify it of imminent threats (id.). TLS claims it could have taken action to mitigate its 

damages if the government had notified it of the Taliban threat (id.). The government 

correctly notes this provision contains no such explicit or implicit notification 

requirement (gov’t reply at 28). 

 The contract terms clearly placed the security responsibility upon TLS and not 

the government. We conclude the government did not breach the contract by failing to 

provide adequate security because no such contractual duty existed. 

2. The Government Had No Contractual Duty To Provide Access 

 TLS also contends the government breached its contractual duty of providing it 

access to the relevant facilities (compl. ¶ 81). Appellant again first contends a material 

factual dispute exists concerning the Army’s failure to provide TLS access but does 

not cite to any specific disputed facts in the record (app. resp. at 6-7). Appellant 

instead asserts the contract’s SOW sections 4 and 20.1 placed an obligation upon the 

government to provide TLS access to the facilities (id. at 6). Similar to the security 

question, whether the contracts required the government to provide TLS access to the 

facilities is a legal question dependent upon the contract terms. 

 The contracts’ SOW Section 4 required the government to identify a contact 

person for TLS to coordinate with to, among other things, obtain the required facility 

access (SOF ¶ 6). That provision did not guarantee facility access. Similarly, 

Section 20.1 indicated the government would coordinate and assist TLS in the event of 

any access denial to the facilities that interfered with contract performance (SOF ¶ 10). 

This section likewise did not guarantee access. 

 The contracts also included C-JTSCC 5152.225-5916, MANDATORY 

ELIGIBILITY FOR INSTALLATION ACCESS (OCT 2015) (SOF ¶ 8). That clause 

specifically notified TLS that the installation commander had the inherent authority to 

control installation access (id.). The clause further notified TLS that the commander’s 

authority was independent from the government’s contractual authority (id.). “A 

determination of installation access is a matter of inherent command authority and is 

not at the discretion of the contracting officer or this Board.” Sang Kash Company, 

ASBCA No. 60532, 19-1 BCA ¶ 37,373 at 181,703 (refusing to question a military 

commander’s revocation of base access). The installation commander’s decisions to 
17 

limit TLS’ employees’ access to some of the facilities did not result in a government 

contract breach. 

3. Sovereign Acts Defense 

 Even if the government had breached a contractual obligation to provide 

security or access to the facilities, the government correctly notes the sovereign acts 

defense would prevent any recovery (gov’t mot. at 8-10). “The sovereign acts doctrine 

provides that ‘the United States when sued as a contractor cannot be held liable for an 

obstruction to the performance of the particular contract resulting from its public and 

general acts as a sovereign.’” Conner Bros. Constr. Co. v. Geren, 550 F.3d 1368, 

1371 (Fed. Cir. 2008) (quoting Horowitz v. United States, 267 U.S. 458, 461 (1925). 

The United States’ withdrawal of its troops from Afghanistan made it impossible for 

the government to meet any contractual obligation to provide TLS security and access 

to the ANDSF facilities. Casitas Municipal Water Dist. v. United States, 543 F.3d 

1276, 1287 (Fed. Cir. 2008) (The government is excused from performance under the 

sovereign acts defense when the sovereign act renders the government’s performance 

impossible.) As such, the sovereign acts defense would excuse the government from 

any contractual breach if such a breach existed. 

 In this case, appellant does not dispute the United States decision to enter into 

the Doha Agreement with the Taliban and its decision to withdraw troops from 

Afghanistan were sovereign acts (app. resp. at 16). Appellant contends, however, that 

the Army’s failure to provide security or TLS employee’s access to the facilities both 

were a breach of the Army’s express contractual obligations and not subject to the 

sovereign acts defense (id. at 16-17). As discussed above, we conclude the Army had 

no contractual obligation to provide security or facility access to appellant. As such, 

application of the sovereign acts doctrine is not necessary since it requires that “the 

government acting as a contractor must have breached the contract.” StructSure 

Projects, Inc., ASBCA No. 62927, 23-1 BCA ¶ 38,416 at 186,680. 

