# GULF GROUP GENERAL ENTERPRISES CO. W.L.L., Plaintiff, v. UNITED STATES, Defendant

> United States Court of Federal Claims · July 17, 2013 · 114 Fed. Cl. 258

URL: https://www.frixlaw.com/law-library/cases/1034155

## Case

- **Full name:** Gulf Group General Enterprises Co. W.L.L. v. United States 06-835c, 06-853c, 06-858c
- **Court:** United States Court of Federal Claims
- **Decided:** July 17, 2013
- **Citations:** 114 Fed. Cl. 258; 2013 WL 3815233
- **Precedential status:** Published
- **Opinion:** Opinion by Horn
- **Judges:** Horn
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1034155

## How later opinions describe it (automated extraction)

- noting that federal common law fraud requires, among other things, intent to deceive

## Opinion text

In the United States Court of Federal Claims
Nos. 06-835C, 06-853C, 06-858C, 07-82C
Filed: July 2, 2013
Unsealed Opinion Issued for Publication: July 17, 2013

* * * * * * * * * * * * * * * *
GULF GROUP GENERAL *
ENTERPRISES CO. W.L.L., * False Claims Act, 31 U.S.C. § 3729;
* Special Plea in Fraud, 28 U.S.C.
Plaintiff, * § 2514; Contract Disputes Act, 41
v. * U.S.C. § 604; Rescission and
* Disgorgement; Termination; Breach
UNITED STATES, * of Contract; Abuse of Discretion;
* Demurrage.
Defendant. *
*
* * * * * * * * * * * * * * * *

Iliaura Hands, Miller & Williamson LLC, New Orleans, LA, for plaintiff. With her
was Machale A. Miller, Miller & Williamson LLC, New Orleans, LA.

Timothy P. McIImail, Senior Trial Counsel, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington, D.C., for defendant. With
him were Robert C. Bigler, Stacey K. Grigsby, Kent C. Kiffner, Lartease M. Tiffith,
Russell J. Upton, Trial Attorneys, Jeanne E. Davidson, Director, Commercial
Litigation Branch, and Stuart F. Delery, Acting Assistant Attorney General, Civil
Division. Of counsel, Major Daniel Everett, Major John Gowel, and Captain Dana
Collins, United States Army, Litigation Division.

OPINION

HORN, J.

FINDINGS OF FACT

This opinion relates to four consolidated cases filed by the same plaintiff, Gulf
Group General Enterprises Co. W.L.L. (Gulf Group), in the United States Court of
Federal Claims.1 The cases arise from four awards to Gulf Group by the United States
Army in 2004. In the lead case, Case No. 06-835C (the camp package BPA case), Gulf

1
The original complaints were filed as follows: Case No. 06-835C, the camp package
blanket purchase agreement (BPA) case was filed on December 8, 2006; Case No. 06-
858C, the latrine case, was filed on December 15, 2006; Case No. 06-853C, the
Group alleges that the government’s termination of its BPA call under a general
services contract was arbitrary, capricious, and an abuse of discretion. Gulf Group also
alleges that the camp package BPA call termination was made in bad faith.2 In Case
No. 06-858C (the latrine case), Gulf Group alleges that the government’s termination of
its contract to supply latrines to Camp Arifjan in Kuwait was arbitrary, capricious, and an
abuse of discretion. Gulf Group also alleges that the latrine contract termination was
made in bad faith. In Case No. 06-853C (the dumpster case), Gulf Group alleges that
the government’s termination of its contract to supply dumpsters to Camp Arifjan in
Kuwait was arbitrary, capricious, and an abuse of discretion. Gulf Group also alleges
that the termination of the dumpster contract was made in bad faith. In Case No. 07-
82C (the bottled water BPA case), Gulf Group alleges that the government’s
requirement that it travel in military convoys to deliver bottled water to base camps in
Iraq and Kuwait3 and on return trips resulted in significant delays, as a result of which
plaintiff incurred additional costs. Gulf Group contends that the government breached
its duty of good faith and fair dealing in delaying plaintiff’s delivery of bottled water and
that, because of the breach, the government is responsible for demurrage expenses.

dumpster case, was filed on December 19, 2006; Case No. 07-82C, the bottled water
BPA case, was filed on February 1, 2007. The cases were consolidated on August 28,
2008. The complaints in each case, however, have been amended multiple times, with
the final amendment in the camp package BPA case dated May 6, 2011, the final
amendment in the latrine case dated February 25, 2011, the final amendment in the
dumpster case dated February 25, 2011, and the final amendment in the bottled water
BPA case dated February 25, 2011. Some of the cases were stayed pending decisions
of the contracting officer. Subsequently, the second amended complaints in the camp
package BPA case, latrine case, and dumpster case raised allegations of abuse of
discretion and bad faith on the part of the United States. The cases also were stayed
for a considerable period of time at the request of defendant to accommodate ongoing
criminal investigations and prosecutions, which are addressed more fully below.
2
Although plaintiff alleged bad faith in the second amended complaints in the camp
package BPA case, the latrine case, and the dumpster case, plaintiff subsequently
dropped all allegations concerning bad faith in each of the cases in which it originally
was raised. As confirmed in an April 22, 2011 Order issued by this court, “[i]n a
conference the court held with the parties on April 8, 2011, plaintiff’s counsel advised
the court that, upon reflection, counsel does not wish to pursue a bad faith claim on the
part of the government, but that plaintiff’s counsel intends to proceed with the allegation
that government officials acted arbitrarily and capriciously with respect to the
cancellation of Gulf Group’s contract.” Thereafter, in its third amended complaint in
Case No. 06-835C (the camp package BPA), filed on May 6, 2011, plaintiff dropped its
bad faith claim against the government. Plaintiff reiterated at closing argument, “there is
no bad faith claim in any one of these four cases, 06-835, 06-858, 06-853, and 07-082.”
3
The court notes that the bottled water BPA statement of work states that water was to
be delivered to camps in Kuwait, whereas the “Special Instructions” in the bottled water
BPA, discussed more fully below, indicate that water was to be delivered in Kuwait and
Iraq.

2
The government filed counterclaims and affirmative defenses in each of the four
consolidated cases. Regarding the camp package BPA case, Case No. 06-835C,
defendant alleges violations of the False Claims Act, 31 U.S.C. § 3729 (2000),
amended by Fraud Enforcement & Recovery Act of 2009 (FERA), Pub. L. No. 111–21,
123 Stat. 1617,4 the Contract Disputes Act, 41 U.S.C. § 604 (2000) (current version at
41 U.S.C. § 7103(c)(2) (Supp. V 2011)), and the Special Plea in Fraud statute, 28
U.S.C. § 2514 (2000).5 Defendant seeks forfeiture of plaintiff’s entire camp package
BPA claim under the Special Plea in Fraud statute, damages in the amount of plaintiff’s
unsupported claim, as well as defendant’s cost of reviewing plaintiff’s alleged false claim
under the Contract Disputes Act, and treble damages and allowable civil penalties
under the False Claims Act. Defendant also seeks rescission of the calls issued under
the camp package BPA, which the government alleges were obtained by plaintiff
through bribery, conflict of interest, and fraud, and defendant seeks disgorgement of all
monies the United States paid for calls issued under the camp package BPA, plus
costs.

In the latrine case, Case No. 06-858C, defendant alleges violations of the False
Claims Act, the Contract Disputes Act, and the Special Plea in Fraud statute.
Defendant seeks forfeiture of plaintiff’s entire claim under the Special Plea in Fraud
statute, damages in the amount of plaintiff’s unsupported claim, as well as defendant’s
cost of reviewing plaintiff’s allegedly false claim under the Contract Disputes Act, and
allowable civil penalties under the False Claims Act, plus costs. Although defendant
argues that the latrine contract also was tainted by bribery, conflict of interest, and
fraud, defendant does not seek rescission of the latrine contract.

In the dumpster case, Case No. 06-853C, defendant alleges violations of the
False Claims Act, the Contract Disputes Act, and the Special Plea in Fraud statute. As
in the latrine case, defendant seeks forfeiture of plaintiff’s entire claim under the Special
Plea in Fraud statute, damages in the amount of plaintiff’s unsupported claim, as well as
defendant’s cost of reviewing plaintiff’s allegedly false claim under the Contract
Disputes Act, and allowable civil penalties under the False Claims Act, plus costs. As in
the latrine case, although defendant argues that the dumpster contract was tainted by
bribery, conflict of interest, and fraud, defendant does not seek rescission of the
dumpster contract.
4
The 2009 amendments to the False Claims Act apply retroactively to claims pending
on or after June 7, 2008. See United States ex rel. Bennett v. Medtronic, Inc., 747 F.
Supp. 2d 745, 762-63 (S.D. Tex. 2010). Although the amended version of the False
Claims Act could potentially apply to a submission that plaintiff made in 2011, the court
refers to the previous version of the False Claims Act because, as indicated below,
plaintiff’s conduct in 2011 does not implicate liability under the False Claims Act.
5
The court notes that some courts refer to the Special Plea in Fraud statute as the
“Forfeiture of Fraudulent Claims Act” or “FFCA.” See, e.g., Ulysses, Inc. v. United
States, 110 Fed. Cl. 618, 648 (2013); Grand Acadian, Inc. v. United States, 105 Fed. Cl.
447, 458, appeal dismissed (Fed. Cir. 2012).

3
As to the bottled water BPA case, Case No. 07-82C, defendant alleges violations
of the False Claims Act, the Contract Disputes Act, and the Special Plea in Fraud
statute. As in the camp package BPA case, defendant seeks forfeiture of plaintiff’s
entire claim under the Special Plea in Fraud statute, damages in the amount of plaintiff’s
unsupported claim and the cost of reviewing plaintiff’s allegedly false claim under the
Contract Disputes Act, and treble damages, as well as allowable civil penalties under
the False Claims Act. Defendant also seeks rescission of the BPA calls, which
defendant alleges were obtained by plaintiff through bribery, conflict of interest, and
fraud, and seeks disgorgement of all monies the United States paid for calls issued
under the bottled water BPA, plus costs.

Pursuant to the False Claims Act, the government alleges that Gulf Group
knowingly submitted false or fraudulent claims to the government on the camp package
BPA, the latrine contract, the dumpster contract, and the bottled water BPA. Regarding
the camp package BPA, defendant claims that plaintiff violated the False Claims Act in
submitting invoices for a call issued under the camp package BPA and in submitting to
the government its claims for monies due because the award of the camp package BPA
was tainted by bribery, plaintiff inflated the amount of its claims relating to BPA call
00016 for services and supplies it had not rendered, and plaintiff supported at least one
of its claims with an invoice for services rendered by another government contractor,
Green Valley Company (Green Valley).7 According to defendant, plaintiff also inflated
6
Camp package BPA call 0001 was issued pursuant to the camp package BPA on
September 30, 2004, for items covered by the camp package BPA for Camp Buehring.
7
The parties stipulated that, “[o]n September 28, 2004, Gulf Group and Green Valley
entered into a joint venture agreement to perform certain contracts,” including for
supplies and equipment and other necessary expenses, under which Suresh Pulikkal, a
legal consultant for Gulf Telecom, a wholly owned subsidiary of Gulf Group, and other
companies in the region, was given power of attorney to act for Green Valley. Saud Al
Tawash, the General Manager of Gulf Group, testified that, to the best of his
recollection, Gulf Group did not perform any projects with Green Valley under the brief
joint venture agreement between the two companies. Saud Al Tawash also testified,
however, that Gulf Group had contacted Green Valley in connection with securing
equipment to perform under the camp package BPA call for Camp Buehring. Palm
Springs General Trading and Contracting Establishment (Palm Springs), a separate
company established by Saud Al Tawash, apparently also had a joint venture with
Green Valley. Saud Al Tawash testified that, although Palm Springs and Green Valley
had worked together on a project, he terminated the joint venture between Palm Springs
and Green Valley shortly after a December 2004 meeting about waste management
fraud perpetrated by Green Valley employees. Saud Al Tawash testified that
government personnel were confused about the relationship between Palm Springs and
Green Valley and a contract performed by the two companies was modified in an
attempt to clarify the confusion. When asked about the relationship between Palm
Springs and Green Valley, Saud Al Tawash offered the following testimony:

4
the amount of its latrine and dumpster contract claims for services and supplies it did
not render, inflated the amount due on its claims for demurrage under the bottled water
BPA, and obtained the bottled water BPA, and latrine and dumpster contracts through
bribery.

Pursuant to the Contracts Disputes Act, defendant alleges that Gulf Group
cannot support the monetary claims submitted in the above-captioned cases due to
misrepresentation of fact or fraud. In each case, defendant asserts that plaintiff
submitted a claim for an amount significantly greater than the contract or BPA call price.
As to the camp package BPA, defendant contends that plaintiff claimed $4,544,339.84,8
although BPA call 0001 was only for $1,447,457.22, the call was only twelve days into
performance when it was terminated, and as with the False Claims Act allegations,
plaintiff supported its claim with an invoice from Green Valley. Under the latrine
contract, defendant alleges that plaintiff claimed $4,558,428.60, although the contract
was only for $613,142.86, the contract was terminated after twenty days of
performance, and the contract was obtained through bribery. Defendant also alleges
that plaintiff certified entitlement to $999,994.67 under the dumpster contract, although
the contract was only for $346,998.00, the contract was terminated thirty-two days into
the performance period, and the contract was tainted by bribery. Defendant further
argues that plaintiff claimed $1,065,711.39 for demurrage under the bottled water BPA,
although its documented demurrage charges do not total $1,065,711.39. Defendant
also alleges that the bottled water BPA was obtained through bribery. Therefore,
defendant contends, plaintiff must pay the government the amount of money it has
claimed which is unsupported, plus the government’s costs generated in reviewing the
claims.

