Atlas Sahil Construction Company
ASBCA No. 58951
| A.S.B.C.A. | Nov 9, 2017Background
- Atlas Sahil (contractor) was awarded a firm‑fixed‑price design‑build contract to expand FOB Deh Dadi II in Afghanistan, including nine 90x120 maintenance tents, generators, power distribution, and earthwork.
- The contract included FAR 52.249‑2 Termination for Convenience (Alternate I) and incorporated FAR Part 31 cost principles.
- Work was suspended in April 2011; the contract was descoped by modification (reduced tent installation, reduced footprint, added CLIN 0029), then a notice to proceed issued in Dec. 2011; the contract was terminated for convenience in March 2012.
- Atlas Sahil delivered nine damaged tents (no electrical/HVAC installed) and submitted a termination settlement claim seeking about $4.16M; the government challenged documentation, authenticity, and many cost items.
- The Board found some records unreliable, Sambros (JV partner/supplier) held additional records that Atlas Sahil did not produce, and Atlas Sahil never broke ground nor obtained final design approval.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of standard termination clause (Christian doctrine) | Christian doctrine should incorporate the standard FAR termination clause rather than Alternate I because performance included supply elements | Contract already included Alternate I; no regulation required replacing Alternate I with the standard clause | Rejected plaintiff; Alternate I governs (no automatic substitution under Christian) |
| Measure of recovery (CLIN pricing vs cost/jury‑verdict method) | CLIN pricing (and if needed, jury‑verdict approximation) is proper because CLINs reflect agreed value and plaintiff cannot fully document costs | Termination settlements are cost‑based; contractor bears burden to prove costs; plaintiff has not shown justifiable inability to substantiate costs to warrant jury verdict | Rejected CLIN/priced approach and jury verdict; used available cost evidence and contracting officer analysis to determine reasonable costs |
| Tent cost and delivery amounts | Entitled to CLIN price for nine tents ($1,647,000) and related delivery costs | Al Baddad invoice ($747,000) and shipment documents are reliable; CLIN price includes installation no longer required after modification | Allowed $747,000 for tents; allowed $336,244 for shipment/delivery (supported by invoices) |
| Recoverability and quantum of other cost categories (labor, office, CLIN 0029, DBA, severance, legal, profit) | Various higher amounts claimed (e.g., large labor, office rent, high profit) | Many costs unsupported or unreasonable (excess staffing, costs during suspension, inflated salaries); FAR Part 31 reasonableness test applies | Allowed: CLIN 0029 $129,120; labor $40,270 (contracting officer estimate); office $12,000; DBA $28,663; administrative $55,416.60; severance $49,525 (allowed under Afghan law); legal $40,792; profit 5% on allowable costs; total award $1,503,695.45 plus interest |
Key Cases Cited
- G.L. Christian & Associates v. United States, 312 F.2d 418 (Ct. Cl. 1963) (establishes Christian doctrine for mandatory inclusion of required clauses)
- General Engineering & Machine Works v. O'Keefe, 991 F.2d 775 (Fed. Cir. 1993) (Christian doctrine does not automatically incorporate every required clause)
- Grumman Aerospace Corp. v. Wynne, 487 F.3d 1350 (Fed. Cir. 2007) (criteria for when a jury‑verdict method of approximating damages is permissible)
- Lisbon Contractors, Inc. v. United States, 828 F.2d 759 (Fed. Cir. 1987) (contractor bears burden to prove fact and amount of loss with sufficient certainty)