C. Duty of Good Faith and Fair Dealing 

 In Count III of its complaint, TLS alleges the government breached its implied 

duty of good faith and fair dealing (compl. ¶¶ 85-90). The doctrine of good faith and 

fair dealing prohibits “interference with or failure to cooperate in the other party’s 

performance.” Labatte v. United States, 899 F.3d 1373, 1379 (Fed. Cir. 2018) 

(quoting Restatement (Second) of Contracts § 205 cmt. d (1981)). Pursuant to this 

implicit duty, each party’s obligations “include the duty not to interfere with the other 

party’s performance and not to act so as to destroy the reasonable expectations of the 

other party regarding the fruits of the contract.” Metcalf Construction Company, Inc., 

742 F.3d 984 at 991 (Fed. Cir. 2014) (quoting Centex Corp. v. United States, 395 F.3d 

1283, 1304 (Fed. Cir. 2005). The duty is “keyed to the obligations and opportunities 
18

established in the contract.” Lakeshore Engineering Services, Inc. v. United States, 

748 F.3d 1341, 1349 (Fed. Cir. 2014). See also Metcalf, 742 F.3d at 991-92 

(explaining the need to consider the contract’s allocation of risks and benefits in 

considering a claim of breach of the duty of good faith and fair dealing). The implied 

duty of good faith and fair dealing does not “expand a party’s contractual duties 

beyond those in the express contract or create duties inconsistent with the contract’s 

provisions.” Precision Pine & Timber, Inc., v. United States, 596 F.3d 817, 831 (Fed. 

Cir. 2010).

Appellant contends the government breached its duty of good faith and fair 

dealing by failing to provide it with information on the deteriorating security situation

in Afghanistan and by its failure to provide direction in response to the various 

submitted SIRs (compl. ¶ 87). Appellant also contends the government breached its 

duty by failing to cooperate with TLS in safeguarding the fuel (compl. ¶ 88). Appellant 

alleges these failures prevented TLS from taking the necessary actions to mitigate its 

losses (compl. ¶ 87). In addition, TLS asserts the Board should deny the government’s 

motion since a material factual dispute exists concerning the Army’s failure to meet its 

duty of good faith and fair dealing under the contracts (app. resp. at 11). 

In its summary judgment motion, the government argues appellant cannot 

establish any facts to support a breach of the duty of good faith and fair dealing (gov’t 

mot. at 19). The government contends it had no contractual duty to notify TLS of the 

deteriorating security situation and respond to TLS’ SIRs (id. at 20-21). The 

government points out the contracts did not require TLS to submit the SIRs, and TLS 

submitted those reports solely for informational purposes to notify the government 

when certain facilities were attacked and captured by the Taliban (id. at 20-22). The 

reports did not request the government take any actions (SOF ¶ 16). The government 

also contends TLS has provided no evidence indicating the government intentionally 

withheld security information from TLS that hindered its contract performance (gov’t 

mot. at 21).

We have previously held “[w]here the failure to take some positive action is 

alleged as a breach of the duty of cooperation, it must be shown that the action was 

necessary for performance of the contract, and the Government unreasonably failed to 

take the action.” Envtl. Safety Consultants, Inc., ASBCA No. 47498, 00-1 BCA 

¶ 30,826 at 152,145. TLS alleges the government failed to notify it of the deteriorating 

security situation in Afghanistan and failed to respond to the SIRs. Those actions, 

however, even if true, did not impact TLS’ ability to perform the contract. TLS 

appears to have submitted the SIRs for purely informational purposes to tell the 

government which facilities had fallen to the Taliban and the amount of lost fuel and 

equipment (SOF ¶ 16). The SIRs did not request any government action (id.). 
19 

 Moreover, the implied duty of good faith and fair dealing does not make the 

government responsible for third-party actions. Olympus Corp. v. United States, 

98 F.3d 1314, 1318 (Fed. Cir. 1996) (“While interference by the government with a 

contractor’s access to the work site may constitute a breach of the government’s duty 

to cooperate, the government is not responsible for third-party actions such as labor 

strikes that delay a contractor’s performance, absent a specific contractual provision.”) 

Here, the Taliban’s actions, and not any action or inaction by the government, 

prevented TLS from performing the contracts. 

