ARMED SERVICES BOARD OF CONTRACTAPPEALS Appeal of

--
Parwan Group Company
Under ContractNo. SP0600-13-D-9504

APPEARANCES FORTHEAPPELLANT: ) ) ) ) )

APPEARANCES FOR THE GOVERNMENT: ASBCA No. 60657

Eric S. Montalvo, Esq. Lauren R. Brier, Esq.

The Federal Practice Group Worldwide

Service Washington, DC
Daniel K. Poling, Esq.

DLA ChiefTrial Attorney Matthew Vasquez, Esq.

Trial Attorney DLAEnergy FortBelvoir, VA
OPINION BYADMINISTRATIVE JUDGE D'ALESSANDRIS ONTHE GOVERNMENT'S MOTIONFORPARTIAL DISMISSAL FORLACK OF JURISDICTIONAND MOTION TO DISMISS FORFAILURE TO STATE A CLAIM Appellant Parwan Group Company (Parwan) appeals from a contracting officer's final decision denying its claim for unanticipated security costs arising out of
a fuel delivery contract in Afghanistan. The Defense Logistics Agency-Energy (DLA)
moves forpartial dismissal for lack of jurisdiction, alleging thatportions ofParwan's complaintraise claims that were notpresented to the contracting officer for final decision priorto the filing ofParwan's appeal. DLA also moves to dismiss the entire appeal for failure to state a claim upon which reliefcan be granted. Parwan opposes the motion.
STATEMENT OF FACTS (SOF) FORPURPOSES OF THE MOTION
On 23 April 2012, DLA issued Solicitation No. SP0600-12-R-0208 (solicitation) seeking proposals for the transportation ofgovernment-owned fuel products in Afghanistan (R4, tab 1 at 47). 1 AmendmentNo. 0005 to the solicitation

1 Citations to the Rule 4 file are to the consecutively-numberedpages unless otherwise indicated.contained answers to questions from offerors about a number ofissues, including three relatedto convoy security (R4, tab 2 at 93-94). 2 In response to those security questions, DLA informed offerors that "vendors consideringthe use ofarmedprivate security will notbe considered for award" (id. at 94). Offerors were also informed that there would be "no US Governmentprovided escorts" for the contractor-provided services (id.).

Parwan interpreted those responses to mean that the use ofsecurity for any particular convoy wouldbe left to the contractor's discretion, and that "if[the contractor] did not provide security [it] bore the risk ofnon-performance for each unsuccessful shipment" (compl. 

## ,r 8). Accordingly, when Parwan submitted its proposal on 27 June 2012, it did not include costs for convoy security (id. 

## ,r,r 8, 58).

On 28 November 2012, DLA awarded ContractNo. SP0600-13-D-9504 (contract) to Parwan (R4, tab 6 at 1). This fixed-price commercial item contract consisted ofa two-yearbase period from the date ofaward through 31 December 2014, and a one-year optionperiod from 1January 2015 through 31 December 2015, for a total estimated contractvalue of$12,902,090 (R4, tab 6 at 126-27; gov't mot. at 1-2). The contract includedFederal Acquisition Regulation (FAR) clause 52.243-1, CHANGES-FIXED-PRICE (AUG 1987),ALTERNATE IV(APR 1984), which states in relevantpart: (a) The Contracting Officermay at any time, by written order, and without notice to the sureties, ifany, make changes within the general scope ofthis contract in any one ormore ofthe following: (1) Specifications. (2) Work or services. (3) Place oforigin. (4) Place ofdelivery. (5) Tonnage to be shipped. (6) Amount ofGovernment-furnishedproperty. (b) Ifany such change causes an increase or decrease in the cost of, orthe time required for, performance ofany part ofthe workunderthis contract, whether ornot changed bythe order, the Contracting Officer shall make an equitable adjustment in the contract

2 When receiving a motion to dismiss for lack of jurisdiction, the facts supporting jurisdiction are subjectto fact-finding based onthe Board's review ofthe records. See, e.g., CCJE & Co., ASBCA Nos. 58355, 59008, 14-1 BCA 