Pursuant to the Special Plea in Fraud statute, asserted in Case No. 06-835C, the
camp package BPA case, Case No. 06-858C, the latrine case, Case No. 06-853C, the
dumpster case, and Case No. 07-82C, the bottled water BPA case, the government

Q: So these [Palm Springs and Green Valley] are two completely separate
companies?

A: Yes.

Q: There’s no comingling of funds, there’s no joint employees, there’s
nothing that is in common to each other?

A: If Green Valley was my company why would I ask for a modification on
this contract?

Q: Why would you even need a joint venture?

A: Why would I need a joint venture, right.
8
The parties have, by stipulation, generally converted Kuwaiti dinars (KD) into United
States dollars (USD) using a 1:3.571 rate throughout their pleadings.

5
alleges that the contracts and BPA calls were awarded in exchange for “money, trips,
and other things of value” given by Gulf Group to Carolyn Blake, the sister of John
Cockerham, a former Army Major, contract specialist, and contracting officer at Camp
Arifjan, Kuwait, who was involved in the award, and terminations, of some of Gulf
Group’s contracts. Defendant asserts that Gulf Group’s actions constitute fraud under
the Special Plea in Fraud statute, requiring forfeiture of plaintiff’s claims, as Gulf
Group’s actions created an unlawful conflict of interest and violated 18 U.S.C.
§ 201(b)(1) (2000), which prohibits the offering or promising of anything of value to a
public official with the intent to influence an official act. Defendant further alleges that
Gulf Group violated the Special Plea in Fraud statute by submitting false claims under
each contract and BPA call to the United States government for an amount of money “to
which it knew or knows it was not entitled.” Defendant also contends that Gulf Group’s
camp package and bottled water BPAs were void from the beginning, because they
were tainted by bribery, conflict of interest, and fraud, entitling the government to the
rescission of the calls and the disgorgement of all amounts paid to Gulf Group under the
calls issued for the BPAs.

Contract Awards

Gulf Group is owned by members of the Al Tawash family, including Saud Al
Tawash. Saud Al Tawash, a Kuwaiti citizen, was the General Manager and one of the
directors of Gulf Group in 2004 and 2005, the time period pertinent to the contracts and
BPAs at issue. Saud Al Tawash also was the Managing Director of Gulf Telecom,
which employed Ms. Blake. Saud Al Tawash was the primary point of contact for the
United States for both Gulf Group and Gulf Telecom.

On September 30, 2004, Maj. Gloria Davis,9 who was at the time the chief of
Army contracting at Camp Arifjan, awarded the camp package BPA to Gulf Group. The
parties stipulated that the camp package BPA, W912D1-04-A-0047, called for “the
provision of tent packages, portable latrines, light sets, bulk water, dumpsters, and
generators for use in Kuwait.” The period of performance on the camp package BPA
was September 30, 200410 through September 30, 2006, with a BPA master dollar limit
of $10,000,000.00, and a BPA call limit of $7,000,000.00. On September 30, 2004, Maj.
9
On December 12, 2006, after speaking with the Army’s Criminal Investigation Division
(CID) at Camp Victory, Maj. Davis committed suicide. The Wall Street Journal reported
that “[o]n December 11, 2006, CID agents met Maj. Davis at Camp Victory in Baghdad’s
Green Zone to ask about $225,000 found in her offshore accounts. Sometime after
midnight, the CID investigators escorted Maj. Davis to her quarters, agreeing to resume
debriefing the next morning. Before dawn, she used her own sidearm to commit
suicide.”
10
There is a slight discrepancy in the camp package BPA as to the period of
performance. In one section, the camp package BPA states the period of performance
begins on September 30, 2004, but in another section, the camp package BPA states
that the period of performance begins on October 1, 2004.

6
Davis issued call No. 0001 for Camp Buehring pursuant to the master camp package
BPA in the amount of $1,447,457.22, with a period of performance from December 15,
2004 through June 15, 2005. Maj. Davis modified the camp package BPA call twice on
September 30, 2004, under Modification No. 101 and Modification No. 102.

John Cockerham was on the Contract Review Board that recommended award of
the camp package BPA to Gulf Group, but he was not the contract specialist or the
contracting officer. The parties stipulated that “Mr. Cockerham was employed by the
Department of Defense (‘DoD’) as a Major in the Army attached to the Army Contracting
Activity, Fort Sam Houston Army Post, San Antonio, Texas, from on or about June
2004, until on or about July 2007.” The parties also stipulated: “From on or about June
30, 2004, through late December 2005, Mr. Cockerham was deployed to Camp Arifjan,
Kuwait, first as a contract specialist and then as a contracting officer upon obtaining a
contracting warrant,” initially for five million dollars. Mr. Cockerham reported to Col.
John Hess, the Director of Contracting at Camp Arifjan in Kuwait. Mr. Cockerham was
responsible for soliciting and reviewing bids for Department of Defense contracts in
support of Army operations in the Middle East, and was authorized to award contracts
after receipt of his contracting warrant in October 2004. Mr. Cockerham has been
convicted of conspiracy, bribery, and money laundering in connection with his
assignment in Kuwait. Mr. Cockerham is currently serving his prison sentence at a
federal facility in Texas. Mr. Cockerham was in federal custody when he testified at trial
in the four above-captioned cases.

On September 28, 2004, Maj. Davis awarded Gulf Group a fixed-price contract
for the provision of latrines and latrine services at Camp Arifjan. The contract, W912D1-
04-P-0932, required four hundred new latrines with daily cleaning services. Mr.
Cockerham was the contract specialist assigned to the contract award. Although Mr.
Cockerham was not a member of the Contract Review Board that recommended that
the latrine contract be awarded to Gulf Group, he signed the Contract Review Board’s
Contract Review Memorandum as the point of contact for the latrine contract. The base
period of the latrine contract was listed as September 28, 2004 through January 21,
2005, with additional option periods totaling twenty-nine months, which could have
caused the contract to be extended through early 2007. After a modification, the
contract price for the base period of the latrine contract was $613,142.86.11 The option
periods were priced at a combined $4,444,752.28.12 Thus, the total potential price of
the latrine contract was $5,057,895.14.
11
The latrine contract indicates that the base period price of 171,680.000 KD was
equivalent to $613,142.86, which is the figure that defendant cites in its briefs. Although
an application of the conversion rate to which the parties have stipulated results in a
base period price of $613,069.28, the court uses the price that appears on the face of a
contract or call, rather than the conversion rate to which the parties have stipulated,
when the contract or call provides a USD figure.
12
The prices for the base and option periods are listed in the original contract in USD,
but a modification to the contract listed the prices for the base period in USD and KD,
and for the option periods in KD. The KD numbers are calculated into USD in plaintiff’s

7
On September 20, 2004,13 Maj. Davis awarded a fixed-price contract, W912D1-
04-P-0897, to Gulf Group for the provision of dumpsters and dumpster services at
Camp Arifjan. Mr. Cockerham testified that he “thought” he was the contract specialist
assigned during the award of the dumpster contract. Mr. Cockerham signed a Contract
Review Board Memorandum as the point of contact for the dumpster contract, although
he was not a member of the Contract Review Board that recommended award of the
dumpster contract to Gulf Group. The base period of the dumpster contract was listed
as September 25, 2004 through March 24, 2005. There were five additional option
periods of six months each following the base period, which were available to extend
the contract through September 24, 2007. The price awarded for the base period of the
dumpster contract was $346,998.00. The combined price of the option periods was
$1,110,621.72. Thus, the total potential price of the dumpster contract was
$1,457,619.72.

On September 28, 2004, Maj. Davis awarded the bottled water BPA, W912D1-
04-A-0052, to Gulf Group for the provision of bottled water. Although Mr. Cockerham,
the contract specialist, was not a warranted contracting officer at the time the BPA was
awarded, and he was not a member of the Contract Review Board that reviewed the
award of the bottled water BPA, his name appears next to the duty position “Contracting
Officer” in the Contract Review Board Memorandum. The base period of performance
for the bottled water BPA was September 28, 2004 through September 28, 2006. The
contract called for the supply and delivery of bottled water to locations in Kuwait and
Iraq. The BPA master dollar limit on the bottled water BPA was $10,000,000.00, and
the BPA call limit was $7,000,000.00. The performance period was extended to
September 7, 2008 by Modification P00001, which also deleted the original
$10,000,000.00 BPA call limit. Modification P00001 was signed by Mr. Cockerham as
the contracting officer on December 20, 2005.

A number of separate incidents are relevant to understanding the events related
to each of the contracts and BPAs at issue in the above-captioned cases. The parties
stipulated that, subsequent to the award of the BPAs and contracts, “COL Patrick

claim. Defendant does not dispute plaintiff’s numbers and agrees that the correct base
period price is represented by the USD and KD figures listed in the contract
modification. Therefore, the total, possible award for the latrine contract appears to
have been $5,057,895.14. In his decision on Gulf Group’s claim with respect to the
latrine contract, which is described below, contracting officer Joseph Libbey, a
warranted level-3, maximum level, contracting officer, stated that the price reflected on
the contract for the base period was inaccurate. The latrine contract, however, states
the price of each line item. The court, therefore, refers to the amounts listed on the face
of the modification to the contract.
13
According to the parties’ joint stipulation of facts, the dumpster contract was entered
into on September 26, 2004. This appears to be an error, however, as the contract
performance period is listed as starting on September 25, 2004, and the signatures on
the dumpster contract are both dated September 20, 2004.

8
Dardis, the ‘Camp Buehring Mayor,’ sent MAJ Robert McKinzie and MAJ Terry England
to conduct a site visit of Gulf Group’s yard at Amgarah on or about October 6, 2004.”
According to Saud Al Tawash and his brother, Megbel Al Tawash, a director of Gulf
Group, and Gulf Group’s Operations Manager in 2004 and 2005, the visit was
conducted to inspect Gulf Group’s preparations for the camp package BPA. Saud Al
Tawash and Megbel Al Tawash testified that this first site visit was very quick and
unannounced, and, although the inspectors “were not happy,” they did not explain their
concerns to Megbel Al Tawash, who had received them. Nevertheless, the government
moved up the period of performance of Gulf Group’s camp package BPA call for Camp
Buehring from December 15, 2004 to November 15, 2004 due to a surge. A second
site visit was conducted on October 13, 2004, by Lt. Theodore Rivera, Capt. William
Trimble, Jr., and Capt. Ryan N. Novak, who were assigned to the contracting office at
Camp Arifjan. The purpose of the second site visit was to ensure that Gulf Group was
prepared to carry out the camp package BPA call. Saud Al Tawash was present during
this second site visit, apparently conducted a day after the termination of the camp
package BPA call at issue, at which time he first learned that the date of the camp
package BPA call was being accelerated due to the surge. Bobby Wilson, Gulf Group’s
Project Manager in Kuwait, also was present during this second inspection and
indicated that the contracting office inspectors were satisfied with their review.
Regarding the second site visit, defendant’s October 20, 2004 Memorandum for the
Record14 on the subject of “Gulf Group Cancellation” states:

During the site visit, the government was able to evaluate the Gulf Group’s
capabilities of meeting the surge. All the equipment (dumpsters, latrines,
generators) on site was brand new and Saud [sic] Tawash (General
Manager) produced copies of the purchase orders for the fire-retardant
tents. Saud informed the CO’s [contracting officers] that he currently has
a contract at Camp Arifjan supplying dumpsters and latrines. The CO’s
believed Gulf Group were [sic] able to do the job and do the job well. Gulf
Group had the technical and logistical expertise, manpower, material, and
equipment, and it was our firm recommendation to allow Gulf Group to
continue with this contract.... On 14 Oct 2004, the 3 CO’s arranged a
meeting with Major Cockerham and Mr. Tijani to meet GG [Gulf Group].
Prior to meeting with GG, the government personnel discussed GG’s
capabilities.... He blessed their capabilities and informed the CO’s he
would follow up with Lt. Col Hess.

At trial, Capt. Novak remembered preparing a memorandum on the subject of
Gulf Group’s readiness to perform the camp package BPA, along with Capt. Trimble
14
The October 20, 2004 Memorandum for Record introduced as an exhibit at trial is
unsigned. Additionally, at the end of the unsigned memorandum, there were hand-
written notations. At trial, it was not established who wrote the October 20, 2004
Memorandum for Record, or who authored the hand-written notes on the document,
with various witnesses disavowing responsibility for the Memorandum for Record and
Mr. Cockerham challenging some of the statements attributed to him in the
memorandum.

