# Kandahar Mahali Transit & Forwarding LTD.

> Armed Services Board of Contract Appeals · February 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10477236

## Case

- **Court:** Armed Services Board of Contract Appeals
- **Decided:** February 13, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** O'Connell
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
Kandahar Mahali Transit & Forwarding ) ASBCA No. 62319
LTD. )
)
Under Contract No. W91B4N-11-D-7009 )

APPEARANCE FOR THE APPELLANT: Wojciech Z. Kornacki, Esq.
Watson & Associates, LLC
Denver, CO

APPEARANCES FOR THE GOVERNMENT: Dana J. Chase, Esq.
Army Chief Trial Attorney
Robert B. Neill, Esq.
James D. Stephens, Esq.
MAJ Jill B. Wiley, JA
CPT Blaine L. Hutchison, JA
Trial Attorneys

OPINION BY ADMINISTRATIVE JUDGE O’CONNELL
ON RESPONDENT’S MOTIONS FOR SUMMARY JUDGMENT

This appeal involves a claim for approximately 900 cargo transports in
Afghanistan. The government previously filed a motion to dismiss for failure to state
a claim that the Board denied. Kandahar Mahali Transit & Forwarding Ltd., ASBCA
No. 62319, 20-1 BCA ¶ 37,635 (KMT I). Undeterred, the government has filed a
series of motions: a motion for partial summary judgment and to dismiss in part for
lack of jurisdiction, a motion for summary judgment on its release defense, a motion
for summary judgment on appellant’s duress argument, and a supplemental brief
contending appellant failed to state a sum certain in its claim. The Board grants the
motion to dismiss in part for lack of jurisdiction and for summary judgment based on a
release.

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

The following facts are undisputed or uncontroverted.

1. A contracting officer (CO) awarded appellant, Kandahar Mahali Transit &
Forwarding Ltd. (KMT) the above-captioned contract on August 11, 2011. The
contract was one of 21 contracts awarded under the National Afghan Trucking (NAT)
multiple award task order contract (gov’t statement of undisputed material facts on its
motion for summary judgment on the affirmative defense of release (GSUMF-R ¶ 3:
R4, tab 1 at 5). The contract included a 12-month base period, along with a 12-month
and a 3-month option, both of which were exercised. The base period began on
September 16, 2011, and, ultimately, performance was extended to June 15, 2014.
(GSUMF-R ¶¶ 4-5; R4, tab 2 at 11-13, 15; tab 47 at 3 1)

2. The contract provided for the transportation of dry and heavy cargo in
Afghanistan by truck. KMT was paid specified rates for each “mission unit” of travel,
which was 50 kilometers. The payments were calculated in the Afghan currency
(AFN). The parties refer to each discrete trucking mission as a “Transportation
Movement Request” (TMR). (R4, tab 1 at 3, 8-11; tab 36 at 18).

3. The contract provided that the work would be ordered through task orders
issued by the CO (R4, tab 1 at 20). During performance the CO issued task orders
numbered 0001-0006 (R4, tabs 3, 9-10, 24, 41, 47).

4. The government used a document referred to as a “mission sheet” to provide
KMT with pertinent mission information, including the required pickup and delivery
dates and locations. Because KMT “could [] be financially responsible” if cargo
delivery could not be confirmed, the contract “encouraged” KMT to have the receiving
official sign upon acceptance. Accordingly, the mission sheet provided areas for both
the shipper and receiver to sign. KMT could then use the completed document in
support of payment. KMT could also submit a signed memorandum or sworn
statement from the customer, which it bore the responsibility to obtain. (R4, tab 36
at 29, 41; see, e.g., R4, tab 84 at 12).

5. The billing process for the work can be summarized as follows. KMT
would submit a monthly draft invoice on a form specified in the contract. The
contracting officer’s representative (COR) would then review the invoice and provide
comments or feedback. The parties would then work through the issues and attempt to
agree on whether completed missions would be classified as full payment, partial
payment, no payment, or pending missions which required additional investigation.
At the end of this process, KMT would upload the invoice into the government’s Wide
Area Work Flow (WAWF) system. KMT’s WAWF submission included a
spreadsheet that identified not only the TMRs for which the government had agreed to
pay, but also those for which it was refusing to pay. Invoice guidance provided by the
government stated that missions for which the COR and KMT disagreed could be
submitted to the CO as a dispute. (R4, tab 2 at 10; tab 36 at 22, 29, 44-45; tab 582;
Second Qadir affidavit at ¶¶ 4-5; Van Collie affidavit at ¶ 4, ex. G-13 at 84).