## ,r 35,700 at 174,816.

2price, the delivery schedule, orboth, and shall modify the contract. (R4, tab 6 at 143)

The contract also included two clauses relevant to Parwan'sperformance under this contract

- clause 952.225-0004, COMPLIANCE WITH LA

## ws AND REGULATIONS (DEC 2011); and clause 252.225-7995, CONTRACTORPERSONNEL PERFORMING IN THE UNITED STATES CENTRAL COMMAND AREA OF RESPONSIBILITY {DEVIATION 2011-00004) (APR 2011) (R4, tab 6 at 133, 147). These clauses imposed upon Parwan two key obligations. First, underboth clauses, Parwan was required to comply with all host nation laws 

### (id.). Second, under clause 252.225-7995(c), "[ u]nless specified elsewhere inthe contract, the Contractor is responsible for all logistical and security support required for contractorpersonnel engaged in this contract" (

### id. at 147).

The contract's performance work statement (PWS) reiterated Parwan's obligation to comply with host nation laws, stating that Parwan must "remain in full compliance with all laws, decrees, labor standards, and regulations ofthe Afghanistan Government" (R4, tab 1 at 47). The PWS also stated thatthe U.S. Government "will notprovide security escort for trucks transporting fuel product in Afghanistan" 

### (id. at 48).

In February 2013, after Parwanbegan making deliveries, the Afghan government issued a decree stating that all convoys delivering fuel for the U.S. Governmentusing "southernroutes" wouldhenceforth berequired to use security escorts (R4, tab 29 at 492, 586). The decree further statedthatprivate companies were no longer authorized to provide security escorts, and that Parwan wouldbe required to
use the security services oftheAfghanPublic ProtectionForce (APPF), a state-owned enterprise ofthe AfghanMinistry ofthe Interior 

### (id.). By email dated 7 March 2013, Parwan informed DLAthat the newrequirement to use security escorts had caused security costs for all companies transporting fuel for the U.S. Government to "skyrocket," and that for Parwan inparticular, the increased costs hadbecome "almostprohibitive" (app. supp. R4, tab 38 at 4). By email dated 8 March 2013, DLA advised Parwanthat it was working "to find a payment solution" 

### (id. at 3).
On 24-25 April 2013, representatives from DLA and Parwan metto discuss the increased security costs and the possibility ofParwan filing a request for equitable adjustment (REA). Pursuantto that meeting, DLA instructed Parwanto submit an REA "forthe change to the method ofshipping andthe attendant increase in costs incurred by Parwan." (Compl. 

## ,r,r 15-16) By email dated 26 May 2013, Parwan notified DLAthat itwas experiencing delays in delivery that it attributedto the

3 

# Isecurity escorts (app. supp. R4, tab 39). Theparties thereafter exchanged additional emails discussing the delays, with DLAtwice requesting information from Parwan concerning its "issues" with APPF (R4, tabs 10-11; app. supp. R4, tabs 40-43). By email dated 17 June 2013, DLA also requested that Parwan advise it ofwhat actions could be taken by DLA to "alleviate the delays in delivery" (app. supp. R4, tab 42). It is unclear whether Parwan ever responded to this request. By email dated 11 July 2013, DLArequested additional information regarding Parwan's working relationship with APPF, including "systemic problems" regarding scheduling and cancellations. Parwan responded that same date, stating with respect to the systemic problems that "(w]e do not really gettold why a convoy is cancelled, usually the reason given is security, we do know attimes that they do not always have the assets available." (App. supp. R4, tab 46 at 53, 55)

InJuly 2013, Parwan submitted twoREAs to the contracting officer, neither of which are at issue inthis appeal. 