9
and Lt. Rivera, and Capt. Novak agreed with the impression that Gulf Group could do
the job well. Capt. Novak indicated remembering a document similar to the
memorandum quoted above. He testified, however, that he did not believe the
memorandum quoted above is the exact memorandum he prepared because of the
phrase, “blessed their capabilities,” which he said “just seems out of place to me.” Capt.
Novak acknowledged that the memorandum quoted above could have been a draft of
the final memorandum he prepared. Capt. Trimble did not remember writing the
memorandum quoted above or any similar memorandum, or assisting anyone in writing
such a memorandum, but stated that “[w]e left with the impression that they could
perform the work.” Capt. Trimble also agreed with statements in the memorandum,
including, “[t]he CO [contracting officer] believed Gulf Group were [sic] able to do the job
and do the job well,” and noted that “Gulf Group had the technical and logistical
expertise, manpower, material, and equipment and it was our firm recommendation to
allow Gulf Group to continue with the contract.”

With regard to Gulf Group’s performance on the dumpster contract, according to
the testimony of M. Sgt. Edward Sivert,15 a contracting officer’s representative who
maintained life support systems, including dumpsters, at Camp Arifjan from March 2004
to February 2005, there were issues with Gulf Group not having enough dumpsters to
replace Future Services, a rival contractor, when Gulf Group took over performance of
dumpster services at Camp Arifjan between mid-September and October 10, 2004.
M. Sgt. Sivert testified that, as a result of this dumpster shortage, trash appeared on the
ground in different areas of Camp Arifjan over the course of a week or so, although no
item of trash necessarily had been on the ground for a full week. According to plaintiff,
the government had reduced the number of dumpsters below the number required from
previous contractors.16 Following the termination of Gulf Group’s dumpster contract, the
government awarded the contract to another contractor, Green Valley, and required two
hundred sixty-five dumpsters, which was thirty-two more dumpsters than the
government had ordered plaintiff to provide. M. Sgt. Sivert explained that the trash on
the ground was not necessarily caused by the alleged reduction in the number of
government-requested dumpsters because some of the dumpsters had been located at
the ball field, which was closed. When asked, “if there is trash on the ground because
there is no [sic] sufficient dumpsters, whose fault is it,” M. Sgt. Sivert replied “probably
the government’s at that time, if there was enough dumpsters to put there.” M. Sgt.
Sivert further explained that not all of the other dumpster contracts had run out by
September 30, 2004, and that both Future Services and Gulf Group had dumpsters on
base at the same time. M. Sgt. Sivert noted that he was not present when Gulf Group
allegedly had insufficient dumpsters on site. He also testified that he remembered Gulf

15
Edward Sivert was a Sergeant First Class, rather than a Master Sergeant, during the
time of the relevant BPAs and contracts.
16
According to a spreadsheet introduced into the record, which plaintiff asserts was
prepared by a Maj. Ken Braddock, there were three hundred fifty-one dumpsters that
were expired and renewed between June 2003 and September 2004. The Army
contracted with Gulf Group for the provision of two hundred thirty-three dumpsters.

10
Group’s dumpsters being blue and Future Services’ dumpsters being “[g]oldish brown.”
Saud Al Tawash testified, however, that Gulf Group’s dumpsters were painted red.

According to Saud Al Tawash, there was an incident with trash on the ground in
September 2004, which he attributed to “dirty competitors or dirty practices.” Saud Al
Tawash testified that other contractors had flipped over their own dumpsters, causing
trash to pile up on the ground. Megbel Al Tawash also testified that he believed the
trash on the ground on the first day of Gulf Group’s performance resulted from other
companies tipping over their dumpsters. Mr. Cockerham, who was a contract specialist
at Camp Arifjan at the time, testified that he had never heard of any problems with Gulf
Group’s dumpsters.

According to Joseph Libbey, the contracting officer who issued the final decisions
on Gulf Group’s latrine and dumpster contracts and camp package BPA claims, a police
report that was in the contract files, which he reviewed while considering Gulf Group’s
claims, indicated that employees of Gulf Group were scavenging through dumpsters at
Camp Arifjan. The police report that Mr. Libbey referred to, however, was addressed to
another contractor, Gulf Company, as opposed to plaintiff Gulf Group. During testimony
at trial, Mr. Libbey indicated that “I took Gulf Company to mean Gulf Group, I mean it’s
got Gulf and then Co. over here.” The parties have stipulated, however, that “Gulf
Company is not associated or related in any way with Gulf Group, Gulf Telecom, or any
of the Al Tawash family members.” The two companies are distinct organizations, and
the record does not reflect that the government has ever issued any cure notices to Gulf
Group regarding performance under the dumpster contract. Moreover, Saud Al Tawash
testified that he received no performance complaints related to the dumpsters under the
contract.

Gulf Group’s performance of the latrine contract appears to have been
contentious since its inception, or even before, as Mr. Cockerham testified at trial that,
prior to the initiation of contract performance on the latrine contract, Col. Hess had
received a telephone call from Sally Ziedan of the incumbent contractor, Future
Services, who was “livid going off about how dare he. How could he let Maj.
Cockerham go ahead and award the latrine contract to Gulf Group and how much
experience they had, and she was just raving.”17

Mohammed Al Tawash, Saud Al Tawash’s and Megbel Al Tawash’s brother, was
asked to oversee the servicing of the four hundred Gulf Group latrines. Mohammed Al
Tawash also was a shareholder in Gulf Group, although, according to his testimony, he
only worked for Gulf Group on one occasion, October 7, 2004, which was his first time
at Camp Arifjan. On that day, Mohammed Al Tawash carried a notepad, asked the
military escorts for a map, and asked questions about the location of the cafeteria and
other buildings where latrines were to be placed. Mohammed Al Tawash testified that
he requested the information because Gulf Group did not have a service route for the
latrines, and a map could enable Gulf Group to be more efficient and effective in its
performance of the latrine contract. The parties stipulated that, “[o]n October 7, 2004,
17
According to Mr. Cockerham, Future Services’ bid had arrived two days late.

11
four Gulf Group employees, were detained by Military Police and/or Counterintelligence
officers at Camp Arifjan. After being questioned, they were released to the Kuwait
Ministry of the Interior” and a Military Police Report was generated regarding the
incident. The police report stated that Mohammed Al Tawash asked questions
regarding locations on base for latrine placement.

According to Mohammed Al Tawash, the military escorts answered his questions
and he did not remember the escorts questioning his need for information or the
building locations. The military escorts worked in three hour shifts and, after the second
shift, Mohammed Al Tawash and the three other Gulf Group employees with him
returned to the security station, hoping that a third escort could be arranged.18 At that
time, Mohammed Al Tawash and the other three Gulf Group employees were detained
and interviewed by military police, who were not in uniform, but dressed in what
Mohammed Al Tawash testified was “evening night out attire.” The military police did
not search him or the vehicle the Gulf Group employees were driving. Mohammed Al
Tawash was not asked to sign any paperwork, nor was he fingerprinted. The notepad
he used to draw a service map and to take notes on the latrines that had already been
serviced was confiscated and not returned. The military police turned the Gulf Group
employees over to the Kuwait Ministry of the Interior, and they were transported to a
police station. According to Mohammed Al Tawash, at the police station a detective
asked them questions, requested their civil identifications, ran a background check, and
cleared them shortly before midnight on the same day, October 7, 2004. Mohammed Al
Tawash testified that they were released, no charges were filed against them, and they
were not asked to return for a hearing. According to Saud Al Tawash, none of Gulf
Group’s employees were barred from the United States military camps as a result of this
incident or any other incident. Mohammed Al Tawash testified that he was not able to
finish cleaning the latrines that day, but believed a vacuum truck returned to finish the
job. He was unsure how many latrines remained to be serviced. Mr. Wilson testified
that he had heard that Mohammed Al Tawash had been using a GPS on base, and had
a cell phone with him at the time he inquired about the latrines, but could not confirm the
accuracy of the information. Capt. Novak also reported hearing something about a GPS
incident and Gulf Group, but he did not necessarily remember anything about workers
asking allegedly suspicious questions. Mr. Wilson indicated that he “grilled him
[Mohammed Al Tawash] pretty hard” about the alleged security incident afterward and
instructed him, as a precaution, not to ask similar types of questions on base.

According to Col. Laurence Portouw, the Third Army Assistant Chief of Staff who
ran the intelligence organization for the staff that supported the General at the Third
Army at Camp Arifjan and in Atlanta, Georgia, one of his staff officers told him about the
alleged security incident involving Gulf Group personnel and said that the contract was
going to be cancelled. Col. Portouw was asked whether he could have the cancellation
delayed so that the incident could be examined. Thereafter, Col. Portouw called Col.
Brick Miller, Commander of the Area Support Group in Kuwait, stationed at Camp
Arifjan, about the incident. During this call, Col. Portouw asked Col. Miller to delay
18
At trial, Mohammed Al Tawash was unclear as to whether he asked questions of both
the first and second shifts of escorts, or only of a single shift.

12
cancellation of Gulf Group’s contract so the intelligence organization could look into the
incident. Ultimately, a case was not opened on the incident involving Gulf Group
because, according to Col. Portouw, “there was no substance to it” and the questions
asked by Mohammed Al Tawash were “innocent.”

According to Col. Miller, he received a telephone call asking him to delay
termination of Gulf Group’s contract, but he does not recall who the call was from,
although he admitted that “it could very well” have been from Col. Portouw.19 Col. Miller
also indicated that during this telephone call he was informed that the Counter
Intelligence Team was looking into whether Gulf Group was involved in detonating
improvised explosive devices (IEDs) using cell phones, and he “took that as they [Gulf
Group] were aiding and abetting those that detonated IED’s with cell phones.”
According to Col. Miller, he notified Col. Hess of the request to delay cancellation, and it
was his understanding that Col. Hess then deferred the termination.20 Col. Portouw,
however, testified that he did not tell Col. Miller that Gulf Group employees were
suspected of detonating IEDs with cell phones because he was “not even sure I knew
who the company was at the time.” According to Capt. Jacquelyn Olsa,21 the S222
intelligence officer at Camp Arifjan in October 2004, who reported to Col. Miller, she did
not have any discussions with Col. Miller about IEDs related to Gulf Group. She did
believe, however, that she would have discussed the alleged security incident with Col.
Miller, although she did not specifically remember doing so.

Col. Portouw indicated that such incident reports were not frequent, but also not
uncommon, and that, “invariably we found out that they were curiosity-generated reports
and simply required explaining to the employee why they shouldn’t do that.” Capt. Olsa
indicated that similar incidents would typically occur “once a week,” although she
indicated that she would “recommend a bar for these types of activities.” Col. Miller felt
the incident was not particularly important. When asked, Col. Hess agreed that the
failure to give a contractor a schematic plan of the camp could complicate performance,
particularly during startup, and that a layout with the number and locations of latrines
would be of considerable use to a new contractor. Like Col. Hess, Maj. Timothy Petty,
the support operations officer under the director of logistics at Camp Arifjan who

19
In a July 7, 2010 email to Capt. Lisa Satterfield of the office of the Judge Advocate
General, Col. Miller indicated that he had received a phone call from “[t]he CFLCC/3rd
AR C2/G2, a COL whose name escapes me,” and the officer stated that he had heard
the contractor would be terminated for deficiency and asked for a delay of the
termination.
20
As described in greater detail below, Col. Hess testified that he reviewed Gulf Group’s
contract files and found no documentation linking the Al Tawash family to terrorists, anti-
American groups, the Taliban, Saddam Hussein, or any other enemies of America.
21
At the relevant time, in Kuwait in 2004, Capt. Olsa was known as Capt. Hellmeier.
22
The S2 refers to an intelligence officer at the coordinating staff level.

13
oversaw latrine contracts, testified that the provision of a map of where latrines should
be located was a good idea.

As a result of the alleged security incident, Col. Miller sent warning letters on
October 21, 2004 to Saud Al Tawash, Marcos Sotos, Bobby Wilson, Mohammed Al
Tawash,23 Fizan Abdula, Mohadien Asif, and Munir Ahmed regarding Gulf Group and its
employees not following certain unspecified security regulations. According to Saud Al
Tawash, only four of the letter recipients (Mohammed Al Tawash, Fizan Abdula,
Mohadien Asif, and Munir Ahmed) had been involved in the incident. Although not
consistent with other testimony he offered at trial, Col. Miller testified that he first
became aware of the alleged security incident concerning Gulf Group when he signed
these warning letters. Col. Miller indicated that “[t]housands” of warning letters such as
these were sent at that point in time in Kuwait and that this incident had “[n]othing to do
with” the termination of Gulf Group’s contracts and camp package BPA call.

In addition to testifying about the alleged security incident, Col. Miller also
testified about a latrine incident. According to Col. Miller, on a day in September or
October 2004, he was summoned by Maj. Gen. Gary Spear24 to view about twenty
latrines in front of headquarters and facing the dining facility, which, according to Col.
Miller, were “in a deplorable state of affairs or condition.” Col. Miller agreed with
plaintiff’s counsel’s characterization of Maj. Gen. Spear having a “one-sided
conversation” with Col. Miller, and which Col. Miller characterized as “a chewing out,
basically,” about fixing the latrines. Col. Miller testified that liquids were “overflowing out
of the toilets,” and that it was a “life health safety issue” affecting “all of the latrines that
were there, because we opened every door.” At the trial, Col. Miller further described
the overflowing latrines as follows: “It’s coming over. It’s on the floor. It’s on the seat.”
According to Col. Miller, either Col. Fugate, Col. Miller’s executive officer, or Col. Hess
was with him when he viewed the latrines, but he was not sure which officer was with
him. Col. Miller testified that either he told Col. Hess to fix the issue or had Col. Fugate
tell Col. Hess to get it fixed. According to Col. Miller, there were no subsequent
complaints, and Maj. Gen. Spear did not summon him again to view the latrines.