1
Citations are to the .pdf page number in the electronic Rule 4 file.
2
2014 CO Final Decisions on Unpaid TMRs

6. Two COs issued final decisions in 2014 concerning more than 300 disputed
TMRs (ex. G-1). Each letter in exhibit G-1 states that it is a final decision and
informed KMT of its right to appeal to the Board or file a direct action in the Court of
Federal Claims. While the COs agreed to pay many of the disputed TMRs (e.g., id.
at 4 (finding entitlement to AFN 4,624,435)), they denied payment on others. The
COs cited a variety of reasons, including that the paperwork was missing signatures,
that the TMR had been altered, or that KMT had failed to provide the original TMR
(id. at 2 (ABK0697), 48 (ACD6211, ACE5523)). As is relevant here, the government
contends that those decisions included 38 TMRs for which the CO denied payment
and that KMT did not appeal until it filed the present appeal more than five years later.

7. For six of the 38 TMRs, the COs denied payment not because there was any
substantive problem with the documents demonstrating that KMT had performed the
work, but rather because they alleged that KMT had never submitted an invoice. They
stated that KMT needed to submit an invoice before it submitted a claim. (Ex. G-1
at 11 (ABL3183) and 18-19 (ABL0133, ABL0993, ABL0996, ABL0997, ABL0998)).

8. The TMRs for which the CO cited a substantive problem such as a missing
signature are: ABK0698, ABK1043, ABK0694, ABK0697, ACC5762, ACD5574,
ACC4632, ACD6870,ACD6874, ACD6867, ACD6869, ACD6871, ACD6861,
ACE5523, ACD6211, ACD6209, ACD6210, ACE0650, ACE0651, ACE0655,
ACE0647, ACE0649, ACG1399, ACE0374, ACE0375, ACE0377, ACG5083,
ACJ1751, ACJ0681, ACJ1054, ACE6489, ACB4429 (GSUMF ¶ 46; ex. G-1).

The 2018 Demurrage Claim

9. On February 12, 2018, or about 44 months after the contract term ended,
KMT submitted a certified claim for demurrage (an agreed on penalty charge by the
vendor for delays beyond the scheduled time to load or unload shipments) on Task
Orders 0001, 0003, 0004, 0005 and 0006 in the amount of AFN 85,856,325.00 (R4,
tabs 78, 7980).

10. CO Celeste Hobert issued a final decision on May 8, 2018. She found that
KMT was entitled to a demurrage payment on 916 of the 1,337 TMRs included in the
claim. She calculated the amount due as AFN 57,209,855.00 or $808,000. (R4, tab 79
at 1-3).

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11. On June 28, 2018, the parties entered into a settlement agreement in which
KMT agreed to accept the $808,000 calculated by CO Hobert in the final decision.
Paragraph 3 of the settlement agreement contained the following language:

This Settlement Agreement constitutes a full release and
accord and satisfaction by KMT of any and all claims,
demands, or causes of action, actual or perceived, known
or unknown, arising under or related to this contract which
formed the basis for this Settlement Agreement.
Therefore, KMT remises, releases, and discharges the
Government, its officers, agents, and employees of and
from all civil liabilities, obligations, claims, appeals and
demands which it now has or hereafter may have, whether
known or unknown, administrative or judicial, legal or
equitable, including attorney’s fees, arising under or in any
way related to the disputes which formed the basis of this
Settlement Agreement.

(R4, tab 80 at 2-3)

12. The parties effectuated the settlement through the issuance of a new task
order (Task Order 0007) signed by both parties. KMT’s president, Abdul Qadir,
signed for KMT; his signature is dated September 9, 2018. (R4, tab 81).

13. In Task Order 0007, the parties modified the release language in paragraph
3 of the settlement agreement somewhat, referring to appellant as “the contractor”
rather than “KMT” and by starting a new paragraph after the first sentence and
deleting the word “Therefore.” Accordingly, the Task Order reads as follows:

3. This settlement agreement constitutes a full release and
accord and satisfaction by the Contractor of any and all
claims, demands, or causes of action, actual or perceived,
known or unknown, arising under or related to this contract
which formed the basis for this settlement agreement.

4. The contractor remises, releases, and discharges the
Government, its officers, agents, and employees of and
from all civil liabilities, obligations, claims, appeals and
demands which it now has or hereafter may have, whether
known or unknown, administrative or judicial, legal or
equitable, including attorney’s fees, arising under or in any

4
way related to the disputes which formed the basis of this
settlement agreement.