### In an email dated 3 September 2013, Parwan submitted a third REA (REA 3) seeking reimbursement for increased costs associated with the security escorts, which it described as "excessive" (R4, tab 15 at 243). By email dated 20 September 2013, Parwan amended REA 3 to include additional costs (R4, tab 16). In October, November and December 2013, Parwan emailed the contracting officerrequesting an update on the status ofits REAs, including REA 3 (R4, tabs 17-18, 20). In those emails, Parwan mentioned that it was experiencing financial difficulties while the REAs were pending, noting that Parwan "couldbe upside-down financially on this contract," that ifthe REAs were not approved it would be "running at an extensive loss" and it did not "know our current financial position as wehave so many items pending" (R4, tab 17 at 276-77, tab 20 at 340). By email dated 2 December 2013, DLA informed Parwan "[a]s a reminder" that APPF was the "only authorized armed security provider" underAfghan law, and "[i]f caught using unauthorized armed security yourisk negative reports and/or losing your entire contract" (R4, tab 19). By letter dated 27 March 2014, DLA denied Parwan's requests for reimbursement, stating thatthe increased security costs were not reimbursable underthe contract (R4, tab 24 at 456). Byletter dated 22 April 2014, the contracting officerreiteratedto Parwanthat, "pertheterms ofthe contract, DLA Energy does notreimburse orpay any security fees, including any fees from APPF security" (R4, tab 25 at 459). Byletter dated 31 May 2015, Parwan filed its certified claim seeking a contracting officer's final decision on several issues raised in its REAs (R4, tab 29).

4

### With respect to the security costs, the claim sought $1,022,440,3 

### and made the following points:

a. Atthe time it submitted its bid proposal to DLA, Parwan
was not obligatedto use any armed security for its convoys, and therefore did not include any security costs in its bidproposal;
b. In February 2013, the Afghan Ministry ofthe Interior informed Parwan that it would be required to begin using APPF security escorts at the end ofthat month;

c. The terms ofthe contract required Parwanto comply with all U.S. and host nation la~s; and
d. Because Afghan law now required it to use APPF security escorts, an obligation "reinforced and reiterated" by DLA employees, Parwan was entitled to the increased costs ofperformance. 

### (Id. at 492-93)
Parwan's claim included invoices reflecting the increased security costs (R4, tab 29 at 595-617). Parwan also sought a contract modificationto reflect the new security obligation, which it argued was a reasonable request because the additional expenditure "was not contemplated in the award costs, is required by Afghan law and indirectly by the contract, and may result in financial ruin for the company" (id. 

### at 493). Specifically with respect to the increased security costs, Parwan's claim made
no mention ofthe impact ofdelivery delays. 4 

### By letter dated 14 April 2016, DLA issued the contracting officer's final decision, which denied the portion ofParwan's claim seeking reimbursement for the increased security costs (R4, tab 35). DLA denied changing the contract requirements, citing the contractprovisions that required Parwan to comply withhostnation law and that assigned responsibility for security to Parwan. DLA also pointed out that a fixed-price contract such as Parwan'splaces upon the contractor "maximumrisk and full responsibility for all cost and resulting profit or loss" meaning that ''the use of

3 

### That amount has now increased to $1,044,660 to reflect invoices Parwanreceived from APPF after submission ofits claim (compl. 

## ,r,r 32-33). 4 

### Parwan's claim also sought recovery for costs associated with delays in downloading fuel; however, those costs are unrelated to the increased security costs and are not at issue in this appeal (R4, tab 29 at 493-95).

5

### APPF and any costs incurred

...are not reimbursable under this contract." (Id. at 707) Parwan filed its notice ofappeal by letter dated 1July 2016. The appeal challenges only thatportion ofDLA's decision relating to Parwan's increased security costs.
DECISION
Parwan's complaint asserts four grounds for relief. 5 

### Counts I and II allege that DLA changed the contract requirements, with Count II specifically alleging that the new security escort requirement constituted a constructive change(comp

### I. ,i,i 34-54). In Count III, Parwan alleges that a 15% increase in its overhead costs and severe delivery delays rendered its contractwith DLA commercially impracticable (id. ,i,i 

### 55-62). Count IV alleges that Parwan "detrimentally relied" upon DLA'srepeated assurances that the increased costs ''would be taken care of," and that based upon those assurances, Parwan continuedperformance with the understanding that it would be "made whole" through
an equitable adjustment (id. ,i,i 

### 63-70).
DLAhas moved to dismiss Counts III and IV ofthe complaint, arguing that the Board lacksjurisdictionto entertain these allegations because they were never presentedto the contracting officer. DLAhas alternatively moved to dismiss the entire appeal for failure to state a claim upon which reliefcan be granted. We address the jurisdictional argument first.