 When the government is accused of breaching the duty of good faith and fair 

dealing, the Board will examine the reasonableness of the government’s actions, 

considering all the circumstances. SIA Construction, Inc., ASBCA No. 57693, 

14-1 BCA ¶ 35,762 at 174,986. Ordinarily, issues requiring a determination of 

whether a parties’ actions were reasonable cannot be disposed of by summary 

judgment (id.). In this case, however, appellant has identified no material facts 

indicating the government’s actions or inactions prevented TLS from performing its 

contractual duties. See Grow Life General Trading, LLC, ASBCA Nos. 60398, 60467, 

60887, 19-1 BCA ¶ 37,361 at 181,676 (An allegation the government breached its 

implied duty of good faith and fair dealing lacked merit because there was no evidence 

the government prevented the contractor from performing its duties). Under these 

circumstances, we conclude the government’s actions were reasonable. 

 As previously discussed, the contract itself allocated the risk of operating in a 

hostile environment to TLS. Whether the government failed to provide TLS with 

direction in response to the SIRs or updates on the pending security situation did not 

frustrate TLS’s ability to perform the contract. See Bell/Heery, a Joint Venture v. 

United States, 739 F.3d 1324, 1335 (Fed. Cir. 2014) (Court rejected contractor’s good 

faith and fair dealing claim finding the contract allocated the risks attending to 

securing the required state permits to the contractor and the government did not 

affirmatively interfere with the contractor’s dealings with the state agency); JAAAT 

Technical Services, LLC., ASBCA No. 62373, 22-1 BCA ¶ 38,086 at 184,965 

(rejecting contractors’ breach of the duty of good faith and fair dealing claim since it 

would impose upon the government a duty inconsistent with the contract provisions). 

Accordingly, based on the record, the government is entitled to summary judgment on 

this issue. 

V. Constructive Change

 In addition to its contract breach claims, TLS contends in Count V of its 

complaint that the government constructively changed the contracts (compl. ¶¶ 96-101). 

Appellant alleges the Army constructively changed the contract when the government 

and ANDSF denied TLS access to the relevant facilities, and the government and/or 

ANDSF took control of TLS’s facilities, fuel and equipment thereby abandoning the 
20

contractual fuel delivery and acceptance procedures (compl. ¶ 99). Appellant also 

alleges the government constructively changed the contracts when it failed to secure the 

facilities, fuel, and equipment (compl. ¶ 100). 

In its motion, the government contends appellant is not entitled to an equitable 

adjustment due to a constructive change because appellant did not perform any work 

beyond the contract requirements and the government did not order, expressly or 

impliedly, any additional work (gov’t mot. at 23-24). In its response to the 

government’s motion, appellant further suggests the government changed the contract 

by requiring fuel delivery by air on at least one occasion (app. resp. at 9). 

To recover for a constructive change, a contractor must prove (1) it performed 

work beyond the contract requirements; and (2) the government expressly or impliedly 

ordered the additional work. Bell/Heery, 739 F.3d at 1335; ANHAM FZCO, LLC, 

ASBCA No. 58999, 20-1 BCA ¶ 37,745 at 183,186. The contracts required TLS to 

deliver fuel into the aircraft (SOF ¶ 2). Appellant first suggests material factual 

disputes exist with regards to the constructive change as to (1) whether the Army 

provided the necessary security and/or access to the facilities; (2) the Army’s 

continued requirement for appellant to provide the fuel despite the deteriorating 

security situation; and (3) the Army’s requirement for TLS to deliver fuel and 

equipment by air to some facilities (app. resp. at 8-9). 

With regards to appellant’s first two contentions, the government correctly 

points out that even if true, they would not constitute constructive changes because 

appellant performed no additional work beyond the contracts’ requirements (gov’t 

mot. at 23). Appellant admits that its claim amounts result from its total loss of the 

fuel reserves and equipment and assets used to transport, store, and deliver the fuel and 

not increased costs resulting from work performed beyond the contracts’ requirements

(compl. ¶ 36).