Joseph Libbey wrote in his contracting officer’s final decision on Gulf Group’s
contract and BPA claims that Maj. Gen. Spear not once, but twice, had “summoned
Colonel Miller and LTC Hess to, again, observe the deplorable conditions of the
latrines.” When Col. Hess testified at trial, he did not recall the latrine incident, and
testified that he did not recall ever seeing even one latrine overflowing. When
questioned about Mr. Libbey’s contracting officer’s final decision, which found, in part,
“[b]arely a week had passed from the first latrine inspection when the General again
summoned Colonel Miller and LTC Hess to again observe the deplorable conditions of
the latrines,” Col. Hess testified that he certainly did not recall a second latrine incident
a week after the alleged first incident. Furthermore, contrary to Col. Miller’s testimony,
23
The letter to Mohammed Al Tawash was incorrectly directed to “Mohammed
Altawash.”
24
Maj. Gen. Spear is sometimes referred to as Maj. Gen. “Spears” in the trial transcript.

14
Col. Hess testified that no one ever directed him to fix the dirty latrine. According to Mr.
Cockerham, the dirty latrine was in front of Maj. Gen. Spear’s office, and it was a one-
time issue in which one latrine was not cleaned, and was subsequently corrected. Mr.
Cockerham testified that he believed the latrine issue was used as an excuse to
terminate Gulf Group’s latrine contract because Maj. Petty wanted to consolidate two
latrine contractors into one, and because Maj. Petty preferred Future Services as the
contractor.

According to Maj. Petty, he learned of a latrine problem while he was at a
meeting at Camp Doha, through a call from Lt. Col. Platt, who told him that “he had
received a phone call, that they were, that they [the latrines] were just really dirty,
disgusting, and I needed to get it fixed.” Maj. Petty testified that he personally inspected
a group of eight to ten Gulf Group latrines in a high-traffic area between the dining
facility and headquarters after 5 p.m., which had “feces above the rim.” He indicated
that “there was one that was extremely bad and then the others were just unkept,” but
that all but one were usable. He did not recall seeing any debris in the basin of the
latrines. After seeing the latrines, Maj. Petty called one of the non-commissioned
officers in his office, which may have been M. Sgt. Seibert,25 who served the role of
contracting officer representative for Gulf Group’s latrine contract, to make him aware of
the situation. Maj. Petty did not recall any specific conversation with Col. Hess about
the latrine issue, but did make Col. Miller, who was at the same meeting at Camp Doha,
aware of the situation. According to Maj. Petty, Gulf Group was contacted to resolve
the issue, which he believes Gulf Group resolved the following day, and there were no
further incidents.

Saud Al Tawash testified that he never received a non-conformance report or
written complaint about Gulf Group’s latrine contract. Saud Al Tawash did, however,
receive a call about a single overflowing latrine next to the dining facility, which,
according to his on-site superintendent, was filled with empty plastic bottles, even inside
the sewage tank “as if somebody was storing plastic bottles.” According to Saud Al
Tawash, Gulf Group’s latrines were unplumbed, such that it was “not possible” for them
to overflow. Saud Al Tawash also testified, however, that the single, overflowing latrine
was an “isolated event.” Saud Al Tawash believed that this incident was due to people
storing plastic bottles in the latrine for recycling, or a cultural issue for third country
nationals on Camp Arifjan, who were not used to unplumbed latrines.

According to trial testimony from Megbel Al Tawash, Gulf Group’s office received
a call that one latrine had feces up to the brim, which plaintiff’s on-site supervisor
cleaned that same day. Megbel Al Tawash indicated that a Gulf Group latrine was
“overflowing with bottles of water and feces.” Megbel Al Tawash testified that Future
Services had about eight to ten latrines in the same area near the mess hall. Mr.
Wilson testified that, because the latrines from various companies all looked the same,

25
Maj. Petty testified that “M. Sgt. Seibert” oversaw the latrine contract. It is unclear
whether Maj. Petty’s testimony refers to M. Sgt. Sivert, who as indicated above,
maintained life support systems at Camp Arifjan, including dumpsters.

15
it was possible that the dirty latrine, or the latrines involved in the incident, belonged to
another contractor.

Maj. Petty testified that Future Services still had latrines in place when Jasmine
International Trading & Service Company (Jasmine) and Gulf Group first arrived, so that
these new contractors would know where to put the latrines, and that, as a result, two
sets of latrines may have been in a particular area at the same time. Maj. Petty also
testified that, to the best of his recollection, servicing the latrines once a day would have
been sufficient. The statement of work for Gulf Group’s latrine contract stated, in part:

4.2 Cleaning. The Contractor will empty and clean each latrine daily by
wiping down interior walls and seat with mild disinfectant water or solution
(that is nonharmful to the skin and eyes) and will provide steam cleaning
reconditioning services once a month. The Contractor will provide all
materials, equipment, personnel, chemicals, and cleaning supplies to
include using an approved disinfectant. The Contractor will provide a
Material Safe Data Sheet to the COR for any chemicals used in this
contract. The cleaning services will include the following:

4.2.1 Daily. The Contractor will vacuum sewage from the basin. Debris
such as cans, bottles, rags, sticks, etc. will be removed from the waste
tank, collected and hauled away for proper disposal. No debris will be
allowed to contaminate the outside area around the chemical latrine. The
Contractor will be responsible for cleanup of any spills. After all sewage
and debris have been removed the Contractor will wash the toilet seat,
urinal, and adjacent area around the toilet seat with the approved cleaning
solution and remove all built up dirt and waste by scrubbing with a nylon
hand brush. The Contractor will fill the empty basin with a mixture of two
(2) cups disinfectant solution and ten (10) gallons fresh water. The
Contractor will refill toilet paper dispensers and hand sanitation gel
dispensers. The Contractor will leave the area in and around the latrines
in a sanitary state.

(emphasis in original). Based on his experience, Col. Hess believed that a contract that
only required service of latrines once a day in high-traffic areas like the mess hall or
headquarters may have set a contractor up for failure because these areas should have
been cleaned twice a day. Steven Perry, a former Army Colonel and plaintiff’s expert
on issues of Army contracting and standard practices and procedures for Army
contracting,26 also testified that, if the government sets a once-per-day cleaning
requirement for latrines, but has not anticipated the extent of the usage, the state of
uncleanliness of the latrines may not be attributable to the contractor, but rather to faulty
26
Mr. Perry was qualified as an expert in the standard practices and procedures of
Army contracting, including the subjects of the solicitation, award, management,
administration, closeout, and termination of contracts. Mr. Perry also was qualified as
an expert on the interrelationship and interface of those same practices and procedures
with basic principles of command and control.

16
specifications, and that, if the specification underestimates usage, the specifications
may need to be altered. Moreover, according to Mr. Perry, if bottles of water were
found in a latrine, it would be the fault of the “end-user,” not of the contractor.

Mr. Perry further stated that “in a latrine contracting situation, you get all kinds of
garbage dumped in the latrines all the time. That happens to be a performance issue.
That is why this type of contract is very hard to manage.” During his testimony, Col.
Miller also indicated that latrines are “a subject that you have to watch,” and that he
would expect that, if a contracting officer representative had seen the latrine incident, a
non-conformance report would have been prepared “[a]t some point.” In contrast, Col.
Hess testified that “we generally did not have problems with latrine contracts.”
According to Col. Hess, a contractor missing a group of latrines during servicing was not
uncommon and was not considered a serious offense warranting termination for default.
Col. Hess further testified that, to his knowledge, his contracting office had no
performance problems with Gulf Group and that Gulf Group’s latrine contract was not
terminated for failure to clean the latrines. Mr. Perry also testified that he does not think
latrine contracts are “hard to manage, as long as you set in place what needs to be
done.”

There is confusion and inconsistency in the record as to the timing of the latrine
incident relative to the alleged security incident involving Mohammed Al Tawash. In his
July 7, 2010 email to Capt. Satterfield, Col. Miller indicated, almost six years after the
event in question, that he believed the latrine incident occurred in the week prior to the
alleged security incident. According to Maj. Petty, the support operations officer at
Camp Arifjan who oversaw numerous latrine contracts, the alleged security incident
occurred before the latrine incident, the latter of which occurred in the “October time
frame.” Maj. Petty testified that, “[i]nitially before the deposition and we met, I would
have said it [the questions incident] was after the dirty latrines. But after reviewing the
notes that you [plaintiff’s counsel] showed me to refresh my memory, that it was before.”
According to Mr. Wilson, the latrine incident was before the alleged security incident.
Mr. Wilson stated, “you know, first it was this issue in the latrine, and the next thing it’s
the issue of Mohammed. And the next thing it’s the issue of a counterintelligence
measure.…”

Terminations of the Camp Package BPA Call, the Latrine Contract, and the
Dumpster Contract

Maj. Davis terminated Gulf Group’s camp package BPA call at Camp Buehring
on October 12, 2004, through Modification 103. According to the parties’ joint
stipulation of facts, the camp package BPA call was terminated for the government’s
convenience, although this is not clearly indicated on Modification 103. The
modification stated: “The purpose of this modification is to cancel the BPA call with Gulf
Group. Gulf Group has no issues with this cancellation and will accept it at no cost to
the government.” Despite terminating the camp package BPA call, the government had
sufficient funds to pay for, and continued to be in need of, the camp package services.
The same day the cancellation was issued, Future Services was awarded two BPA calls

17
for Camp Buehring for approximately the same amount of goods and services as Gulf
Group’s cancelled camp package BPA call.

Plaintiff’s initial submission to the contracting officer in relation to the camp
package BPA call termination indicated that the termination was made in order to award
Gulf Group another BPA call. Plaintiff’s statement was supported by some of the
testimony at trial, which indicated that the termination of the Camp Buehring camp
package call was conditioned on the award to Gulf Group of a camp package call for
Camp Virginia. During cross-examination at trial, Saud Al Tawash indicated that he
may have agreed to the termination of the Camp Buehring camp package call based
upon the assurance that he would receive a camp package call for Camp Virginia.
Saud Al Tawash testified that he had asked for the paperwork to be sent over for the
proposed swap, which he never received. The parties have stipulated that “BPA Call
No. 0002 under Master BPA 0047 for general camp package services at Camp Virginia
was prepared for Gulf Group but never signed.” Saud Al Tawash indicated at trial that
he had received an undated hand-written note from Mr. Cockerham, stating:

Here is a copy of the cancellation to Camp Buehring. This cancellation
was made because we were giving you a larger camp call Virginia.
Virginia award was verbal with the agreement to cancel Buehring. Virginia
was not awarded on paper as a command directive. The original
cancellation was sent out 13 Oct 04. But here is another copy as
requested. Thank you.

From this note, Saud Al Tawash testified that he understood that the Army would
not award Camp Virginia to Gulf Group. Mr. Cockerham testified, however, that he may
have sent the note as a “reassurance” and that the note was intended to convey that a
call for Camp Virginia had been verbally “awarded,” but that Col. Hess had ordered
contracting personnel not to award Camp Virginia “on paper” because he may have
been considering another contractor for the Camp Virginia call and because Col. Hess
“was checking on...some other issues from perhaps a security report.” Instead, the
camp package call for Camp Virginia was initially awarded to StarCon, Ltd. (StarCon),
but the BPA call issued under that BPA was cancelled on October 11, 2004 by Maj.
Davis, and ultimately was awarded to Kamal Al Sultan Company (KMS) on October 14,
2004.

On October 18, 2004, Mr. Cockerham issued Modification P00002, which
terminated plaintiff’s latrine contract pursuant to 48 C.F.R. § 52.212-4. The description
of Modification P00002 reads: “This contract is being canceled due to command
directive of the ASG [Army Support Group] commander SWA COL Brick Miller 3rd Army
Arcent Kuwait. The contract is canceled under the terms of 52.212-1, 52-212-4 [sic],
52.249-4.” According to the parties’ joint stipulation of facts, the latrine contract was
cancelled on October 24, 2004, pursuant to Modification P00003, but the description of
Modification P00003 reads: “Modification to this previously canceled contract by order of
the ASG Commander Kuwait COL Miller. This mod is to remove money from previously
canceled contract that was ordered [sic] to be canceled. Contract was canceled in

18
accordance with FAR Part 52.212-4.” Despite terminating Gulf Group’s latrine contract,
the government had sufficient funds to pay for, and continued to be in need of, the
latrine services. The parties stipulated that “[a]ll or part of the service that was initially
awarded to Gulf Group under the latrine contract was awarded to Jasmine.” Following
termination of the latrine contract, the government continued to place orders for latrines
with Gulf Group for other locations, including Camp Victory, Camp Crossing, and the
Ash Shuaybah Sea Port of Debarkation.