The Board'sJurisdiction over Counts III and IV

Parwan bears the burden ofproving the Board'sjurisdiction by a preponderance ofthe evidence. Reynolds v. Army &

### AirForce Exchange Service, 846 F.2d 746, 748 (Fed. Cir. 1988); UnitedHealthcare Partners, Inc., ASBCANo. 58123, 13 BCA ,i 

### 35,277 at 173,156. Pursuantto the Contract Disputes Act (CDA), "[e]ach claim by a contractor against the Federal Governmentrelating to a contract shall be submitted to the contracting officer for a decision." 41 U.S.C. 

### § 7103(a)(l). "The scope of[an] appeal is determined by the claim originally submittedto the contracting officer for a final decision." MACHII, ASBCANo. 56630, 10-1 BCA

## i! 34,357 at 169,673. Accordingly, we do not possessjurisdiction overnew claims that were notpreviously presented to the contracting officer. Id.
To determine whether a claim is newwe examine whether it derives from the
same set ofcommon orrelated operative facts as the claimpresented to the contracting officer and seeks the same or similarrelief. Scott Timber Co. v. UnitedStates, 333 ·F.3d 1358, 1365 (Fed. Cir. 2003); The Public Warehousing Company, ASBCANo. 56022,

5 

### Forpurposes ofthis decision we will refer to those four grounds for reliefas Counts I through IV.

611-2 BCA

## ,r 34,788 at 171,227. 

### Ifthe operative facts inthe pleadings are essentially the
same as thosepresented in the claim,they are within the scope ofthe appeal. 

### MA CHII, 10-1 BCA

## ,r 34,357 at 169,673. Allegations presenting a new legal theory ofrecovery, orthe introduction ofadditional facts that do not alter the nature ofthe original claim, do not constitute a new claim ifthey are based upon the same operative facts included in the original claim. 

### Trepte Construction Co., ASBCA No. 38555, 90-1 BCA 

### ,i 22,595 at 113,385-86. Where proofofthe new legal theory includes operative facts differing from those in the original claim, however, "the essential nature ofthe claim has been changed and we do not havejurisdiction over the new claim until it is presented to the contracting officer for decision." 

### Shams Engineering & 

### Contracting Co. & 

### Ramli Co., ASBCANos. 50618, 50619, 98-2 BCA

### ,i 30,019 at 148,525. The claim must provide a "clear andunequivocal statement that gives the contracting officer adequate notice" of its claim. 

### K-Con BuildingSystems, Inc. v. UnitedStates, 778 F.3d 1000, 1005 (Fed. Cir. 2015) (quoting 

### Contract CleaningMaintenance, Inc. v. UnitedStates, 811 F.2d 586, 592 (Fed. Cir. 1987)).
Count III

- Commercial Impracticability

Count III ofParwan's complaint asserts that the new security escort requirement rendered the contract commercially impracticable. To establish commercial impracticability, a contractormust show that "(l) a supervening event made performance impracticable; (2) the non-occurrence ofthe event was a basic assumption upon which the contract was based; (3) the occurrence ofthe event was not the contractor's fault; and (4) the contractor did not assume the risk ofoccurrence." 

### Spindler Construction Corp., ASBCANo. 55007, 06-2 BCA

### ,i 33,376 at 165,462 (citing 

### SeaboardLumber Company v. UnitedStates, 308 F.3d 1283, 1294-95 (Fed. Cir. 2002)). The doctrine applies where "the costs ofperformance amount to commercial senselessness

...[not]justbecause performance cannotbe achieved most economically." 

### Safety Training Systems, Inc., ASBCA Nos. 57095, 57166, 14-1 BCA 

### ,i 35,509 at 174,051 (citing

### Natus Corp. v. UnitedStates, 371 F.2d450,457 (Ct. Cl. 1967)). Thus "[a] showing ofsimple economic hardship is not sufficient." 