(R4, tab 81 at 2)

14. KMT has raised a duress defense based on an affidavit from its president,
Mr. Qadir, attached to the amended complaint (First Qadir Affidavit). Mr. Qadir
testified as follows:

8. The contracting officer emailed KMT several times to
sign the documents by September 19, 2018 or KMT would
have to wait for funding for the next fiscal year.

9. Because KMT did not know how long this would take,
KMT felt rushed to sign the documents. KMT was
concerned that if it did not sign the documents before the
end of the fiscal year, it would have to wait for many
months to get paid.

10. The contracting officer kept telling KMT to sign the
documents in many emails between June 2018 and October
2018. KMT felt it had no other option than to sign the
documents and return them to the contracting officer.

15. The emails cited by Mr. Qadir in this affidavit reveal the following
sequence of events:

May 14, 2018 KMT informs CO Hobert that it would
accept the amount in her final decision.

May 23, 2018 CO Hobert sent KMT the settlement
agreement and asked Mr. Qadir to sign and
return to her.

June 13, 2018 The CO asked KMT about the status of
signing the settlement agreement.

June 27, 2018 The CO asked KMT about the status of
signing the settlement agreement.

June 28, 2018 KMT returned the signed settlement
agreement to the CO. The CO notified KMT
the same day that she would request funding.

5
August 29, 2018 The CO asked Mr. Qadir to review and sign
the task order attached to her email and to
submit an invoice using the exact words she
had provided under the heading “Supplies or
Services and Prices.” She warned that
inaccuracies would delay payment.

August 30, 2018 The CO informed KMT that if it wished to
be paid by the end of the fiscal year KMT
needed to sign and return the documents by
September 10, 2018.

Sept. 7, 2018 The CO reminded KMT it needed to return
the documents by September 10 for it to be
paid by September 15, 2018 (although, as
noted above, KMT purportedly signed the
task order on September 9, 2018 (SOF 12)).

Sept. 18, 2018 The CO informed KMT that she was
providing a final reminder that if she did not
receive signed documents by the following
day, KMT would have to wait for funding
the following fiscal year, “and that may take
several months.”

Sept. 19, 2018 KMT states that it sent the signed documents
on September 10, 2018.

October 7, 2018 KMT asks the CO about the status of
payment.

October 10, 2018 The CO states that she did not receive an
email from KMT on September 10 or 19,
2018. The CO stated that she had called and
emailed KMT several times without
response. She directed KMT to resend the
documents.

October 16, 2018 The CO asked KMT about the status of the
settlement documents and asked why
responses from KMT take several weeks.

6
October 24, 2018 The CO informed KMT that she still had not
received the documents and if she did not
receive a response soon, she would close out
the contract.

October 25, 2018 KMT sent some documents to the CO. The
CO responded 29 minutes later by stating
that what KMT had sent was not an invoice
and was not even in the correct amount. The
CO reminded KMT that she had instructed it
to use the precise wording she had provided.
She once again provided instructions on how
to complete the invoice.

(R4, tabs 219-221)

16. The government paid KMT for the demurrage claim in February 2019 (R4,
tab 938).

The Unpaid TMRs Claim

17. On September 3, 2019, KMT informed CO Hobert that it would be
submitting another claim (R4, tab 82 at 3). KMT appears to have submitted the claim
on September 25, 2019, although it is dated September 4, 2019 (R4, tab 83; am.
compl. ¶ 15). KMT did not submit any narrative to explain what it was seeking, but it
provided the government various documents. First, there is a one-page “cover letter”
that contains a (defective) claim certification in which KMT states that its claim
included dry cargo trips totaling AFN 153,374,065.65, and heavy cargo trips totaling
AFN 48,221,500.42, for a total claim amount of AFN 201,595,566.07 (R4, tab 83).

18. Second, the claim certification referenced 13 binders of documents
“containing the whole claim and all documents related to KMT Complete Missions
Claim NAT 1.0” (id.; R4, tabs 84-96). The first binder contains a spreadsheet that
identifies the amount of the dry TMR claim as AFN 153,374,065.65, which is
consistent with the claim certification, but there is no corresponding spreadsheet or
subtotal for heavy TMRs, and thus no total amount (R4, tab 84 at 4).

19. The Army represents, and KMT does not dispute, that the 13 binders
identify a total of 871 TMRs (ex. G-2). The binders contain only mission sheets and
“ping” information for the GPS system that tracked the trucks (e.g., R4, tab 84 at 12-
14). Paging through the first binder, one can see that many of the mission sheets lack
a signature for the government shipper or receiver, or both (id. at 12, 15, 20, 27, 30,
35, 54, 66, 103, 113). The binders do not include invoices or other records that

7
demonstrate how KMT calculated the amounts in the claim certification or the
spreadsheet in the first binder.

20. KMT provided a complete claim breakdown in a different spreadsheet that
it submitted to the CO in September 2019 (R4, tab 82a; see also tab 82). The tab 82a
spreadsheet lists 718 dry cargo TMRs totaling AFN 160,562,944.49, which is a
different amount from the certification. The spreadsheet lists 206 heavy cargo TMRs
totaling AFN 48,412,750.42, which is also different from the certification. The sum of
the dry and heavy cargo amounts in the tab 82a spreadsheet is greater than in the
certification. The spreadsheet lists a total of 944 TMRs, which is greater than the 871
contained in the 13 binders.

21. In response to the government’s motions, KMT submitted a second
affidavit from Mr. Qadir, along with a revised spreadsheet that lists the total number of
TMRs as 889 but contains the same subtotals and total amount in the claim
certification (Second Qadir affidavit at ¶ 2-3).

22. In response to a request for admission from the government, KMT admits
that it invoiced the government for 780 of the TMRs more than six years before
September 25, 2019, or more than six years before submission of the claim (gov’t 2d
supp. resp. on its mot. for part. sum. judg., ex. A at 27-28).

23. The government contends that as a result of the drafting process for
invoices (SOF 5), KMT knew by the time it submitted an invoice which TMRs the
government was refusing to pay. For example, the government points us to invoice
number KMT9064, submitted on September 3, 2013, for dry cargo in the amount of
AFN 44,757,790.88 (R4, tab 581). KMT submitted an extensive spreadsheet in
support of the invoice. The spreadsheet, like the invoice, reflected an amount sought
of AFN 44,757,790.88 (R4, tab 582). This spreadsheet lists not only the TMRs that
the government had agreed to pay, but those for which it was refusing to pay (e.g.,
listing 231 “failed missions”). For example, one of these failed missions is TMR
ACF3097 (id. at line 347, column T). In addition to listing this as a failed mission,
under “COR REMARKS” the spreadsheet that the COR verified that the truck never
in-gated at its destination 2 (id. at column AB; gov’t 2nd supp. resp. on gov’t mot. for
part. sum. judg. SUMF ¶¶ 41-42). On September 26, 2013, the government paid the
invoice in the amount requested, AFN 44,757,790.88 (R4, tab 275).

2
KMT agrees that the government has accurately described the information
concerning ACF3097 but states that “this paragraph does not resolve material
facts concerning whether the mission was completed” (app. resp. to 2d supp. br.
at 8, ¶ 42). KMT does not tell us what these material facts are, however. The
Board considers this response to be conclusory and inadequate under Board
Rule 7(c).
8
24. The spreadsheet that is attached to the second Qadir affidavit includes
TMR ACF3097. Consistent with the government’s contentions, KMT identifies the
government’s explanation for its refusal to pay as “Verified with the 610th MCT that
the truck never in-gated BAF.” KMT nevertheless contends that it completed the
mission and is entitled to be paid. (Second Qadir affidavit at 25, line 202). There are
nearly 300 TMRs among the 889 TMRs for which the COR stated that the truck never
in-gated at the destination.

25. The spreadsheet lists a variety of other reasons why the COR denied
payment. All are terse but some are simple and easy to understand (“Signatures are
fraudulent and match previous fraudulent documents,” “no shipper signature,” “[n]o
signatures,” “no supporting documentation” (id. at 22-23)). However, others are more
ambiguous. By our count, for more than 400 of the TMRs the COR remark includes
the word “Investigate.” This appears on its own, or with further explanation that is
somewhat less favorable to KMT such as “Investigate [] No ingate or outgate/Need
verification via email or memo” (id. at 29). The record does not indicate when or if
the government concluded an investigation of these TMRs or if it was awaiting further
information from KMT.

26. On September 27, 2019, CO Hobert denied the claim, citing the “full
release” that KMT signed in connection with the demurrage settlement (R4, tab 97
at 9).

27. KMT filed a timely appeal on December 20, 2019.

DECISION

I. The Board Lacks Jurisdiction To Consider TMRs not Timely Appealed

The government has moved to dismiss KMT’s claim with respect to TMRs for
which a CO issued a final decision in 2014 but KMT did not appeal at that time.

The Contract Disputes Act (CDA), 41 U.S.C. § 7104(a), provides that a
contractor may file an appeal with the Board within 90 days of receipt of a final
decision. The 90-day appeal period under the CDA is jurisdictional and may not be
waived. Cosmic Constr. Co. v. United States, 697 F.2d 1389, 1390-91 (Fed. Cir.
1982).

None of KMT’s briefs mention the word “jurisdiction.” KMT also tends not to
respond directly to many of the government’s factual allegations – at least by
following the same numbering format as the government - so that we have to search its
briefs to determine what its position is. KMT’s primary contention appears to be that,

9
even though the 2014 letters from the COs state that they are final decisions and notify
KMT of its appeal rights, the COs were open to considering subsequent evidence from
KMT and would pay individual TMRs if persuaded, rather than stand on their final
decisions and force KMT to litigate. From this, KMT appears to conclude that the
appeal deadlines were suspended for all TMRs. (App. resp. to mot. for part. sum.
judg. at 2-6).

The Board agrees with KMT that if a contractor requests reconsideration, or if
the CO indicates that she wishes to further discuss a claim, this can suspend the
deadline for filing an appeal at the Board or a direct action at the Court of Federal
Claims. Guardian Angels Medical Serv. Dogs, Inc. v. United States, 809 F.3d 1244,
1248-51 (Fed. Cir. 2016). However, it would be unwarranted to conclude that, on a
contract involving hundreds of disputed TMRs, the CO’s willingness to reconsider
individual TMRs suspends the appeal deadline on TMRs for which the contractor did
not request reconsideration. And KMT cites no evidence that it requested
reconsideration of the 32 TMRs for which there was a substantive denial (SOF 8).

This brings us to the second point made by KMT: there were six TMRs for
which the COs denied payment because KMT never submitted an invoice. They
directed KMT to submit an invoice (SOF 7). Certainly, the COs’ decisions in this
respect can be viewed as a willingness to further evaluate these TMRs, which would
make the decision non-final with respect to them. But this does not help KMT. If
KMT never submitted an invoice for these TMRs, the agency never formally denied
payment. If the agency never formally denied payment, there is no dispute for which
the Board possesses jurisdiction. Parsons Global Serv., Inc. ex rel. Odell Intern., Inc.
v. McHugh, 677 F.3d 1166, 1172-73 (Fed. Cir. 2012) (holding that the Board lacked
jurisdiction because “the record does not indicate that the PCO, the appropriate
government official to evaluate the request at issue, ever received a proper request for
payment, such as a voucher. Without a pre-exiting dispute over its routine request,
Parsons has not submitted a valid claim.”).

The Board does not possess jurisdiction to consider KMT’s claim with respect
to the 38 TMRs identified in SOFs 7-8.

II. Whether the TMRs are Untimely

A claim under the CDA must be submitted within six years of accrual.
41 U.S.C. § 7103(a)(4)(A). The Federal Circuit has held that “[w]hether and when a
claim has accrued is determined according to the Federal Acquisition Regulation
(FAR), the language of the contract, and the facts of the particular case.” Electric Boat
Corp. v. Sec’y of Navy, 958 F.3d 1372, 1375 (Fed. Cir. 2020) (citing Kellogg Brown &
Root Servs., Inc. v. Murphy, 823 F.3d 622, 626 (Fed. Cir. 2016)). Pursuant to FAR
33.201, a claim accrues “when all events, that fix the alleged liability of either the

10
Government or the contractor and permit assertion of the claim, were known or should
have been known. For liability to be fixed, some injury must have occurred.
However, monetary damages need not have been incurred.” In Electric Boat, the
Federal Circuit held that the contractor’s injury occurred on the date the Occupational
Safety and Health Administration issued a new regulation. However, the Court held
that the statute of limitations did not begin to run until the date on which the contract
allowed the contractor to seek a price adjustment for a change of law (which was after
issuance of the regulation). Electric Boat, 958 F.3d at 1376-77.

The Board has already considered the question of when a claim begins to
accrue on a different National Afghan Trucking contract. In BNN Logistics, ASBCA
No. 61841 et al., 21-1 BCA ¶ 37,912 at 184,127, the Board ruled that the limitations
period began to run when the contractor received a marked-up draft of the invoice
showing the government’s deductions. The Board rejected the contractor’s argument
that the period only began to run when the contractor received a reduced payment.
Accord Afghan Premier Logistics, ASBCA No. 62938, 22-1 BCA ¶ 38,074 at 184,905
recon. denied 23-1 BCA ¶ 38,373.

It is not entirely clear how the Board should apply this ruling to the present
appeal. KMT admits that it invoiced 780 of the 889 TMRs more than six years prior to
submitting its claim (SOF 22), which would suggest that close to 90% of its claim is
untimely. But the Board is not even convinced it is true that KMT invoiced 780 of the
TMRs before September 25, 2013, notwithstanding KMT’s admission, based on the
record. The government has submitted a spreadsheet marked as exhibit G-2, which
lists 871 TMRs (based on KMT’s 13 claim binders) and provides a mission
completion date for each one. This document shows KMT completing the 780th TMR
on September 23, 2013. (The spreadsheet shows 468 TMRs completed by July 31 and
725 TMRs completed by August 31, 2013.) We doubt that KMT could have prepared
an invoice, submitted it to the COR, and worked through the process of identifying
payable TMRs in just two days.

Another factor is the use of the word “investigate” with respect to more than
400 TMRs (SOF 25). It is not clear what such an investigation would consist of, or
who would perform it. For purposes of the present motion, the Board will assume that
“investigate” when used by itself refers to a government investigation. Because we
know nothing about the results of any such investigation, including the end date, the
Board cannot grant summary judgment on these TMRs.

It is even less clear what we should do with TMRs marked “Investigate [] No
ingate or outgate/Need verification via email or memo” (SOF 25). While our first
response would be to assume a government investigation, the contract specifies that it
is the contractor’s responsibility to obtain a signed memorandum or sworn statement
from the customer if it did not obtain a signature on the mission sheet from the

11
receiving official (SOF 4). Thus, this COR remark could contemplate action by either
party, or perhaps both, and we do not know how any of these concluded. Summary
judgment on these TMRs is denied.

However, it is also clear that, if the Board were to go through the remaining
TMRs one by one, more than 400 could be time barred. But given the Board’s
decision with respect to the release language in Task Order 0007 discussed below, it is
not necessary to perform this analysis. Cf. Minesen Co. v. McHugh, 671 F.3d 1332,
1337 (Fed. Cir. 2012) (court “decline[d] to decide [jurisdictional] issue” because it was
a “complex” matter that did not need to be addressed due to the circumstances in that
case).

IV. Whether KMT Provided a Full Release

A. Paragraph 3 of Task Order 0007

A contractor that signs a general release is barred from maintaining a claim for
damages for events that occurred prior to execution of the release. B. D. Click Co.,
Inc. v. United States, 614 F.2d 748, 756 (Ct. Cl. 1980). While a tribunal may dislike
depriving an appellant of the opportunity to prosecute its claim, “to hold otherwise . . .
would go far toward destroying that certainty in business affairs which releases were
designed to provide.” J.G. Watts Const. Co. v. United States, 161 Ct. Cl. 801, 810
(1963). If a contractor wishes to preserve its rights to submit further claims, it should
list them as an exception to the release. Id. at 805.

The Board returns to paragraphs 3 and 4 of Task Order 0007:

3. This settlement agreement constitutes a full release and
accord and satisfaction by the Contractor of any and all
claims, demands, or causes of action, actual or perceived,
known or unknown, arising under or related to this contract
which formed the basis for this settlement agreement.

4. The contractor remises, releases, and discharges the
Government, its officers, agents, and employees of and
from all civil liabilities, obligations, claims, appeals and
demands which it now has or hereafter may have, whether
known or unknown, administrative or judicial, legal or
equitable, including attorney’s fees, arising under or in any
way related to the disputes which formed the basis of this
settlement agreement.

(SOF 13)

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The Board holds that paragraph 3 of Task Order 0007 clearly contained a
general or full release. Specifically, the phrases “a full release and accord and
satisfaction,” “of any and all claims,” “actual or perceived, known or unknown,” and
“arising under or related to this contract” all convey that KMT was providing the
broadest possible release related to this contract.

To be sure, the ending of this sentence, “. . .arising under or [ ] related to this
contract which formed the basis for this settlement agreement,” is a bit awkward. But
we see no plausible interpretation of the limiting phrase beginning with “which” other
than that it modifies the noun that it immediately precedes: contract. The Supreme
Court has explained this grammatical rule - the last antecedent rule - as follows:

imagine you are the general manager of the Yankees and
you are rounding out your 2016 roster. You tell your scouts
to find a defensive catcher, a quick-footed shortstop, or a
pitcher from last year’s World Champion Kansas City
Royals. It would be natural for your scouts to confine their
search for a pitcher to last year’s championship team, but
to look more broadly for catchers and shortstops.

Lockhart v. United States, 577 U.S. 347, 351-52 (2016). In this appeal, the CO
perhaps could have written a nicer sentence if she had simply written “all claims . . .
arising under or related to this contract” or “all claims . . . arising under or related to
contract W91B4N-11-D-7009” but the meaning of the sentence conveyed by our
rewrites is the same as it was in paragraph 3 of Task Order 0003. It is a release of all
claims, known or unknown, for the contract at issue.

B. Paragraphs 3 and 4 of Task Order 0007 Read In Context

In interpreting the release language, we are mindful that we must construe a
contract “to effectuate its spirit and purpose giving reasonable meaning to all parts of
the contract.” LAI Servs., Inc. v. Gates, 573 F.3d 1306, 1314 (Fed. Cir. 2009) (quoting
Hercules, Inc. v. United States, 292 F.3d 1378, 1381 (Fed. Cir. 2002)). In our view,
this requires us to consider both paragraphs 3 and 4 of Task Order 0007 in evaluating
the interpretations presented by the parties.

KMT contends that it provided a limited release pertaining only to the
demurrage claim. KMT does not provide a plausible interpretation of paragraph 3 of
Task Order 0007 that explains why it is not a “full release” as it states. KMT’s
contention that paragraph 3 is a limited release has the additional drawback of making
it entirely redundant with paragraph 4, which is a limited release. Paragraph 4 clearly
states that the matters released relate only to “the disputes which formed the basis of
this settlement agreement,” that is, to the demurrage claim.

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The government’s interpretation is that paragraph 3 is a general release and
paragraph 4 is a specific limited release related to the demurrage claim. This, too, is a
bit redundant because a full or general release would, by implication, have released the
demurrage claim. However, it is less redundant than that of KMT and we see two
virtues of the government’s approach.

First, if there were no paragraph 4, the demurrage claim may have been
released by the language in paragraph 3, but paragraph 4 forecloses any doubts
because it makes the demurrage release explicitly true rather than leaving it as implicit.
Second, the demurrage claim, for which there had already been a certified claim and
final decision, was a claim ripe for litigation, as opposed to those potential claims that
had not been submitted to the CO. The government faced a more immediate threat of
litigation related to demurrage than it did for other claims that were inchoate or merely
theoretical. Accordingly, there is some logic in favor of a more in-depth treatment of
the demurrage claim that recognizes the government’s risk. Paragraph 4, unlike
paragraph 3, releases the government from liability for attorney fees that KMT might
have been entitled to if it prevailed on the claim in litigation (“all civil liabilities . . .
including attorney’s fees”). Paragraph 4 also makes it clear that if, unbeknownst to the
CO, KMT had already filed an appeal at the Board or an action in court, that KMT was
waiving the right to pursue such litigation (“all civil liabilities . . . administrative or
judicial, legal or equitable”).

The Board recognizes that there was some change in the language and
formatting of the release language from the settlement agreement to Task Order 0007
(SOF 11, 13). But KMT has not contended that the result would be any different if the
Board solely analyzed the language in the settlement agreement (we don’t perceive it
to be materially different) and we consider any such argument to have been waived in
any event.

Finally, KMT also contends that there was no meeting of the minds with respect
to releasing the claim for unpaid TMRs. The most KMT could possibly show in this
respect is that it did not appreciate what it was signing when it signed Task Order 0007
(see First Qadir affidavit, ¶ 6). The Court of Claims disposed of a comparable
argument by stating: “unilateral ignorance of one’s legal rights where ‘all the facts
bearing on the existence of the injury were known’ does not suffice to relieve one of
the consequences of having released the claim.” J.G. Watts, 161 Ct. Cl. at 810 (citing
Shepherd v. United States, 125 Ct. Cl. 724, 742 (1953)).

C. KMT’s Duress Argument

Claims may be considered after the execution of a release only in special and
limited circumstances, such as where the release contains a specific exception for the

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claim, or if the release was entered under economic duress. Mingus Constructors, Inc.
v. United States, 812 F.2d 1387, 1395 (Fed. Cir. 1987) (citing J.G. Watts, 161 Ct. Cl.
at 806-07). “To render a contract unenforceable for duress, a party must establish (1)
that it involuntarily accepted the other party’s terms[;] (2) that circumstances permitted
no other alternative[;] and (3) that such circumstances were the result of the other
party’s coercive acts.” N. Star Steel Co. v. United States, 477 F.3d 1324, 1334 (Fed.
Cir. 2007) (citation omitted). “Economic pressure and ‘even the threat of considerable
financial loss’ are not duress.” Johnson, Drake & Piper, Inc. v. United States, 531
F.2d 1037, 1042 (Ct. Cl. 1976) (quoting International Tel. & Tel. Corp. v. United
States, 509 F.2d 541, 549, n.11 (Ct. Cl. 1975)).

KMT has not made a plausible showing that it meets any of the elements of
duress. It has not identified any evidence showing that it accepted the terms of the
settlement involuntarily, that it had no alternative to acceptance, or that the
government engaged in coercive acts. The emails cited by Mr. Qadir in his affidavit
(SOF 14) do not show any objection by KMT to the release language or any mention
of it at all. It is true that CO Hobert sent KMT periodic reminders asking about the
status of KMT signing documents but there is nothing coercive in her emails.

With respect to Mr. Qadir’s one specific statement – that he felt pressured to
sign the documents by September 19, 2018 or KMT would risk waiting months to get
paid in the new fiscal year – the Board observes the following from the undisputed
facts. KMT signed the settlement agreement in June 2018 (SOF 11), long before the
end of the fiscal year became an issue. KMT has not identified anything that changed
in the deal after the signing of the settlement agreement. Thus, KMT had already
agreed to the terms of the deal long before the fiscal year deadline became an issue.

The CO did make the statement that KMT cites: on September 18, 2018 she
stated that if KMT did not sign by the following day it would have to wait until the
following fiscal year for funds, which might take months (SOF 15). But KMT
responded by representing to the CO that it had already signed the documents on
September 10, 2018 (and the task order bears a September 9, 2018 signature date by
KMT (SOF 12)), or eight days before the statement that supposedly caused the duress.
If KMT was truthful with the CO, it could not have felt duress from a statement that
had not yet been made. Further, it is also undisputed that the CO did not actually
receive the documents until after the fiscal year ended. (SOF 15-16). Thus, regardless
of whether KMT actually signed the documents on September 10 and sent them to the
CO, there is no evidence that shows that KMT took any action to sign the settlement
documents after the CO’s September 18 email and provide those documents to her by
the following day.

KMT also does not provide any evidence that the CO’s statement about the
timeline to obtain new funding in the next fiscal year was untrue. Budgets, fiscal years

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and the complexities of government appropriations are simply a fact of life in
government contracting and present challenges when the agency is trying to settle a
contract claim. See National Science Foundation-Potential Antideficiency Act
Violation by the National Science Board Office, B-317413, 2009 CPD ¶ 94 (Comp.
Gen. April 24, 2009) (“Generally, costs of a settlement are to be paid using
appropriations current at the time of settlement. . . . payment is chargeable to
appropriations current at the time of final action on the settlement because the
settlement creates a new right in the successful claimant”).

Interwoven with KMT’s duress contention is an argument that the release, to
the extent that it goes beyond the demurrage claim and also releases the TMR claim,
fails due to a lack of consideration. The Board disagrees. KMT received valuable
consideration of $808,000. Even if KMT was entitled to this money and the TMR
claim was entirely valid, the release is still enforceable. Inland Empire Builders, Inc.
v. United States, 424 F.2d 1370, 1375-76 (Ct. Cl. 1970).

CONCLUSION

KMT’s claim with respect to the TMRs identified in SOFs 7-8 is dismissed for
lack of jurisdiction. The Board grants the government summary judgment on the
remainder of KMT’s claim. Accordingly, the appeal is denied. 3

Dated: February 13, 2024

MICHAEL N. O’CONNELL
Administrative Judge
Acting Vice Chairman
Armed Services Board
of Contract Appeals

(Signatures continued)

3
Due to our rulings, the Board need not address the government’s contention that the
appeal should be dismissed because KMT’s claim failed to state a sum certain.
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I concur I concur

OWEN C. WILSON J. REID PROUTY
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals

I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 62319, Appeal of Kandahar
Mahali Transit & Forwarding LTD., rendered in conformance with the Board’s Charter.

Dated: February 13, 2024

PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10477236. Public record. Not legal advice.