On October 22, 2004, Mr. Cockerham issued Modification P00005 on behalf of
the Army, which terminated Gulf Group’s dumpster contract for the convenience of the
government.27 Modification P00005 reads: “Contract is cancelled by order of the ASG
Commander Kuwait COL Brick Miller. Contract was canceled in accordance with FAR
Part 52.212-4 Termination for Convenience of the Government.” Despite terminating
the dumpster contract, the government had sufficient funds to pay for, and continued to
be in need of, the dumpster services. Prior to the termination of Gulf Group’s dumpster
contract, on October 14, 2004, the government sent a request to Fouad Salem of Abdul
Hameed Salem, seeking a quote for dumpster services at Camp Arifjan, to which Fouad
Salem responded. Four days later, on October 18, 2004, and before plaintiff’s dumpster
contract was cancelled, a contract for dumpster services was awarded to Green Valley.
After Gulf Group’s dumpster contract was terminated, however, the government
continued to order dumpsters from Gulf Group for the Ash Shuaybah Sea Port of
Debarkation.

Despite the language contained in the modifications terminating the camp
package BPA call and the latrine and dumpster contracts, at trial, a number of
witnesses offered contradictory testimony as to the reasons for the multiple
terminations. Although contradicted by other witnesses, Col. Miller indicated that he did
not direct, nor was he involved in, the termination of the camp package BPA call, the
latrine contract, or the dumpster contract.28 Col. Miller stated that contracting was a

27
The parties’ joint stipulation of facts states that Mr. Cockerham issued the termination
on October 22, 2004. Although Mr. Cockerham signed the modification terminating the
contract on October 21, 2004, October 22, 2004 is shown as the “effective date” of the
termination. Gulf Group was faxed the modification on October 28, 2004.
28
For example, during direct examination, Col. Miller was presented with a copy of
Modification P00005 to the dumpster contract, which stated: “Contract is canceled by
order of the ASG Commander Kuwait COL Brick Miller. Contract was canceled in
accordance with FAR Part 52-212-4 Termination for Convenience of the Government.”
After the Modification P00005 to the dumpster contract was read into the record, Col.
Miller and plaintiff’s counsel had the following exchange:

Q: Is that statement true and correct?

A: No, sir.

19
completely separate command structure from his own command, and that he did not
have the authority to terminate or award contracts. Col. Miller also testified, however,
that the Gulf Group terminations were not related to the alleged security incident,
indicating at least some awareness of the whole situation. In addition, according to
Clea Efthimiadis, a United States Army29 civilian attorney assigned to Camp Arifjan at
the time, Col. Miller represented to her that Gulf Group’s latrine contract “was
terminated because they couldn’t do the job,” and that the contract was terminated for
default based on a “repeated failure to perform to the statement of work.” As noted
above, however, Gulf Group’s contracts and camp package BPA call were terminated
for the convenience of the government.30

Q: Do you have any idea on your -- this is going back to your knowledge
and -- mind you -- why Major Cockerham would have said that you
ordered this termination?

A: Can you be more specific than, “any idea?” Any idea at that time? Any
idea now? Any idea hearsay?

Q: Very good point. In -- you’ll notice the effective date of this is October
22, 2004. In 2004, did you have any idea -- did you even know that this
contract had been canceled?

A: Sir, I couldn’t have told you that this contract even existed in this form.
Because I didn’t talk to contractors. I didn’t --

Q: This is not your command.

A: -- correct. I had no reason to look at these, nor do I have any reason to
look at when they cancel them.
29
Although formerly a civilian attorney for the United States Army, Ms. Efthimiadis was
an attorney for the United States Navy when she testified in the above-captioned cases.
30
The distinction between termination for default or cause and termination for
convenience is evident from the termination clauses in the camp package BPA:

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, the Contractor shall
immediately stop all work hereunder and shall immediately cause any and
all of its suppliers and subcontractors to cease work. Subject to the terms
of this contract, 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 reasonable charges the Contractor can demonstrate to
the satisfaction of the Government using its standard record keeping
system, have resulted from the termination. The Contractor shall not be
required to comply with the cost accounting standards or contract cost

20
Col. Hess, the head of contracting at Camp Arifjan at the relevant time, offered
inconsistent and self-serving testimony at trial, but generally testified that he believed
Gulf Group’s camp package BPA call, latrine contract, and dumpster contract were
terminated because of security concerns, and that Col. Miller gave a directive or order
to terminate the contracts. According to Col. Hess’ testimony, Col. Hess ordered Mr.
Cockerham to terminate Gulf Group’s latrine and dumpster contracts, and Col. Hess
ordered Maj. Davis to terminate Gulf Group’s camp package BPA call, because “[w]e
were ordered to get Gulf Group off the bases, the camps.” Col. Hess indicated that this
order to remove Gulf Group from the bases did not come from Col. Mark Neumann, the
Principal Assistant Responsible for Contracting at Camp Arifjan in October 2004, to
whom Col. Hess reported, or anyone in ARCENT (United States Army Central
Command). He also stated that he had reviewed the contract files, and that none of the
files included any documentation linking the Al Tawash family to terrorists, anti-
American groups, the Taliban, Saddam Hussein, or any other enemies of America.
According to Mr. Wilson, however, Col. Hess told him that Gulf Group’s contracts were
terminated due to “counterintelligence on the Al Tawash family, and they have ties [to]
Al Qaeda and Saddam Hussein.” Notably, Col. Hess testified that the government
terminated Gulf Group for convenience, rather than for default, so that Gulf Group could
file claims for reimbursement because the government did not “want to cause any
undue hardship” to Gulf Group. Col. Hess further stated that he does not believe that a
termination for default is proper even if a contractor is suspected of anti-American ties
or sentiments.

According to Col. Portouw, the Gulf Group cancellations “had something to do
with performance with latrines,” but he did not recall who told him that and did not
indicate to which Gulf Group contract he was referring because he never referred
specifically to any particular contract during his testimony. According to Maj. Petty’s
recollection, Gulf Group’s contracts were terminated because of the alleged security

principles for this purpose. This paragraph does not give the Government
any right to audit the Contractor’s records. The Contractor shall not be
paid for any work performed or costs incurred which reasonably could
have been avoided.

Termination for cause. The Government may terminate this contract, or
any part hereof, for cause in the event of any default by the Contractor, or
if the Contractor fails to comply with any contract terms and conditions, or
fails to provide the Government, upon request, with adequate assurances
of future performance. In the event of termination for cause, the
Government shall not be liable to the Contractor for any amount for
supplies or services not accepted, and the Contract shall be liable to the
Government for any and all rights and remedies provided by law. If it is
determined that the Government improperly terminated this contract for
default, such termination shall be deemed a termination for convenience.

21
incident, as opposed to the dirty latrine incident.31 Maj. Petty testified that he had never
heard of Gulf Group having any affiliation with the Taliban.

Capt. Novak also testified that a Gulf Group contract was terminated because of
a “security incident.” Capt. Novak disagreed with the decision to terminate Gulf Group’s
camp package BPA call, and although he was at first unable to meet with Col. Hess,
Capt. Novak did meet with Col. Neumann32 to discuss his disagreement with the
termination. Capt. Novak also indicated that he did not feel that he was going outside
the chain-of-command or risking his career by doing so. Eventually, Capt. Novak was
able to meet with Col. Hess to voice his disagreement with the decision to terminate
Gulf Group’s camp package BPA call. Capt. Novak also met with Tijani Saani, a civilian
assigned to the contracting office at Camp Arifjan, who was the deputy to Col. Hess,
about the decision. Capt. Trimble also spoke to Col. Neumann about terminating Gulf
Group’s camp package BPA call and told Col. Neumann that he believed Gulf Group
was capable of performing. Capt. Trimble indicated that he had heard that Gulf Group’s
camp package BPA call was going to be terminated because the camp “mayors”
preferred to keep their current contractors to avoid interruption of services.

Mr. Cockerham testified that he terminated Gulf Group’s latrine and dumpster
contracts based on a direct order from Col. Hess, who himself had been ordered to
terminate the contracts by Col. Miller. According to Mr. Cockerham, a termination for
convenience in the interest of national security relieves the government of liability for
“any losses.”33 Mr. Cockerham stated, however, the termination has to be or should be
heavily documented, which is why he requested a report to document the file, to protect
the contracting office and the government. According to Mr. Cockerham, Col. Hess
directed him to cancel Gulf Group’s contracts “in the interest of security, national
security.” Mr. Cockerham further testified that Col. Hess said that a call for Camp
Virginia should not be awarded to Gulf Group because they were a security risk.
According to Mr. Cockerham, he asked Col. Miller and Col. Hess for a security incident
report, or even just the incident number, to attach to the latrine and dumpster contract
cancellations, but they never gave him one. Capt. Trimble testified that Mr. Cockerham
was upset that he never received a Memorandum of Record from Col. Hess, stating that
Col. Hess directed Mr. Cockerham to cancel Gulf Group’s contracts. At trial, Col. Hess
31
Maj. Petty’s testimony on this point appears to be related to the termination of three of
plaintiff’s contracts, the camp package BPA call and the latrine and dumpster contracts,
although his testimony is not explicit in this regard.
32
Although the trial transcript refers to “Col. Newman,” other areas of Capt. Novak’s
testimony refer to Col. Neumann, Col. Hess’ superior and the Principal Assistant
Responsible for Contracting at Camp Arifjan.
33
Mr. Cockerham subsequently elaborated that in his mind, “[t]he only time the
government can possibly get around reimbursing in the interest of convenience is in the
interest of national security.” It is unclear from Mr. Cockerham’s testimony whether he
believed that a termination for convenience in the interest of national security absolves
the government of all liability or only liability relating to “losses.”

22
denied that either Mr. Cockerham or Maj. Davis had asked for a security incident report
in order to support the cancellations of the contracts or the camp package BPA call.

The October 20, 2004 Memorandum for Record, which Capt. Novak stated is
similar to the one he wrote with Capt. Trimble and Lt. Rivera, provides that, “Major
Cockerham informed the CO’s to cancel the [camp package] BPA call to Gulf Group
due to their inexperience in building tents,” and that the contract should be awarded to
British Link Kuwait, although its prices were “unreasonably” high. At trial, however, Mr.
Cockerham denied having told Capt. Trimble, Capt. Novak, and Lt. Rivera that Gulf
Group’s camp package BPA call was being terminated due to Gulf Group’s
inexperience in building tents, or that it was in the government’s best interest to award
the call to British Link Kuwait. Mr. Cockerham testified he believed that Tijani Saani told
Capt. Trimble, Capt. Novak, and Lt. Rivera that the statements were coming from Mr.
Cockerham, when they actually came from Col. Hess.

Joseph Libbey stated in his contracting officer’s final decisions, and testified at
trial, that he believed that the contracts were terminated due to dumpster diving and
rummaging through camp dumpsters, perhaps the latrine issue, and security reasons.
In Mr. Libbey’s final decision for the dumpster contract he stated: “On 9 October 2004,
six Gulf Group employees were detained for security violations involving traveling on
Camp Arifjan without their required escort, and rummaging through a dumpster. At
least four of these individuals were barred from Camp Arifjan by Colonel Miller on 16
and 18 October 2004.” The contractor allegedly involved in dumpster diving, however,
was Gulf Company, not Gulf Group. At trial, Mr. Libbey testified that he “took Gulf
Company to mean Gulf Group.” Mr. Libbey’s final decision on Gulf Group’s dumpster
contract also stated:

The Government originally contemplated terminating Gulf Group’s
contracts for failure to comply with security regulations; however, due to
the global war on terror operational tempo in the area, and a desire to
maintain a friendly working relationship with local contractors that often
include prominent Kuwaiti families, the Government decided to terminate
the contract for the convenience of the Government.34

According to Saud Al Tawash and Mr. Wilson, they first learned that Gulf Group’s
latrine and dumpster contracts and camp package BPA call were being terminated
through their competitors. According to Saud Al Tawash, he first heard rumors about
the cancellations from an individual working with a competitor, Jasmine, who told him
“they’re going to cancel all your contracts because they have a report of an intelligence
that you guys are related to terrorist groups and you’re anti-American.” Saud Al Tawash
also testified that Mr. Wilson was then told “directly from the contracting office” that
34
Mr. Libbey testified that Mr. Randall Kemplin, a government civilian counsel who
worked with Mr. Libbey on the claims, wrote the above quoted paragraph, which was
incorporated into Mr. Libbey’s contracting officer’s final decision. Although Mr. Libbey
was not aware of how Mr. Kemplin had obtained the information, Mr. Libbey stated he
was “good with it.”

23
there was a “security” and a “counter intelligence concern,” and that the contracting
office alleged that the alleged security incident was the reason for the cancellations. At
trial, Saud Al Tawash also pointed out that the contracting officer, Mr. Libbey, made a
final determination that the contracts were terminated due to the alleged security
incident. Saud Al Tawash testified that Capt. Trimble, Capt. Novak, Lt. Rivera, and
Tijani Saani all told him that the contracts were terminated as a result of a concern for
security. Saud Al Tawash also indicated that he had heard that the promised award of
Camp Virginia had been put on hold, with the possibility of cancellation, due to the
security concerns.