### American Combustion, Inc., ASBCANo. 43712, 94-3 BCA

### ,i 26,961 at 134,243 

### (citingJennie-0 Foods, Inc. v. UnitedStates, 580 F.2d 400,410 (Ct. Cl. 1978)).

Count III specifically alleges that "[a]tthe time ofContract formation, both parties assumed transportation security was neither needed norrequiredto ship products along certain routes in Afghanistan," and for this reason, the solicitation did not include a requirement "mandatingthe use ofAPPF escorts" (compl. 

### ,i,i 56-57). Count III further alleges that based upon this understanding, Parwan did not include security costs in its bid price (id. 

## ,r 58). Count III then asserts that the subsequent requirement to use security escorts rendered the contract commercially senseless, because Parwan incurred a 15% increase in overhead costs and experienced severe delivery delays due to difficulties in coordinating shipments (comp

### 1. ,i,r 61-62).

7

### DLA contends that Count III is based upon materially different facts than those alleged in Parwan's claim, which DLAnotes did not mention commercial impracticability (gov'tmot. at 7). Parwan disagrees, arguing that Count III merely presents a new legal theory rather than a new claim (app. opp'n at 25-27). Parwan describes the claim as having asserted that the new security requirement was "unexpected" and "unforeseen," but fails to identify any specific language in the claim that supports this assertion 

### (id. at 26). Parwan also notes thatthe 15% increase in security costs can easily be calculated from the invoices attached to the claim 

### (id.). With respect to the complaint's references to delivery delays, Parwan maintains that they "derive directly from the change in contract" addressed in its claim, but it, again, fails to identify any language in the claim that supports this assertion 

### (id. at 27).
We agree with DLA. The operative facts ofParwan's claim are straightforward and simple: 1) Parwan did not include any costs for security escorts at the time it submitted its bid because the solicitation did notrequire it; 2) afterperformance began, Afghan law changed, requiring Parwan to use security escorts ifit wished to operate in Afghanistan; 3) Parwan is contractually required to comply with host nation law; and 4) as a result, Parwan incurred additional costs exceeding the contractprice (R4, tab 29 at 492-93). The claim does not address what the parties believed with respect to the need for security escorts, nor does it mention a reason the solicitation did not require security escorts 

### (id.). Although Parwan submitted invoices for the security escort costs with its claim, the claim document itselfonly minimally addresses the impact ofthose costs, and it is silentwithrespect to the impact ofdelivery delays 

### (id. at 492, 595-617).
While it is true that in determining the scope ofthe claim we may "examine the totality ofthe correspondence

...[and] the continuing discussions, between the parties," 

### Public Warehousing, 11-2 BCA

## ,r 34,788 at 171,228, the record here does not support including commercial impracticability within the scope ofParwan's claim. With respect to the impact ofthe increased security costs, although there are other references to financial hardship contained in the record, they are vague and conclusory at best (R4, tabs 15-18, 20; app. supp. R4, tab 38). In addition, while the record indicates the parties discussed delivery delays on several occasions in 2013 prior to the filing ofREA 3 (R4, tabs 10-11; app. supp. R4, tabs 29-43, 46), it contains no evidence Parwan ever communicated to DLA that it believedthe impact ofthose delays was so severe that itrendered the contract commercially senseless.
Parwan's claim is in essence a question ofcontract interpretation, i.e., the impact ofthe change in Afghan law upon Parwan's contractual obligations. Count III goes far beyondthat limited analysis, altering the claim's essential nature by requiring factual inquiry into whether DLA shared Parwan's a~sumption that security escorts would not be required, why security escorts were not required bythe solicitation and whether the increased costs and the impact ofdelivery delays were so greatthat they rose to the

8

### level ofcommercial impracticability. Because Parwan's claim did notprovide a "clear and unequivocal statement that [gave] the contracting officer adequate notice" it was alleging commercial impracticability, we do not possessjurisdiction over Count III of Parwan's complaint. 

### K-Con BuildingSystems, 778 F.3d at 1005.
Count IV-Detrimental Reliance

Count IV ofParwan's complaint alleges that shortly after the Afghan government imposed the new security requirement, DLAprovided assurances that a "payment solution" would be found (compl.