Appellant further suggests the Army somehow constructively changed the 

contracts’ requirements when ANDSF changed the fuel delivery and acceptance 

procedures following the Taliban takeover (app. resp. at 10). It is well established that 

interference by a foreign government is not a constructive change. Kellogg Brown & 

Root Servs., ASBCA No. 59385, 20-1 BCA ¶ 37,656 at 182,832. Moreover, to prevail 

on its constructive change claim, TLS must show an authorized government 

representative required or compelled it to perform work beyond the contracts’

requirements. Environmental Chemical Corporation, ASBCA Nos. 59280, 60760, 

22-1 BCA ¶ 38,166 at 185,361. Appellant has not identified any explicit or implicit 

government action that required it to perform work beyond the contracts’

requirements. 
21 

 Finally, appellant suggests that on at least one occasion, the government 

constructively changed the contracts’ by requiring TLS to provide air transport to 

deliver fuel and equipment to some facilities (app. resp. at 9). Appellant cites to an 

email in which the Army contracting officer representative asks TLS whether they can 

do an air cargo lift since fuel is becoming an urgent need (SOF ¶ 17). While the 

record is unclear as to whether TLS airlifted any fuel into Shorab, the evidence 

suggests TLS moved another bowser by air allegedly at the Army’s request (id.). 

 Even if the Army requested TLS move a fuel bowser by air, however, that 

request would not have been a constructive change to the contracts. The contracts 

required TLS to provide all the necessary transportation to deliver the fuel into the 

aircraft on a FOB destination basis (SOF ¶ 2). The contract did not specify how TLS 

should transport that fuel to the facilities. An Army request to TLS to deliver fuel by 

air to the facilities would not be a change to the contracts’ requirements. 

 TLS did not perform work beyond the contracts’ requirements. Moreover, we 

find no evidence that the government either expressly or impliedly ordered any 

additional work. Accordingly, the government is entitled to summary judgment on 

this issue. 

VI. Termination for Convenience Costs 

 TLS also filed a cross-motion for partial summary judgment claiming it is entitled 

to receive compensation as part of its termination for convenience settlement costs for its 

lost fuel reserves and equipment (app. resp. at 20-22).8

 TLS claims the contracts 

required it to maintain a fuel reserve and equipment at each of the specified facilities and 

at the regional terminals to ensure an uninterrupted fuel supply (id. at 20-21). TLS 

further alleges the government did not give it the opportunity to remove the fuel and 

equipment before the Taliban takeover (id. at 22). As such, TLS claims the fuel reserves

and equipment at the facilities and regional terminals should be considered as part of its 

completed work under the contracts (id. at 21-22). 

 The government responds it is not responsible for paying appellant for any of 

its lost stored fuel or equipment costs as part of the termination settlement since the 

Taliban seized those items prior to the termination and appellant bore that risk of loss 

(gov’t reply at 35). The government contends those losses resulted from the actions of 

a third-party and not the termination (id.). 

 The contracts incorporated the commercial termination clause at FAR 52.212-

4(l) (SOF ¶ 3). Our previous decisions have analyzed this clause as providing for 

8

 The Board notes the government has not filed a cross-motion for summary judgment 

on the termination for convenience issue. 
22

reimbursement under two prongs: the first prong being for the percentage of work 

performed prior to the termination notice and the second prong for costs resulting from 

the termination including settlement costs. See SWR, Inc., ASBCA No. 56708, 

15-1 BCA ¶ 35,832 at 175,223-24; Zahra Rose Construction, ASBCA No. 62732, 

22-1 BCA ¶ 38,111 at 185,111. 

Under the first prong, TLS is limited to recovering the price of the delivered 

fuel prior to the termination as the work performed under the contracts. See Hermes 

Consolidated, Inc., d/b/a Wyoming Refining Co., ASBCA Nos. 52308, 52309, 

02-1 BCA ¶ 31,767 at 156,899 (recovery limited to the price of fuel delivered plus 

“reasonable charges” under a fuel supply contract because the termination for 

convenience clause permitted the government to terminate any portion of the 

guaranteed minimum quantity and be responsible only for the price of delivered fuel); 

ACLR, LLC v. United States, 157 Fed. Cl. 324, 333 (2021) (prong one looks to the 

amount of payment the contractor is entitled to be paid under the terms of the 

contract). Under the contracts, the government was responsible for paying TLS for 

delivered fuel (SOF ¶ 4). The government paid TLS for that fuel (SOF ¶ 21). As 

such, TLS summary judgment motion seeking a determination that its fuel reserves

and equipment at the facilities and regional terminals be considered as part of its 

completed work under the contracts is denied.