According to testimony offered by Mr. Wilson, on October 17 or 18, 2004, he
spoke with Mr. Cockerham, Tijani Saani, and Col. Hess about the Gulf Group
cancellations and prepared a report about those discussions. Mr. Wilson testified that
Mr. Cockerham told him that the cancellations were coming from above him at “the
general level.” Mr. Wilson also stated that Col. Hess told him that the cancellations had
to do with security and counterintelligence, and that the Army Support Group
commander made the decision to cancel. According to Mr. Wilson, Tijani Saani told him
that they were cancelling all of Gulf Group’s contracts for security reasons, but that
“we’ll try to get you guys some work.” Mr. Wilson also spoke to Col. Hess over the
telephone. Mr. Wilson stated Col. Hess did not want to talk to him, and was “really
nervous, talking in circles.” According to Mr. Wilson, Col. Hess stated during this
telephone call that Gulf Group’s contracts were terminated due to “counterintelligence
on the Al Tawash family, and they have ties [to] Al Qaeda and Saddam Hussein.” Mr.
Wilson also heard someone comment that Gulf Group was a “bunch of kids” and
needed to be “taken out,” although he could not remember if he heard this from an Army
officer or from one of Gulf Group’s competitors.

Col. Khalid Al Salal, a retired intelligence officer for the Kuwait Ministry of
Defense, who had left the ministry, but maintained communication with the security and
intelligence office, testified as a witness for plaintiff and stated that Gulf Group, Gulf
Telecom, and Saud Al Tawash were all cleared by Kuwaiti security and passed
background checks. Col. Al Salal further testified that the Al Tawash family is very well-
known in Kuwait, and that he had never heard of any links between the Al Tawash
family and the Taliban, Saddam Hussein, or other anti-American groups. Maj. Petty
similarly testified that he never heard that Gulf Group was suspected of having
connections with the Taliban. Mr. Cockerham testified that he heard a number of
rumors about Gulf Group’s involvement with the Taliban and other similar groups, which
he believed were not true.

Ferdinand Peters, the attorney retained by Gulf Group in October 2004, testified
that he met separately with Col. Hess, Col. Miller, Mr. Cockerham, and Tijani Saani, and
was given “a variety of reasons” by “everyone” for the termination of Gulf Group’s latrine
and dumpster contracts and camp package BPA call. Mr. Peters testified that “I can
only say that there were multiple reasons given.” Mr. Peters indicated that he was “told
about security problems, and words had come up in various discussions as connections
to terrorists, cell phone use, personnel of Gulf Group asking questions and being a

24
security threat, or whatever. Things like that.” Mr. Peters recalled that, in his meeting
with Col. Miller, Col. Miller had “mentioned” the latrine incident to Mr. Peters, and may
have indicated that Gulf Group was suspected of being allied with anti-American
interests. Mr. Peters could not “remember exactly what was stated,” but indicated that
“[i]t was so serious of what we were being told that efforts were being made by the
family to figure out through Congressional action and like that on what was going on
here.”

After speaking with Mr. Wilson and hearing rumors from his competitors, Saud Al
Tawash contacted Congressman Trent Franks, who was “an old family friend,” to
inquire on Gulf Group’s behalf about rumors of Al Tawash family links to anti-American
groups because “it was hurting our family reputation.” According to Saud Al Tawash,
Congressman Franks called Col. Miller, Col. Hess, Tijani Saani, and Mr. Cockerham to
“restore my family’s reputation” and to “chat with the right people from in the upper
channels at the military to find out if this is truth [sic].” In an October 27, 2004 email
addressed to Gen. Keith Alexander and Gen. Steven Whitcomb, Congressman Franks
stated: “I am respectfully asking the military command to issue a letter stating
categorically that the cancellation of the subject contracts was in no way related to any
counterintelligence, espionage, or security concern connected to the Al-Tawash family
or the Gulf Group.” Gen. Whitcomb forwarded the email to Col. Miller, Col. Richard
McEvoy, and Col. Louis Yuengert, requesting a status update. Col. McEvoy responded
that the letter had been taken care of by the Army. Col. Miller recalled receiving a
telephone call from Congressman Franks about the Al Tawash family, followed shortly
by a telephone call from Gen. Alexander on the same subject. Col. Hess testified that
he did “not remember being called by Congressman Franks.” On November 3, 2004,
Col. Hess was directed, he assumed by Col. Miller,35 to write a letter to Mohammed Al
35
Col. Hess’ testimony at trial was as follows:

Q: Looking at Exhibit 147, this being a letter from the Department of the
Army dated November 3, 2004 to Mohammed Al Tawash, with what
purports to be your signature. Is that indeed your signature?

A: Yes, it is.

Q: Did anyone order you to write this letter?

A: I don’t remember, but I wrote the letter so I presume I was directed to
write the letter.
…

Q: Do you recall receiving a direct order commanding you to write the
letter, or did someone simply ask if you might accommodate them by
writing the letter?

A: Instead of saying yes or no, can I explain my recollection of the letter?

25
Tawash about the cancellation of Gulf Group’s latrine contract, which, according to
Saud Al Tawash, was drafted in response to Congressman Franks’ inquiries. Saud Al
Tawash testified that he did not know why the letter from Col. Hess was addressed to
his brother, Mohammed Al Tawash. The letter stated, in pertinent part:

Please rest assured that the Gulf Group’s contract to service portable
latrines at Army camps in Kuwait was not terminated because of security
reasons. While it is true that some employees of the Gulf Group have
been either barred from the installation or warned because they had not
followed the rules for contract employees on the installation, these
incidents did not cause the termination of the contract.

The contracting officer terminated the contract because circumstances
arose that caused the contracting officer to conclude that it was in the best
interest of the Army to terminate the contract. Since the contract was
terminated for convenience of the government, the Gulf Group should not
suffer any repercussions to its reputation or competitive standing. The
Gulf Group is fully eligible to compete for other Army contracts in Kuwait.
I hope this clarifies this unfortunate misunderstanding.

Col. Hess further testified that “Colonel Miller actually wanted to author a letter to
send to the Al Tawash family and I recommended against that, that this was a
contractual issue and any such letter ought to be coming from the contracting office.”
According to Col. Hess, the security and espionage concerns about Gulf Group “turned
out to be unfounded,” but the statement in the letter that Gulf Group’s latrine contract
“was not terminated because of security reasons” was “false.” In other words, based on
Col. Hess’ testimony, Gulf Group was terminated for security reasons, but those same
security concerns later turned out to be unfounded. Also according to Col. Hess, the

Q: Please do. Yes, sir.

A: My recollection of the letter was we went through all the security stuff,
all the concerns about espionage in the previous few exhibits we went
through, and it turned out to be unfounded. This is my recollection. As
such, we still had a viable contractor that we could do business with. The
purpose of this letter was to put Gulf Group on notice that we still would
like to consider them to do Army contracting, to engage, to bid on Army
requirements in the future.

Q: Who directed you to send this letter?

A: I don’t recall specifics.

Q: It was Colonel Brick Miller, wasn’t it?

A: I’m going to have to make the assumption that it was the ASG, Colonel
Miller. He was my primary customer.

26
statement that some Gulf Group employees had been barred was, likewise, untrue and
inaccurate based on his recollections, but he had obtained that information to insert into
the letter from Col. Miller. Col. Hess indicated that he also had help from the ASG
Judge Advocate General’s office when composing the November 3, 2004 letter, but did
not identify by name any individuals who aided him.

Bottled Water Delays

Gulf Group’s bottled water BPA calls were not cancelled at the time of the
October 2004 terminations of the camp package BPA call, the latrine contract, and the
dumpster contract, and Gulf Group continued to supply bottled water to the Army under
the bottled water BPA in 2005. According to the parties’ joint stipulation of facts,
between November 1, 2004 and March 31, 2005, United States government contractors
supplying bottled water in Iraq were required to travel in military convoys. The convoy
requirement was issued to ensure the prompt delivery of bottled water and for the
protection of personnel and supplies. During this time period, all of Gulf Group’s
deliveries of bottled water to camps in Iraq were made by trucks traveling to and from
Iraq and Kuwait with military convoys. The trucks were delayed at times for a number of
reasons, including IEDs and observance of religious holidays by Iraqi nationals. The
parties have jointly stipulated that “[a]dditionally, the delays occasionally were caused
by the Government not having sufficient escorts.” According to Saud Al Tawash, most
Gulf Group trucks going into Iraq around April 2005 were delayed more than a week.

Saud Al Tawash testified that, pursuant to Gulf Group’s bottled water BPA, Gulf
Group was required to contact certain Army officials to obtain delivery instructions. The
bottled water BPA refers to these requirements as “Special Instructions,” which state in
part:

Purchased For: US Army Various Locations in Kuwait and Iraq. Surface
to some of the locations are unimproved which could cause delays in
deliveries. Contractor shall do everything possible to ensure deliveries are
made on time. The contractor is liable for all equipment and personnel
necessary to deliver to the proper quantities. The US Military is not liable
for damages caused to transportation assets or equipment necessary to
deliver the items.

Personnel to contact for directions and acess [sic] to various locations are
as follows:

MAJ Banks:36 968-4819
CPT Sharp:37 970-5952

36
According to the parties’ joint stipulation of facts, “Major Banks was the chief of the
bottled water branch until October 2004, when she was replaced by LTC Derrick
Shoemake,” who was the chief of the bottled water branch at Camp Arifjan during April
2005.

27
Saud Al Tawash further testified that the Army officers gave Gulf Group convoy
numbers, which he understood to be a requirement that Gulf Group travel in convoys.
According to Mr. Wilson, at a post-award vendor meeting attended by Lt. Col. Derrick L.
Shoemake, chief of the bottled water branch at Camp Arifjan, Mr. Cockerham, and Sgt.
Diane Brooks, all the bottled water contractors were told that they were required to
move in convoys. Also at the post-award vendor meeting, Mr. Wilson was told to follow
the instructions to travel with convoys given by Lt. Col. Shoemake and Sgt. Brooks. Mr.
Wilson stated that contractors could hire private protection, but that even then they
would have had to coordinate transportation with the Army. Mr. Wilson explained that
Gulf Group could not have transported the water without the military convoys because
there was significant fear over the physical safety of the water and potential biological
additives, such that “if you showed up at a front gate of an army base unescorted with
truck loads of water, you’re probably going to be shot.” Mr. Wilson also testified that
rules and regulations were posted on a wall at Camp Navistar, a convoy consolidation
point in Kuwait, specifying that trucks “must stay in convoy, they must be escorted all
times.”

Lt Col. Mary O’Connor, a battalion commander and chief of transportation
responsible for the movement of control teams at convoy support centers throughout
Iraq in 2004 and 2005, testified that all trucks in Iraq were required to move in military
convoys, and that she knew this to be the case because she was in charge of this
process. Lt. Col. O’Connor identified a specific “fragmentary order” (FRAGO) as the
document requiring all vehicles used in support of the military to travel in convoys. The
FRAGO provides:

The purpose of this FRAGO is to enhance and convoy [sic] security
measures to protect the force by providing convoy commanders and unit
commanders tools to ensure that all measures have been properly taken
to safeguard personnel and equipment. Unit/convoy commanders are
personally responsible for the conduct and protection of convoy
operations. MNF-I units will monitor their convoys, and exercises control
measures implemented by unit commanders.

3.C. (U) Tasks to Subordinate Unites. [sic]

3.C.1. MNC-I

3.C.1.A. Continue to produce internet status updates, and maintain the
information on the MNCI webpage. Convene emergency status board
update when the situation warrants.

3.D. (U) Coordinating Instructions.

37
Capt. Sharp was Maj. Banks’ deputy at the time the “Special Instructions” were
issued.

28
3.D.1. There will be two vehicles minimum during daylight hours, and
three vehicles minimum during the hours of darkness. There will be at
least two soldiers per vehicle and three in the trail vehicle to provide a
turret or rear gunner for tactical vehicle movements.

3.D.2. Non-tactical vehicle (NTV) movements used to transport
military members, DOD civilians, and DOD contractors are cautioned
not to move outside secure zones without security as set forth by
MSC38 commanders. As far as practical use armored/add on armored
commercial vehicles to move off FOBS. The use and number of NTVS to
support movement requirements is delegated to the MS[] commanders.
However, the number of NTVs used should consider current AIF TTPS,
emergency cross loading of personnel requirements and safety. NTVs will
posses [sic] communication IAW Para 5.A.2. below, and have
communication with the security escort.

3.D.3. Convoy commanders are responsible for the self-protection
capability within their convoy. There will be at least one rifle in each
vehicle for all movements. Tactical vehicle movements must have 360
degree security consisting of an M249 or above from the turret or out the
back with the “canvas” removed. All military personnel will carry personal
weapons, wear fragmentation protective vest, ballistic eye protection, and
combat helmet. A minimum of one vehicle will maintain communications
contact with coalition forces. Convoys will not have lights on during
daylight operations. During night operations white lights will be used, and
they will have NVDS in each vehicle.

3.D.4. Prior to all movements, convoy commanders will conduct
coordination and include communications equipment sufficient to
communicate with other MSCS when traveling through their AOR.
Advanced notification to other MSCS will minimize potential fratricide of
blue on blue forces. All vehicles must log out with parent unit and provide
ETA to destination. All vehicles must report at destination to their parent
unit.

3.D.5. Breakdown procedures, convoy commanders are responsible for
self-recovery capability within each convoy. Recovery equipment will be
available to each convoy. Commanders will take all reasonable measures
to recover vehicles and will abandon vehicles as last resort only. They will
recover the vehicle to the nearest CSO or LSA if possible. If not, leave
appropriate security personnel and an operational vehicle with it until it
can be recovered.

3.D.6. All MSCS will report deteriorating road conditions to MNCI, upon
reporting to convoy support center operations cell(s), convoy commanders
38
It appears that MSC stands for Major Subordinate Command.

29
will report locations where maintenance is required and where engineer
work could mitigate areas of vulnerability.

3.D.7. In the greater Baghdad area defined by the MND Baghdad area
there will cautinue [sic] to be mission critical movements only. Units will
verify route status with 1 CD website or Iraqna or prior to any movement.

3.D.8. There will be a minimum ratio of one tactical security vehicle for
every ten military cargo vehicles, and a minimum ratio or [sic] one tactical
security vehicle for every 5 KBR cargo vehicles. There will be no less
than two security vehicles for every convoy (Para. 3.D.1.).
...

4.B. (U) All units will conduct risk assessments using mission, enemy,
terrain, troops, time available, and civilian demonstrations (METT-TC) to
identify and assess hazards. Ensure that seatbelts are properly used.
Gunners in turrets and rear facing security will ensure other safety
measures are used due to the inability to wear seat belts. All soldiers
operating or riding in tactical and NTV vehicles must wear regulation gear
as stated in paragraph 3.D.3. above.

The FRAGO does not specifically refer to government contractors. Lt. Col.
O’Connor testified, albeit inconsistently, that it was understood that, if a contractor was
supporting the military, it was “assumed in the order that they would – that we would
protect them.” Nevertheless, Lt. Col. O’Connor testified that the language “DOD
contractors are cautioned not to move outside secure zones without security as set forth
by MSC commanders. As far as practical use armored/add on armored commercial
vehicles to move off FOBS,” was a recommendation, rather than an order, until a more
stringent order was delivered. Lt. Col. O’Connor also testified that she had not seen a
more stringent order. She then stated that the existing order was intended to require
civilian contractors to travel in military convoys. Lt. Col. O’Connor also testified that
there were no exceptions to this convoy requirement, however, she conceded that some
contractors violated the convoy requirement. She also acknowledged that the Army
could not control the travel of all civilians. Although her testimony regarding the number
of days of travel time between Kuwait and Iraq was inconsistent, she did indicate,
however, perfect travel conditions were rare in Iraq at the time.

Regarding the cause of the bottled water transportation delays, Saud Al Tawash
stated that, having been to the border between Kuwait and Iraq, he had personal
knowledge of Gulf Group trucks delayed at the border due to insufficient escorts, which
was “the only cause” of delay. He stated, however, that he did not travel with the Gulf
Group trucks beyond the border to deliver the water into Iraq. According to Saud Al
Tawash, it was Lt. Col. Shoemake and KBR, another contractor, through whom Saud Al
Tawash learned that the truck delays in Iraq were caused by lack of escorts. Mr. Wilson
stated that he had learned from the truck drivers that the delays in the delivery of bottled
water were caused by “security and the lack of escorts,” as well as convoy priorities. He

30
further indicated the delays were also caused by IEDs and accidents. Mr. Wilson also
testified that Gulf Group trucks were being delayed at the bases because they also were
being used to store water and to haul military equipment on their return trips, despite
Gulf Group’s contract and arrangement with the trucking company that there only would
be one-way hauls. Neither Saud Al Tawash nor Mr. Wilson, personally, were on board
the trucks that delivered bottled water for Gulf Group into Iraq.

Megbel Al Tawash testified that he knew from project managers and from
coordinating with Expeditors, the company Gulf Group had hired to transport the bottled
water, that the lack of escorts “was the main problem” Gulf Group experienced with the
delivery of bottled water to Iraq. Megbel Al Tawash further stated that he personally
observed Gulf Group trucks used by the military to haul equipment, specifically
Humvees, on return trips from Iraq. Lt. Col. O’Connor agreed that it was “quite
possible” that bottled water trucks coming back from Iraq into Kuwait were loaded with
military equipment. Mr. Cockerham testified that “quite often what they would do is put
equipment on the trucks that were designated just for carrying water,” and that he
believed Gulf Group’s bottled water trucks were being used to haul military equipment
on the return trips. Mr. Cockerham stated that there was no agreement between the
bottled water contractors and the government to use the bottled water trucks for hauling
military equipment on return trips. The parties also have stipulated that, “[t]here was no
agreement between Gulf Group and the Government to use some or all of Gulf Group’s
trucks that delivered bottled water to camps in Iraq, to transport military equipment back
to Kuwait on their return trips from Iraq.” The Army had another contract in place to
take equipment out of Iraq, but it apparently was not always used.

Due to the acknowledged delays in the delivery of bottled water, the government
offered to increase the amount it was paying to the bottled water contractors to cover
demurrage charges. Between November 1, 2004 and March 31, 2005, Gulf Group
charged 2.400 KD per case for bottled water. The parties stipulated, “[o]n April 5, 2005,
a contracting officer, John Cockerham, submitted a proposal to all contractors supplying
bottled water to camps in Iraq to increase the price of the bottled water to 2.578 KD per
case, in exchange for the contractors not charging the Government for additional
expenses including demurrage incurred in the deliveries.” Mr. Cockerham’s email
stated: “All previous claims prior to APR 05 will continue to be processed.” According to
the parties’ joint stipulation of facts, Gulf Group received, and accepted, the proposal of
the higher rate per case in exchange for not making any more claims for demurrage
incurred after April 1, 2005.

Plaintiff’s Submissions and Claims

On December 15, 2005, Gulf Group submitted a claim under the bottled water
BPA for 298,435.000 KD in demurrage for delays incurred between November 2004
and March 2005 to Mr. Cockerham, who was the contract specialist for the bottled water
BPA in Kuwait.39 The following day, December 16, 2005, Gulf Group submitted three
39
The KD value later was calculated to be equivalent to $1,035,802.23 in plaintiff’s
original complaint in the bottled water case, Case No. 07-82C, and $1,065,711.39 in its

31
“Claim & Settlement Offers”40 to Mr. Cockerham, proposing settlement in the amount of
$4,544,339.84 for the termination of the camp package BPA call, in the amount of
$4,558,428.60 for the termination of the latrine contract, and in the amount of
$999,994.67 for the termination of the dumpster contract.41 The 2005 Claim and
Settlement Offers also asserted that Gulf Group was entitled to $10,000,000.00 for the
termination of the camp package BPA call, $5,058,428.5942 for the termination of the
latrine contract, and $1,110,621.72 for the termination of the dumpster contract. Saud
Al Tawash signed the cover letter to Gulf Group’s four submissions to Mr. Cockerham in
2005, and all four submissions were certified by plaintiff’s attorney at the time,
Ferdinand Peters.

On October 19, 2006, the Camp Arifjan contracting office files were searched,
but there was no record of Gulf Group’s December 15 and 16, 2005 submissions. Gulf
Group then re-submitted the same Claim and Settlement Offers between October 20,
2006 and October 22, 2006, and the submissions were put on the contracting command
log. Mr. Cockerham testified that he had received the 2005 latrine and dumpster Claim
and Settlement Offers twice, and that he does not know if Gulf Group’s initial
submissions were logged, although they would have been placed in a box in the
contracting office. Although not clearly referring to plaintiff’s 2006 resubmissions, Mr.
Cockerham also testified that he made minimal efforts to ensure that Gulf Group’s Claim

second amended complaint in the bottled water case. In plaintiff’s first amended
complaint in the bottled water case, plaintiff simply listed the amount as 298,435.000 KD
without a USD equivalent.
40
As indicated below, it is not immediately clear that the 2005 submissions relating to
the terminations of the camp package BPA call, the latrine contract, and the dumpster
contract, constituted “claims” under the Contract Disputes Act. Defendant’s post-trial
briefs generically refer to plaintiff’s 2005 submissions as “claims,” but defendant initially
argued that the Claim and Settlement Offers did not constitute claims under the
Contract Disputes Act. In discussing plaintiff’s submissions with respect to the court’s
jurisdiction under the Contract Disputes Act, therefore, the court distinguishes between
the “Claim and Settlement Offers” that plaintiff submitted in 2005, and the “claims” that
plaintiff submitted in 2007 and 2011. The court includes the 2005 Claim and Settlement
Offers in general references to “claims” elsewhere in this opinion, however, because the
2005 submissions constitute claims in other contexts, such as under the False Claims
Act. See 48 C.F.R. § 49.001 (2005) (“A settlement proposal is included within the
generic meaning of the word ‘claim’ under false claims acts (see 18 U.S.C. 287 and 31
U.S.C. 3729).”).
41
The parties’ joint stipulation of facts lists plaintiff’s 2005 Claim and Settlement Offer as
seeking $5,058,428.59. That is the full amount that plaintiff claimed it was owed, but
plaintiff’s submission offered to settle for $4,558,428.60.
42
In calculating plaintiff’s claimed entitlement to $5,058,428.59, plaintiff’s 2005 Claim
and Settlement Offer appears to have used a different conversion rate between KD and
USD than the rate stipulated to by the parties.

32
and Settlement Offers were processed, indicating that the “[o]nly thing I really remember
doing was just notifying the chief that this was the second time....”

The record is unclear as to whether the government ever reviewed plaintiff’s
2005 Claim and Settlement Offers. Mr. Cockerham, however, confirmed at trial that he
wrote the notations on the Claim and Settlement Offers that appear in the record
relating to the camp package BPA call, the latrine contract, and the dumpster contract,
indicating that the Claim and Settlement Offers in the record are the Claim and
Settlement Offers that Mr. Cockerham received on December 16, 2005, rather than the
copies of the Claim and Settlement Offers that plaintiff re-submitted between October
20, 2006 and October 22, 2006. Although raising more questions than it addressed, Mr.
Libbey’s contracting officer’s final decision for plaintiff’s 2007 camp package BPA claim
attempted to explain what had happened to the 2005 Claim and Settlement Offers,
stating:

The settlement offer [for the camp package BPA] was one of three
termination packages Major Cockerham allegedly received from Mr.
Surresh Pulikkal [sic] of Gulf Group43 in October 2005. Major Cockerham
allegedly signed for the three settlement proposals, and handed them off
to the Claims Section in the contracting office. These matters are
“alleged” as the Government has no evidence to establish these events
actually occurred. Major Cockerham and Gloria Davis, the awarding
contracting officer, came under investigation for improper and illegal
contracting activity after the subject contract was awarded....

Gulf Group representatives returned to the Contracting Command in late
November 2005 and again in December 2005 to check on the status of
the settlement offer. No record could be found that it had been submitted,
so Mr. Surresh Pulikkal [sic] was asked to resubmit the settlement offer.
Mr. Pulikkal subsequently gave a settlement offer to Major Cockerham,
who signed for it acknowledging receipt....

Gulf Group Representatives Saud Al Tawash and Allen Tadayon met with
LTC David Pershing, Commander, United States Army Contracting
Command, Southwest Asia-Kuwait (USACC), Major Marcellus Newson,
Contracting Officer, and Captain Andrew Gast, Contracting Claims Officer,
both of USACC, on or about 19 October 2006 to discuss the following
topics.... Concern over an earlier termination for convenience.... Their
settlement offers....

43
Although defendant has repeatedly described Suresh Pulikkal as a Gulf Group
employee, Saud Al Tawash testified that Suresh Pulikkal was a legal consultant for a
number of the companies that Saud Al Tawash managed, describing him as “our legal
counsel…a legal consultant.” Mr. Cockerham also confirmed that Suresh Pulikkal
“worked with several companies.”

33
Mr. Tadayon asked about the settlement offer Gulf Group had submitted,
inquiring about its status. Captain Gast was directed by LTC Pershing
during the meeting to check his files for its status. Captain Gast checked
his file log for disputes and reported there was no record of any settlement
offers being filed by Gulf Group....

Captain Gast checked with other members of the Claims Team on 20
October 2006, specifically asking Major Paul Bidinger, Contracting Claims
Officer, Third Army, U.S. ARCENT, about the Gulf Group’s inquiry. Major
Bidinger reported back to Captain Gast the same day that he could not
find Gulf Group’s name on the disputes lists....

On 22 October 2006, Gulf Group representative Allen Tadayon provided
Captain Gast with a copy of the settlement offer by email. Captain Gast
reviewed the documents briefly and noted they were missing the required
certification....

On 22 October 2006, Mr. Tadayon emailed three “certifications” signed by
Gulf Group’s counsel to Captain Ghast [sic].

On 15 November 2006, Mr. Tadayon requested an appointment with
Captain Gast to discuss the settlement offer. Captain Gast responded on
16 November 2006 that the only appointments he was making was for
current disputes and ratifications he was working on....

Mr. Tadayon communicated again with Captain Gast on or about 17
November 2006 concerning the status of the three settlement offers.
Captain Gast stated he had not yet begun to work on them. This was the
last communication Captain Gast had with Gulf Group concerning its
documents.

It appears from Mr. Libbey’s summary of the events surrounding the submission
of plaintiff’s 2005 Claim and Settlement Offers, and from Mr. Cockerham’s testimony
regarding his receipt of plaintiff’s Claim and Settlement Offers, that plaintiff may also
have originally submitted the Claim and Settlement Offers to Mr. Cockerham in October
2005, prior to the December 16, 2005 submissions in the record. That plaintiff
previously submitted the camp package BPA, latrine contract, and dumpster contract
Claim and Settlement Offers is consistent with the October 2005 date that appears on
the cover letters to each submission.

Plaintiff interpreted the lack of a response to its 2005 submissions for almost a
year to be a deemed denial of its “claims” pursuant to 41 U.S.C. §§ 605(c)(1), (c)(3)
(2005) (current versions at 41 U.S.C. § 7103(f)(1), (f)(3) (Supp. V 2011)).44 Based on
44
In Case No. 06-835C, the camp package BPA case, plaintiff asserts that the sixty
days under 41 U.S.C. § 605 began to run on October 10, 2005. In Case No. 06-853C,
the dumpster case, plaintiff asserts that the sixty days began to run on October 20,

34
this perceived denial of its “claims,” Gulf Group ultimately filed the four suits which are
currently consolidated before this court. The parties stipulated that, “[o]n December 8,
2006, Gulf Group commenced [the camp package BPA case in the United States Court
of Federal Claims] seeking $7,000,000.00, plus interest, costs, and attorney fees arising
from the contracting officer’s deemed denial of its claim” for the cancellation of the camp
package BPA call. The parties also stipulated that, “[o]n December 15, 2006, Gulf
Group commenced [the latrine case in the United States Court of Federal Claims]
seeking $6,000,000, plus interest, costs, and attorney fees arising from the termination”
of the latrine contract. The parties further stipulated that, “[o]n December 19, 2006, Gulf
Group commenced [the dumpster case in the United States Court of Federal Claims]
seeking $1,800,000, plus interest, costs, and attorney fees arising from the cancellation”
of the dumpster contract. Finally, the parties stipulated that, “[o]n February 1, 2007,
Gulf Group commenced [the bottled water case in the United States Court of Federal
Claims] seeking $1,035,802.23, plus interest, costs, and attorney fees arising from calls
issued pursuant to” the bottled water BPA.

In the camp package BPA case, the latrine case, the dumpster case, and the
bottled water BPA case, defendant requested that the judges initially assigned to each
case stay the proceedings in each case because defendant believed, with respect to
each Claim and Settlement Offer, “that plaintiff’s submission constitute[d] a ‘termination
settlement offer,’” rather than a “claim” under the Contract Disputes Act, which,
according to defendant, deprived this court of jurisdiction over plaintiff’s complaints.
The judges initially assigned to the camp package BPA case, the latrine case, and the
dumpster case, each agreed to stay the cases pending a decision by the contracting
officer on each of plaintiff’s “claims.”45 On March 26, 2007, Gulf Group presented
“revised” claims to the contracting officer, certified by plaintiff’s replacement attorney,
and current attorney of record, Ms. Iliaura Hands, for $7,000,000.00, $1,800,000.00,
and $6,000,000.00, arising from the camp package BPA, the latrine contract, and the
dumpster contract, respectively.46 In addition, Ms. Hands signed the cover letter to all of

2005. In Case No. 06-858C, the latrine case, plaintiff references two dates, October 17,
2005 and December 16, 2005, from which the sixty days could have run. In Case No.
07-82C, the bottled water BPA case, plaintiff asserts that the agency’s sixty days began
to run on December 15, 2005.
45
The undersigned judge denied defendant’s request to stay the bottled water BPA
case. The bottled water BPA case did not involve a termination for convenience. With
respect to the 2005 bottled water BPA Claim and Settlement Offer, the language that
plaintiff used in requesting a decision, and the context in which plaintiff’s submission
was made, indicated that plaintiff had asserted a “claim” under the Contract Disputes
Act. The undersigned judge, however, subsequently stayed all four of the consolidated
cases at the request of the United States Department of Justice because of related
ongoing criminal investigations and prosecutions.
46
In its pleadings to the court, plaintiff submitted a different version of the revised claim
for the dumpster contract than the version of the revised claim that was admitted at trial.
Although the differences between the versions are minimal, this discrepancy is one of

35
the revised claims. Each revised claim included a copy of the relevant 2005 Claim and
Settlement Offer, which contained a cover letter that was signed by Saud Al Tawash,
and which was certified by plaintiff’s previous attorney, Ferdinand Peters.

On May 21, 2007, Joseph Libbey reviewed Gulf Group’s revised claims and
issued final decisions on the revised camp package BPA, latrine contract, and dumpster
contract claims. Mr. Libbey awarded Gulf Group $33,053.57, $149,285.71, and
$57,833.00, plus interest, for its camp package BPA, latrine contract, and dumpster
contract claims, respectively. The parties stipulated that “Mr. Libbey did not interview
anyone in preparation of the final decisions.” Randall Kemplin, a civilian attorney for the
Army, wrote portions of the final decision from information he received from Army
attorney Clea Efthimiadis, who, in turn, obtained information on the terminations of Gulf
Group’s contracts from Col. Brick Miller, Tijani Saani, and Mr. Cockerham.47

After Mr. Libbey issued his contracting officer’s final decisions, Gulf Group filed
amended complaints before this court in each of the three cases he addressed, the
camp package BPA and the latrine and dumpster contracts. The original complaint in
the bottled water BPA case was also subsequently amended. In its amended
complaints, plaintiff altered the amounts sought in each case, except the bottled water
BPA case, the only case on which Mr. Libbey did not issue a contracting officer’s final
decision. In its original complaint in Case No. 06-835C, the camp package BPA case,
plaintiff sought $7,000,000.00. In its first amended complaint in the camp package BPA
case, plaintiff sought $2,682,160.86.48 In its second amended complaint in the camp
package BPA case, plaintiff sought $3,463,287.57.49 Subsequently, in its third

numerous deficiencies in plaintiff’s submissions to the court. Additionally, as discussed
below with respect to the dumpster contract, the copy of Saud Al Tawash’s signature
page from the 2005 Claim and Settlement Offer is dated October 20, 2004.
47
Ms. Efthimiadis testified that she did not contact Col. Hess regarding plaintiff’s claims.
When questioned, Ms. Efthimiadis stated:

I was in the middle of starting the litigation report, I did not complete the
litigation report. I did not interview all the witnesses or take even written
statements from them as is required in [sic] litigation report. The uptempo
in Kuwait was tremendous, the workload was tremendous at that time.
48
Plaintiff sought $1,447,457.22 in lost profits, $1,234,703.64 in preparatory expenses,
legal fees, costs incurred in preparing a settlement of plaintiff’s claims, and interest.
49
Plaintiff sought $3,387,247.64 in lost profits, $69,002.43 in preparatory expenses,
$7,037.50 in fees and costs incurred in preparing the settlement for plaintiff’s claims,
prejudgment interest, cost of litigation, and attorneys’ fees.

36
amended complaint in the camp package BPA case, plaintiff now seeks $922,851.84.50
In 2011, plaintiff submitted a second revised claim for the camp package BPA to Maj.
Daniel Everett,51 which mirrored the amounts plaintiff claimed in its third amended
complaint. In its original complaint in Case No. 06-858C, the latrine case, plaintiff
sought $6,000,000.00. In its first amended complaint in the latrine case, plaintiff sought
1,572,967.611 KD.52 In its second amended complaint in the latrine case, plaintiff now
seeks $2,830,662.20.53 In its original complaint in Case No. 06-853C, the dumpster
case, plaintiff sought $1,800,000.00. In its first amended complaint in the dumpster
case, plaintiff sought $1,946,721.78.54 In its second amended complaint in the
dumpster case, plaintiff now seeks $780,031.63.55 In its original complaint in Case No.
07-82C, the bottled water BPA case, plaintiff sought 298,435.000 KD, calculated as
$1,035,802.23. In its first amended complaint in the bottled water BPA case, plaintiff
sought 298,435.000 KD. In its second amended complaint in the bottled water BPA
case, plaintiff now seeks 298,435.000 KD, calculated as $1,065,711.39, for demurrage
and related expenses.56

The total potential contract prices and the amounts claimed by Gulf Group can be
summarized as follows:
50
Plaintiff seeks $846,811.91 in lost profits, $69,002.43 in preparatory expenses,
$7,037.50 in fees and other costs, prejudgment interest, costs of litigation and attorneys’
fees.
51
Contrary to plaintiff’s assertion that the judge directed plaintiff to submit a revised
claim to Maj. Everett, a member of the Army JAG Corps assisting defendant, the court
directed plaintiff to file revisions to any of the complaints filed in the four above-
captioned cases, if appropriate.
52
Plaintiff sought 1,416,360.000 KD in lost profits, 156,607.611 KD in preparatory
expenses, legal fees, costs incurred in preparing a settlement of plaintiff’s claims, and
interest. Plaintiff did not convert the amount to USD.
53
Plaintiff seeks $2,724,795.96 in lost profits, $91,978.74 in preparatory expenses,
$13,887.50 in fees and other costs, plus prejudgment interest, costs of litigation and
attorneys’ fees.
54
Plaintiff sought $1,457,619.72 in lost profits, $489,102.06 in preparatory expenses,
legal fees, costs incurred in preparing the settlement of the claims, and interest.
55
Plaintiff asserts in its second amended complaint in the dumpster case that it seeks
$780,131.63, but the total of the various amounts listed by plaintiff is only $780,031.63.
Plaintiff seeks $483,322.42 in lost profits, $282,871.71 for preparatory expenses,
$13,837.50 for fees and other costs, prejudgment interest, costs of litigation and
attorneys’ fees.
56
It appears that plaintiff’s original complaint used a different currency conversion rate
than the currency conversion rate stipulated to by the parties.

37
BPA/Contract Maximum 2005 Claim & 2007 Claim 2011 Claim Original Additional
Potential Price Settlement Offer Complaint Complaints

Camp BPA Limit: Claimed $7,000,000.00 $922,851.84 $7,000,000.00 1st Amended:
Package $10,000,000.00 Entitlement: $2,682,160.86
$10,000,000.0057
Call Limit: 2d Amended:
$7,000,000.00 Settlement Offer: $3,463,287.57
$4,544,339.84
Call 0001 3d Amended:
Price: $922,851.84
$1,447,457.22

Latrine Total: Claimed $6,000,000.00 N/A $6,000,000.00 1st Amended:
$5,057,895.14 Entitlement: 1,572,967.611
$5,058,428.59 KD
Base Period:
$613,142.86 Settlement Offer: 2d Amended:
$4,558,428.60 $2,830,662.20

Dumpster Total: Claimed $1,800,000.00 N/A $1,800,000.00 1st Amended:
$1,457,619.72 Entitlement: $1,946,721.78
$1,110,621.7258
Base Period: 2d Amended:
$346,998.00 Settlement Offer: $780,031.63
$999,994.67

Bottled Water BPA Limit: 298,435 KD N/A N/A 298,435 KD 1st Amended:
$10,000,000.00 calculated at 298,435 KD
$1,035,802.23
Call Limit: 2d Amended:
$7,000,000.00 298,435 KD
calculated at
$1,065,711.39

57
Mr. Peters testified that he did not remember if the 2005 Claim and Settlement Offer
for the camp package BPA claimed entitlement to $10,000,000.00, but later testified that
the 2005 Claim and Settlement Offer did not claim entitlement to $10,000,000.00,
guessing it claimed entitlement to $5,000,000.00. The only number that is referenced in
the Claim and Settlement Offer other than the amount of plaintiff’s settlement proposal
is the $10,000,000.00 figure. In this column, the court refers to the “claimed” amount as
the amount to which plaintiff stated it was entitled in the claim, other than the settlement
offer.
58
According to Mr. Peters, only the option periods were added to the dumpster contract
Claim and Settlement Offer, without the base period. The dumpster contract Claim and
Settlement Offer, however, asserted entitlement to the total contract price. Including the
base period, the amount to which plaintiff appeared to assert it was entitled was
$1,457,619.72.

38
The 2005 Claim and Settlement Offers for the camp package BPA and latrine
and dumpster contracts included settlement offers lower than the total amount to which
Gulf Group believed it was entitled, which, notwithstanding an apparent omission of the
base period price in the dumpster Claim and Settlement Offer, the Claim and Settlement
Offers included the price of the base period and all option periods for the latrine and
dumpster contracts. Gulf Group’s camp package BPA, latrine, and dumpster Claim and
Settlement Offers described the total potential awards as “contract costs...added to the
anticipated contract profit.”59 Saud Al Tawash indicated that he believed Gulf Group
would have performed the option periods on the latrine contract because Camp Arifjan
was permanent and there would be a need beyond the base period for Gulf Group’s
services. Saud Al Tawash further testified that Maj. Davis informed Gulf Group that, if
they performed well on the latrine contract, they would be completing the full potential
period of the contract, including all of the option periods. Saud Al Tawash also
explained that he expected to perform the option periods of the latrine contract because
the capital expenditures necessary to acquire the materials and equipment needed to
perform the contract would not have been covered by the base period alone.60
According to Saud Al Tawash, he also understood the period of performance on the
dumpster contract to be for three years because Maj. Davis told him Camp Arifjan was a
permanent camp and that, if Gulf Group performed well, then they would have the
contract for the full three-year term, inclusive of the base period and all of the option
periods. When asked whether Gulf Group understood it was not guaranteed the option
periods, Saud Al Tawash explained on cross examination:

A: No, we didn’t understand if we were guaranteed -- to be given
guaranteed or not guaranteed? We did not understand that.

Q

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1034155. Public record. Not legal advice.