## ,r 14). Count IV further alleges that Parwan, relying to its detriment upon those assurances, continued to perform and "absorb[ed] the additional costs with an understanding that [it] would be made whole th.rough an equitable adjustment" (compl. 

## ,r,r 65-69).

In its opposition brief, Parwan elaborates on Count IV and argues that based upon this detrimental reliance, DLAis estopped from denying liability for the security costs (app. opp'n at 27-28). Characterizing Count IV as a new legal theory rather than
a new claim, Parwan avers that it "emerges directly" from two facts referenced in the claim-I)that in February 2013 Parwan was required to use security escorts in orderto fulfill its contractual obligations; and 2) thatthis "change to its contract requirements
was 'reinforced and reiterated_by DLA employees'" 

### (id. at 27).

We do not agree that the difference here is merely the legal theory in the claim. The two statements referenced by Parwan cannot be reasonably interpreted as informing DLAthat Parwan was asserting an estoppel claim. Equitable estoppel requires: 1) some form ofmisleading conduct, which may consist ofsilence or inaction as well as affirmative action, leading another to reasonably infer that rights will not be asserted against it; 2) reliance upon the misleading conduct; and 3) material prejudice due to the reliance. 

### Mabus v. 

### GeneralDynamics C4 Systems, Inc., 633 F.3d 1356, 1359 (Fed. Cir. 2011). There is nothing in Parwan's claim asserting that DLA assured Parwan it wouldbe paid, either falsely or otherwise, orthat Parwan was relying upon any such assurances in continuing to incur the additional costs. Count IV introduces a new set offacts that are wholly unrelated to the claim and that materially alter the claim's essential nature. We therefore find that Count IV is also a new claim
over which we do notpossessjurisdiction.
Breach ofImplied Duty to Cooperate

In its opposition brief, Parwan for the first time alleges that DLA breached its implied duty to cooperate, and that this breach constituted a constructive change to the contract (app. opp'n at 15) (citing

### R. W Jones Construction, Inc., IBCA No. 3656-96, 99-1 BCA

## ,r 30,268 at 149,681). DLA characterizes this allegation as an implicit request by Parwan to amend its complaint, which it argues should be denied because it

9

# I 

# l

represents a new claim notpreviously presented to the contracting officer (gov'treply at 15). Although the Board maypermit a party to amend its pleadings upon conditions fair to bothparties, see Board Rule 6(d), the Board will deny a request to amend a complaint ifthe amendment is essentially a new claim based upon operative facts not alreadypresented to the contracting officer. GSC Construction, Inc., ASBCA No. 59046, 15-1 BCA

## ,r 35,882 at 175,429.

The implied duty to cooperate arises out ofthe implied duty ofgood faith and fair dealing that every contract contains. Metcalf Construction Company v. United States, 742 F.3d 984, 991 (Fed. Cir. 2014). The duty requires the government to do "what is reasonably necessary to enable the contractor to perform." SEEEngineering, Inc., ASBCA No. 39728, 94-2 BCA

## ,r 26,810 at 133,352. Parwan's opposition brief alleges that DLAbreached this duty when it took over a year to deny Parwan's requests that it be reimbursed for the increased security costs (app. opp'n at 15-17).

Parwan identifies no provision in the claim itselfsupporting its contention that DLAbreached this duty. Instead, Parwan points to the allegations in the complaint that even though it began requesting reimbursement for the security costs as early as March 2013, DLA did not deny that request until 27 March 2014 (app. opp'n at 16-17 (citing compl. 

## ,r,r 12-24, 65-68)).

It is not the complaint, however, butthe claim that forms the basis for our jurisdiction. Madison Lawrence, Inc., ASBCANo. 56551, 09-2 BCA

## ,r 34,235 at 169,207; MACHII, IO-I BCA

## ,r 34,357 at 169,673. As DLA notes, Parwan's claim makes noreference to its earlierrequests for reimbursement or any unreasonableness
on DLA'spart in resolving those requests (gov'treply at 15; R4, tab 29 at 492-93). We therefore hold that Parwan's contentionthat the government breached its duty to cooperate represents a new claim notpreviously presented to the contracting officer
over which we do notpossessjurisdiction.6

Failure to State a Claim upon which Reliefcanbe Granted

We next tum to DLA's contention that Parwan's complaint fails to state a claim upon which reliefcan be granted (gov't mot. at 9-19). The Board will grant a motion to dismiss for failure to state a claim when the complaint fails to allege facts "'plausibly suggesting (not merely consistent with)' a showing ofentitlementto relief." Cary v. UnitedStates, 552 F.3d 1373, 1376 (Fed. Cir. 2009) (quotingBell Atlantic Corp. v. Twombly, 550 U.S. 544, 557 (2007));American General Trading & Contracting, WLL, ASBCA No. 56758, 12-1 BCA

## ,r 34,905 at 171,640. The

6 DLA also urges the Boardto reject Parwan'sbreach allegation because it would be futile onthe merits (gov'treply at 14). Based upon our holding here, we need not considerthat argument.

10allegation "mustbe enough to raise a rightto reliefabove the speculative level." 

### Cary, 552 F.3d at 1376. In addition, the "complaint must contain sufficient factual matter, accepted as true, to 'state a claim to reliefthat is plausible on its face.'" 

### Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009) (quoting 

### Twombly, 550 U.S. at 570). We "must accept well-pleaded factual allegations as true and must draw all reasonable inferences in favor ofthe claimant." 

### KelloggBrown & RootServices, Inc. v. UnitedStates, 728 F.3d 1348, 1365 (Fed. Cir. 2013). We are not required, however, to accept as true legal conclusions inaccuratelyportrayed as factual allegations. 

### Exe/is, Inc., ASBCA No. 60131, 17-1 BCA

## ,r 36,679 at 178,606 (citing

### AcceptanceIns. Companies, Inc. v. UnitedStates, 583 F.3d 849, 853 (Fed. Cir. 2009)).

In addition to reviewing the allegations contained in the complaint, the Board rriay consider "matters incorporated by reference or integral to the claim, items subject tojudicial notice, [and] matters ofpublic record." 

### A&DAuto Sales, Inc. v. United States, 748 F.3d 1142, 1147 (Fed. Cir. 2014) (quoting SB Charles Alan Wright & Arthur R. Miller, 

### FederalPractice andProcedure§ 1357 (3d ed. 2004)). Here, the focus ofthe complaint is the purported change in the contract's performance requirements from whatwas originally contemplated by the parties. Thus we may properly considerthe contract's terms in determining whetherParwan's complaint states a claim upon whichreliefcan be granted. 

### See CCIE & Co., 14-1 BCA

## ,r 35,700 at 174,816.
Counts III and IV having already been dismissed for lack of jurisdiction, we are left only to evaluate the sufficiency ofCounts I and II. Although far from a model of clarity, Count I appears to assert entitlement under the Changes clause itself(compl. 

## ,r,r 34-48).7 However, nowhere in the complaint does Parwan allege the existence ofa written change order, whichthe Changes clause requires. 

### See FAR 52.243-l(a). Thus, to the extent that Count I seeks recovery strictly underthe Changes clause, it fails to allege facts showing Parwan is entitled to relief.

In Count II, Parwan seeks reliefunder a theory ofconstructive change. "A constructive change occurs when a contractorperforms workbeyond the contract requirements, without a formal order under the Changes clause, due eitherto an express orimplied informal order from an authorized government official or to government fault." 

### Circle, LLC, ASBCANo. 58575, 15-1 BCA

## ,r 36,025 at 175,974 (citing

### Bell/Heery v. UnitedStates, 739 F.3d 1324, 1335 (Fed. Cir. 2014)). Thus in the absence ofgovernment action or fault, the constructive change doctrine cannot form

7 Parwan's opposition brieffurther confuses the issue by recharacterizing Count I as a constructive change claim and Count II as a claim for breach ofthe implied duty to cooperate (app. opp'n at 8, 10-18). Notwithstanding the confusion, we will proceed by examining the counts as they appear in the complaint.

11

# 1 1

the basis for recovery. 

### -Jnt'lData Prods. Corp. v. UnitedStates, 492 F.3d 1317, 1325 (Fed. Cir. 2007).

Count II incorporates and expands upon an allegation appearing in Count I that in late February 2013, DLA began "ordering" Parwan to use security escorts (compl. 

### ,i 40), allegingthat that this "demand" constituted a constructive change to the contract (comp

### 1. 

### ,i,i 49, 51, 54). We are not required, however, to give deference to Parwan's legal conclusion regarding the effect ofDLA's "demand." 

### Exe/is, 17-1 BCA 

### ,i 36,679 at 178,606. Theterms ofthe parties' contract explicitly allocated to Parwan responsibility for all security supportrequired for contractorpersonnel, and further required Parwanto comply with all host nation laws (R4, tab 1 at 47-48, tab 6 at 123, 147). Moreover, as the complaint itselfconcedes, it was the Afghan government, not DLA, that mandated the use ofsecurity escorts (compl. 

### ,i 12). 8 We therefore find that DLA's "orders"were not intended to effect a changeto the contract butratherto enforce the contract's terms. Thus a critical element ofthe constructive change doctrine-that the purported change was ordered bythe government-is missing from Count II. Additionally, in the alternative, we hold that Counts III and IV also fail to state a claim for relief. With respect to CountIII, we note that commercial impracticability only applies where the contractor did not assume the risk that the supervening event might occur. 

### Spindler Construction, 06-2 BCA 

### ,i 33,376 at 165,462. In the case ofa fixed-price contract, however, that element cannotbe established because it is the contractor, not the government, who bears the risk ofunexpected costs. 

### Safety Training Systems, 14-1 BCA 

### ,i 35,509 at 174,052. Parwan's complaint alleges no fact thatwould entitle itto shiftthatrisk backto DLA.
With respect to Count IV, we note that while equitable estoppel "maybe raised either as an affirmative defense or as grounds topreventthe defendant from raising a particular defense," it is not an independent cause ofaction thatParwan can assert. 

### Carlson v. Arnot-OgdenMemorialHospital, 918 F.2d 411,416 (3d Cir. 1990); RGW 

### CommunicationsInc. d/b/a Watson Cable Co., ASBCANos. 54495, 54557, 05-2 BCA ,i 32,972 (Board is withoutjurisdictionto entertain contracts implicit in law). 9

8 Paragraph 12 ofthe complaint is ambiguous as to whether it alleges thatthe requirement to use APPF security was imposed by the Afghan Ministry of interior orthe U.S. Government. Parwan's briefmakes clearthat it is alleging thatthe Afghan Ministry imposes the requirement (app. opp'n at 5). 9 DLA argues that the same would be true withrespecttopromissory estoppel (gov't reply at 13-14). While we do not believe that Parwanwas asserting a claim based upon promissory estoppel, even ifit were, Count IV would still fail. Although promissory estoppel can be used to create an affirmative cause of action, againstparties otherthan the government, 

### Jablon v. UnitedStates, 657

12Accordingly, even ifwe found that Parwan had met the CDA'sjurisdiction requirements for Counts III and IV, we would nevertheless dismiss them for failure to state a claim upon which reliefcan be granted.
CONCLUSION

The government's motion is granted. Counts III and IV ofthe complaint are dismissed for lack of jurisdiction. The remaining counts at issue in this appeal, Counts I and II, are dismissed for failure to state a claim upon which reliefcan be granted.
Dated: June 25, 2018

I concur



### ~,,____- RICHARD SPIACKLEFORD Administrative Judge Acting Chairman Armed Services Board ofContractAppeals DAVID D'ALESSANDRIS Administrative Judge Armed Services Board ofContract Appeals

I concur

J. REID PROUTY Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

F.2d 1064, 1068 (9th Cir. 1981), "[a]n obligation based uponpromissory estoppel is a type ofcontract implied-in-law

...and cannotbe asserted against the government." 

### RGWCommunications, 05-2 BCA ,i 32,972 at 163,338 n.13 (citations omitted).

13I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCANo. 60657, Appeal ofParwan Group Company, rendered in conformance with the Board's Charter.

Dated:

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