The commercial termination for convenience clause, however, also provides 

recovery for any reasonable expenses resulting from the termination including costs

incurred in preparing to perform the contracts. See SWR, Inc., 15-1 BCA ¶ 35,832 

at 175,227-28 (contractor entitled to recover a deposit for fabric structures made prior 

to the termination for convenience while preparing to perform the contract); Zahra 

Rose Construction, 22-1 BCA ¶ 38,111 at 185,111 (contractor entitled to recover its 

costs incurred in leasing fuel trucks in preparation for performing the contract). As we 

explained in SWR, FAR 52.212-4(l) provides for the “recovery of those charges 

incurred that ‘do not relate to work completed’ but should be reimbursed to fairly 

compensate the contractor whose contract has been terminated.” SWR, 15-1 BCA 

¶ 35,832 at 175,223. This principle is consistent with the overall purpose of a 

termination for convenience settlement which is to fairly compensate the contractor 

and to make the contractor whole for the costs incurred in connection with the 

terminated work. Id. (citing Nicon, Inc. v. United States, 331 F.3d 878, 885 (Fed. Cir. 

2003). “A contractor is not supposed to suffer as the result of a termination for 

convenience of the Government, nor to underwrite the Government’s decision to 

terminate.” Jacobs Engineering Group, Inc. v. United States, 434 F.3d 1378. 1381 

(Fed. Cir. 2006) (quoting Kasler Electric Co., DOT CAB 1425, 84-2 BCA ¶17,374 

at 86,566-67).

The Army contends TLS is not entitled to any payment for the lost fuel reserves 

and equipment under the termination for convenience since the Taliban seized those 
23

items shortly prior to the termination and TLS bore the risk of loss (gov’t reply br. 

at 35). TLS, however, incurred the costs to preposition the undelivered fuel and 

equipment in preparing to perform the contracts prior to the Taliban’s seizure. The 

contracts required TLS to maintain minimum fuel reserves and bowser quantities to 

ensure an uninterrupted fuel supply to meet the required fuel deliveries (SOF ¶¶ 2, 13). 

TLS may be entitled to recover those costs under the commercial termination for 

convenience clause as costs reasonably incurred in preparing to perform the contracts.

9

 

The existing record, however, is unclear as to whether TLS could have taken any 

actions to avoid the loss and thereby mitigate the costs. Zahra Rose Construction, 

22-1 BCA ¶ 38,111 at 185,111 (avoidance of additional cost is a duty of a terminated 

contractor). The record is also unclear as to whether TLS obtained the required 

insurance that may offset some of its claimed termination costs. Accordingly, we 

conclude that the record needs to be further developed on this issue and thus, summary 

judgment is not appropriate at this time. See Conquistador Dorado JV, ASBCA 

No. 60042 et al., 20-1 BCA ¶ 37,628 (summary judgment not appropriate when record 

needs further development).

TLS bears the burden of proving its recovery of the government’s refusal to pay 

its claimed termination settlement costs. SWR, 15-1 BCA ¶ 35,832 at 175,229 (citing, 

Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 767 (Fed. Cir. 1987). That 

proof should be of “sufficient certainty so that the determination of the amount of the 

damages will be more than mere speculation.” Lisbon Contractors, Inc., 828 F.2d 

at 767 (Fed. Cir. 1987).

9 To be clear, we make no determination currently on TLS’s claim for termination 

costs under FAR 52.212-4(l) prong two.
24 

CONCLUSION 

 For the reasons set forth above, the government’s motion for summary 

judgment on appellant’s breach of contract contentions (Counts I, II, III) is granted. In 

addition, the government’s motion for summary judgment on appellant’s constructive 

change allegation (Count V) is granted. Appellant’s cross-motion for partial summary 

judgment on the termination for convenience costs (Count IV) is denied. Thus, this 

decision does not resolve the entire appeal as TLS’ entitlement to additional 

termination settlement costs, if any, will be addressed in further proceedings. 

 Dated: August 12, 2024 

I concur

OWEN C. WILSON

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals

I concur

MICHAEL N. O’CONNELL

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals

ARTHUR M. TAYLOR

Administrative Judge 

Armed Services Board 

of Contract Appeals
25

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. 63282, Appeal of Targe 

Logistic Services Company, rendered in conformance with the Board’s Charter.

Dated: August 12, 2024

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals