Trident Engineering & Procurement, P.C.

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeals of - )

)

Trident Engineering & Procurement, P.C. ) ASBCA Nos. 60541, 62144

)

Under Contract No. W52P1J1-14-D-0037 )

APPEARANCES FOR THE APPELLANT: Michael E. Barnicle, Esq.

Arnold & Porter

Chicago, IL

Keith J. Feigenbaum, Esq.

Arnold & Porter Kaye Scholer LLP

Washington, DC

APPEARANCES FOR THE GOVERNMENT: Scott N. Flesch, Esq.

Army Chief Trial Attorney

CPT Jules L. Szanton, JA

Dana J. Chase, Esq.

CPT Camille J Grathwohl, JA

Trial Attorneys

OPINION BY ADMINISTRATIVE JUDGE THRASHER ON THE

GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT AND APPELLANT’S

CROSS-MOTION FOR SUMMARY JUDGMENT

This dispute involves a contract for Trident Engineering & Procurement, P.C.

(Trident) to provide the U.S. Army Contracting Command - Rock Island (government)

a 12-month leases of non-tactical vehicles in Qatar, Camp As Sayliyah. Relevant to

these appeals, in addition to providing non-tactical leased vehicles, Trident was to

maintain the vehicles and invoice for traffic violations and tolls. In December 2015,

Trident’s representative, without authorization, retrieved the leased vehicles under the

contract and permanently transferred them to a third party. As a result, the

government terminated the contract for default, and the contracting officer issued a

negative Contractor Performance Assessment Reporting System (CPARS) rating.

The government moved for summary judgment, and Trident moved for

cross-summary judgment. We grant the government’s motion for summary judgment

in part and deny it in part. We deny Trident’s cross-motion for summary judgment.

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

Base Contract and Task Orders 0006-0008

1. The U.S. Army Contracting Command - Rock Island awarded an indefinite

delivery indefinite quantity, firm fixed price contract W52P1J-14-D-0037 (contract)

for Non-Tactical Vehicle leasing services at various camps in Qatar, Jordan, and the

United Arab Emirates (UAE) to Trident Engineering and Procurement P.C. (Trident,

appellant) (R4, tab 1 at 000003). Trident was to provide all equipment, tools,

materials, supervision, and other items and non-personal services necessary to

maintain the vehicular leasing and maintenance requirements. The vehicle leases

would be established on a 12-month cycle. (Id.)

2. The contract period of performance was for one base year (February 3,

2014 – February 2, 2015) with two 1-year option periods (R4, tab 1 at 000003).

3. At issue in this appeal are the government’s leases for five non-tactical

vehicles and the claimed costs for “traffic violations and tolls,” described below in

Task Orders 0006-0008.

4. Task Order 0006 was issued on July 6, 2015, for a 12-month lease of

non-tactical vehicles in Qatar. Trident was to deliver to the government two full-sized

SUVs. A separate contract line item number (CLIN) 0012AA for “traffic

violations/tolls” was established in the amount of $2,376.00. (Gov’t mot., ex. G-5

at 00000037; app. reply to gov’t resp. to app’s statement of undisputed material facts

dtd. 1 April 15, 2022, ¶¶ 1-2). 2

1

In response to the government’s motion for summary judgment, appellant submitted

a “Statement of Genuine Issues of Material Fact” in its reply brief dated

April 15, 2022, which corresponds to the numbered paragraphs in the

government’s Statement of Undisputed Material Facts alleged in its motion.

Relevant paragraphs are noted herein. Appellant’s statement will be cited as

(app. statement of genuine issues of material fact).

2

Both parties move for summary judgment and assert no disputed material facts

regarding their respective legal positions, but they interpret the contract and

events differently. “Merely because a party has moved for summary judgment

and avers there are no genuine issues of fact precluding its recovery does not

mean that it ‘concede[s] that no issues remain in the event [that its] adversary’s

theory is adopted.’” We evaluate each cross-motion “separately on its merits,

and all reasonable inferences are drawn in favor of the defending party; the

Board is not bound to ‘grant judgment as a matter of law for one side or the

other.’” United Healthcare Partners, Inc., ASBCA No. 58123, 16-1 BCA

¶ 36,374 at 177,113; Osborne Constr. Co., ASBCA No. 55030, 09-1 BCA

2

5. Similar to Task Order 0006, Task Orders 0007 and 0008 were issued on

July 6, 2015, and September 13, 2015, for 12-month leases of non-tactical vehicles in

Qatar. Trident was to deliver a mid-size SUV and a crew-cab pickup (4x4) under Task

Order 0007 and deliver a full-size SUV under Task Order 0008 (gov’t mot., ex. G-5

at 00000041, 00000043, 00000047, 00000049; app. reply to gov’t resp. to app’s

statement of undisputed material facts dtd. April 15, 2022, ¶¶ 12-14). Task Orders 0007

and 0008 established a separate CLIN 0012AA for “Traffic Violations/Tolls” in the

amount of $2,359.20 and $1,326, respectively (gov’t mot., ex. G-5 at 00000045,

00000049).

6. On November 14, 2015, Mr. Tony Kuster (Vice President of Operations,

Trident) responded to the contracting officer’s representative (COR) email of the same

day that Mr. Hany Mostafa 3 is Trident’s representative in Qatar and that Mr. Mostafa

will coordinate vehicles to be removed off-base for repairs and maintenance (R4,

tab 14 at 000167-68).

7. On November 26, 2015, the COR emailed Mr. Kuster that Mr. Mostafa

documented vehicle damage on a vehicle inspection report. Mr. Kuster responded the

same day that Trident would request an equitable adjustment if Mr. Mostafa indicated

the damage on the sign-off sheet. (R4, tab 43 at 000301-02)

8. On December 20, 2015, the COR sent an email to the contracting officer

(CO), Ms. Keller, informing her that he had received text messages from

Mr. Mohammed Alajmi claiming to be a partner of Trident, who asserted he had not

received payment for the vehicles leased in the government’s possession for the Qatar

Task Orders 0006-0008 and that he wanted the vehicles back (Rule 4, tab 13 at 000135;

app. statement of genuine issues of material fact, ¶ 15;app. reply to gov’t resp. to app’s

statement of undisputed material facts dtd. April 15, 2022, ¶ 15).

9. On December 21, 2015, Mr. Alajmi forwarded an email exchange between

him and Mr. John Zvarick (Executive Vice-President of Trident) to the COR (R4,

tab 16). In the forwarded email, Mr. Zvarick stated to Mr. Alajmi that Trident was

losing “hundreds of thousands of dollars” with its Army vehicle leasing contract, which

Trident was “ending,” but that he was willing to negotiate a settlement with Trident’s

¶ 34,083 at 168,513 (quoting Mingus Constructors, Inc. v. United States,

812 F.2d 1387, 1391 (Fed. Cir. 1987)).

3

The parties have cited various spellings of Mr. Hany Mohamed Mostafa. Therefore,

the Board will use the spelling provided in the Camp As Sayliyah Personnel

Security Questionnaire and the screening Badge Request: Mostafa (R4, tab 10

at 000107; tab 63). However, if the Board quotes a document, it will employ

the spelling of Mr. Mostafa from that document.

3

business partners for the past due payments for the leased vehicles. But he also stated

that if Mr. Alajmi retrieves the leased vehicles in Kuwait, Mr. Zvarick will “walk

away” from the Qatar contract. Additionally, Mr. Zvarick suggested settling Trident’s

past due debts, noting that Mr. Alajmi, as the vehicles’ registrant and Trident’s “full

power of attorney,” could retrieve the leased vehicles and sell them. Also, Mr. Zvarick

reminded him that “I have given you full power of attorney . . . . All the cars that

remain are in your name so what you do with them is between Al Manar and you. My

advice is to sell them and to give Al Manar all the money to settle as much of the debt

as possible.” Finally, Mr. Zvarick stated that if Mr. Alajmi did not renew the vehicles’

licenses, he would not send him any more money, and it would be up to Mr. Alajmi to

solve the past due payments. (Id. at 000170-71)

10. On December 22, 2015, the CO emailed Mr. Zvarick and Mr. Tony Kuster

(Vice President of Operations, Trident), informing them that the COR was contacted

by Mr. Alajmi, who alleged he was a partner of Trident, and the registered owner of

the leased vehicles under the contract, but has not received payment. The CO

informed Trident that the government could not prohibit the vehicles’ owner and

registrant from picking up the leased vehicles. Additionally, the CO stated if

Mr. Alajmi picked up the leased vehicles before the end of the task order and Trident

failed to provide replacement vehicles, Trident would be in default. (Rule 4, tab 15

at 000145-46; app. statement of genuine issues of material fact, ¶¶ 16-18)

11. The same morning Mr. Zvarick responded to Ms. Keller, stating that Trident

is looking into the issue “to insure there is no interruption of service” (R4, tab 15

at 000145) (app. statement of genuine issues of material fact, ¶ 19).

12. Mr. Kuster responded to Ms. Keller the next day, December 23, 2015,

stating that the leased vehicles were registered to Mr. Alajmi. Still, Trident failed to

take any measures to provide replacement vehicles if Mr. Alajmi retrieved them,

writing, in part:

We would like to acknowledge that Mr. Alajmi is not a

partner of Trident, but rather a sponsor of Trident

E&P Inc in Kuwait.

That being said, he is correct in that he registered our

vehicles under his name in Qatar. While it is incorrect that

he is not being paid for any “services” he provides, Trident

has taken measures to provide replacement vehicles in the

event he continues on this path.

We are working diligently to resolve this dispute with

Mr. Alajmi, however Trident is prepared to give adequate

4

notice to the COR in the event it becomes necessary to

replace the vehicles.

...

Please rest assured that Trident will continue to provide

uninterrupted service in support of this contract.

...

We are available . . . myself in Kuwait and John in PA.

(R4, tab 18 at 00018; app. statement of genuine issues of material fact, ¶¶ 20-21; (app.

reply to gov’t resp. to app’s statement of undisputed material facts dtd. April 15, 2022,

¶ 19)

13. The same morning, the CO sent an internal email to the contract specialist

and other government members informing them that Trident had stated “they have a

plan in place to provide replacement vehicles” if Mr. Alajmi retrieved them from the

government (R4, tab 17 at 000151-52; app. statement of genuine issues of material

fact, at 9, ¶ 22; app. reply to gov’t resp. to app’s statement of undisputed material facts

dtd. April 15, 2022, ¶ 20). 4

14. On December 24, 2015, the COR emailed the CO informing her that

Mr. Alajmi wanted the vehicles back and was attempting to coordinate a pickup from the

government on December 28, 2015 (Rule 4, tab 17 at 000151; app. statement of genuine

issues of material fact, ¶ 24).

15. The contract specialist emailed the CO on the morning of December 28,

2015, that Mr. Alajmi had texted him and was waiting for an email response from the

CO before picking up the leased vehicles, “Mr. Alajimi [sic] has not picked up the

vehicles yet. He did send me a text stating that he sent Katie [the CO Ms. Keller] an

email and was waiting for her responds [sic] prior to picking up the vehicles” (R4,

tab 21 at 000194; app. statement of genuine issues of material fact, at 10, ¶ 25).

4

Appellant does not dispute the contents of the CO’s email dated December 23, 2015,

and the CO’s declaration. However, appellant disputes “that the

[g]overnment’s actions constituted a review of Mr. Alajmi’s claims. The

Government failed to vet Mr. Alajmi’s claims to the vehicles and accepted

Mr. Alajmi’s claims at face value after a perfunctory email to Trident.” (App.

reply to gov’t resp. to app’s statement of undisputed material facts dtd.

April 15, 2022, ¶ 20)

5

16. The same morning, the CO responded, stating that she had received an

email from Mr. Alajmi. Still, she could not provide any information or assistance to

him as the government does not have privity of contract with Mr. Alajmi (R4, tab 21

at 000194; app. statement of genuine issues of material fact, ¶ 25).

17. That evening, the contract specialist emailed the CO and ACC-RI support

staff to ask if Mr. Alajmi had picked up the vehicles and whether Trident had provided

replacement vehicles (R4, tab 21 at 000195).

18. On December 30, 2015, 1600 Qatar time, Mr. Hany Mostafa, Trident’s

representative and designated vehicle representative in Qatar, retrieved five leased

vehicles under Trident’s active task orders T0006, T0007, and T0008 at Camp

As Sayliyah (R4, tab 10 at 1; tab 14 at 000167; tab 23 at 00213; tab 25; tab 37 at 000279;

tab 63; gov’t mot. at 1, 8; app. statement of genuine issues of material fact, ¶ 32).

Vehicle inspection sheets were completed and signed by both the COR and Mr. Mostafa 5

(R4, tabs 22, 62; gov’t mot., ex. G-5 at 00000081; app. statement of genuine issues of

material fact, ¶ 26).

19. The State of Qatar Vehicle Registration cards for the vehicles that

Mr. Mostafa picked up on December 30, 2015, shows all the vehicles were registered to

and owner[ed] by Mr. Mohammad Abudullah M. D. Alajmi 6 (R4, tab 62; app. statement

of genuine issues of material fact, ¶ 33). Appellant does not object to the vehicle

identification information or that the vehicles were registered to Mr. Alajmi but does

object that Mr. Alajmi was the vehicles’ owner.

20. The CO issued a cure notice under task orders 0006, 0007, and 0008 on

January 6, 2016, for the leased vehicles and maintenance in Qatar. The CO explained

that five leased vehicles were retrieved by Trident on December 30, 2015 and had yet

to be replaced. The CO provided Trident 10 days to cure its deficiency, after which

the government would terminate its contract for cause pursuant to Federal Acquisition

5

(1) vehicle #635181, VIN #1FMJU1H54CEF25113, Ford Expedition; (2) vehicle

#647729, VIN #1FMJU1H52CEF25093, Fort Expedition; (3) Vehicle #635176,

VIN #1GNKR8ED4CJ281962, Chevy Traverse; (4) vehicle #282918, VIN

#1GC1K9CG4BF165853, Chevy Silverado; and (5) vehicle # 635182, VIN

#1FMJU1H59CEF13295, Ford Expedition.

6

(1) vehicle #647729, VIN #1FMJU1H52CEF25093 registered on November 26,

2015; (2) vehicle #282918, VIN #1GC1K9CG4BF165853 registered on

December 14, 2015; (3) vehicle #635176, VIN #1GNKR8ED4CJ281962

registered on November 25, 2015; (4) vehicle #635181, VIN

#1FMJU1H54CEF25113 registered on December 1, 2015; and (5) vehicle

#635182, VIN #1FMJU1H59CEF13295 registered on December 13, 2015.

6

Regulation (FAR) 52.212-4(m), COMMERCIAL ITEMS, TERMINATION FOR

CAUSE. (R4, tab 25; app. statement of genuine issues of material fact, ¶ 36)

21. Mr. Zvarick sent an email to Mr. Alajmi on January 7, 2016, telling him to

either return the vehicles or sell them as soon as possible:

I am shocked that you pulled the cars off the base. Unless

you put these cars back on base immediately Mohammed,

then I have no choice but to end any further interaction

with you or to commit any further funds.

If this is your choice, and you certainly can decide to do

that, then I would suggest that you make every effort to

sell the vehicles as soon as possible.

(Gov’t mot., ex. G-5 at 00000076; app. statement of genuine issues of material fact, ¶ 37)

22. In response to the cure notice, Mr. Kuster stated via email to the CO on the

morning of January 20, 2016, that “I think we have sorted out any problems” and he

will be responding in more detail later that day regarding Trident’s current contract

status and its “predicament” (R4, tab 23 at 000169).

23. Later that evening, Mr. Kuster sent a follow-up email to the CO stating that

“Trident is unable to provide vehicles . . . . Please consider this our negative response”

(R4, tab 23 at 000169-70).

24. The next day, January 21, 2016, the CO issued a Notice of Termination for

Cause for the vehicle lease and maintenance services since Trident failed to timely

address the cure notice dated January 6, 2016, and to provide replacement vehicles

(R4, tab 32; tab 33 at 000248; app. reply to gov’t resp. to app’s statement of

undisputed material facts dtd. April 15, 2022, ¶ 25).

25. The CO issued three separate modifications for Task Orders 0006, 0007, and

0008, on January 28, 2016, to terminate the task orders for cause in accordance with

FAR clause 52.212-4(m) (R4, tab 34 at 000253, 000260, 000266). Under the narrative

section, the CO explained that Trident picked up the leased vehicles on December 30,

2015, and that “Trident is authorized to invoice for approved services under this task

order during this period of performance ONLY. Trident shall not invoice for services

after 30 December 2015” (R4, tab 34 at 000255, 000261, 000267).

7

Contractor Performance Assessment Report (CPAR)

26. The CO issued a CPAR dated April 12, 2016, for performance being

assessed from February 3, 2015 – January 21, 2016, the first option year:

Evaluation Areas Past rating Rating

Quality: Satisfactory Satisfactory

Schedule: Marginal Unsatisfactory

Management: Satisfactory Unsatisfactory

Regulatory Compliance: Satisfactory Unsatisfactory

(R4, tab 37 at 000278)

27. The CO provided detailed rating explanations for each evaluation area.

The CO outlined several of Trident’s deficiencies directed at lack of compliance with

contract terms, failure to provide required documentation under the PWS, poor

communication, poor management, and failure to provide uninterrupted service.

Briefly, under the “schedule” evaluation, the CO explained that Trident failed to

provide uninterrupted service, did not timely respond to the January 6, 2016, cure

notice, and failed to take any actions or provide corrective action to the cure notice.

Under the “management” evaluation, the CO outlined several issues related to

Trident’s failure to submit invoices in accordance with the conditions of the contract,

failed to correct invoicing issues, and long periods in which the government could not

get in touch with Trident. In addition, the CO described poor management of its

employees, resulting in the removal of the vehicles from the base, which caused a

break in service. Under the “regulatory compliance” section, the CO stated that

Trident was issued a Level 1 Non-Conformance Report for failure to provide

maintenance reports and failed to provide documentation as required in the PWS, such

as proof of insurance. The CO noted that the government had sent multiple requests

for this documentation to Trident. Finally, under the “additional/other” section, the

CO described the events surrounding the vehicles being removed from the base on

December 30, 2015, without replacement vehicles being provided and Trident’s failure

to timely respond to the CO’s January 6, 2016, cure notice. (R4, tab 37 at 000279)

Invoices and Invoice Processing

28. The parties refer to invoice submissions and invoice payments through the

Wide Area Workflow (WAWF), which shows Trident’s invoice requests, supporting

details, and the subsequent government processing actions of the invoice. However,

we are unable to ascertain whether the “violations and tolls” CLIN were billed or

included in the voice totals and whether invoices marked as “blocked for payment” by

the payment official were paid. For example, Orders 006 – 008 utilize at least two

CLINs for repayment of the leased vehicles (CLINs 002, 003) and a single CLIN for

8

traffic violations and tolls (CLIN 0012AA). However, it is unclear whether invoices

1-20 demonstrate repayment for the (i) leased vehicles and (ii) traffic violations and

tolls. For example, invoices 2, 4, and 5 are marked “blocked for payment” by the

payment official. The payment official marks some invoices under Task Orders 007

and 008 that the traffic violations and tolls were listed but not billed (invoices 6, 8-12,

14, 15). Lastly, only invoices 16-20 are marked as “paid” by the payment official, but

these invoices do not include the traffic violations and tolls CLIN, 0012AA, in the

invoice total (“unit price” and “invoice amount” are listed as $0.00). The following

chart summarizes the 20 WAWF invoices with corresponding Rule 4 references (R4,

tabs 39-42, 44-59):

Deliever invoice shipment invoice date Payment Official

CLIN # unit price Product/Service ID cite

y Order number number amount invoiced comments

Full Size SUV (635181

R4, tab

1 T0006 TQV0601B TQVS607Z 0002AB $990.00 $1,980.00 6/6/2016 & 635182) 9-Jul-2015 6/20/2016:

39

to 8-Aug-2015 "Document was

Traffic Violations/Tolls processed by the

0012AA $412.01 $412.01 9-Jul-2015 to 8-Aug- entitlement system"

2015

Traffic Violations/Tolls

22-Aug-2015 to 4-Sep- 7/25/2016: "Invoice R4, tab

2 T0006 TQV0608A TQVS614Z 0012AA $412.01 $412.01 7/7/2016

2015 (1500QR) Ford Blocked for payment" 40

Expedition

Traffic Violations/Tolls 7/25/2016:

18-Sep-2015 to 25- "Document was R4, tab

3 T0006 TQV0609A TQVS615Z 0012AA $412.01 $412.01 7/7/2016

Sep-2015 (1500QR) processed by the 41

Ford Expedition entitlement system"

Traffic Violations/Tolls

7/25/2016: "Invoice R4, tab

4 T0006 TQV0610A TQVS616Z 0012AA $412.01 $412.01 7/7/2016 2-Oct-2015 (1500QR)

Blocked for payment" 42

Ford Expedition

Traffic Violations/Tolls

7/25/2016: "Invoice R4, tab

5 T0006 TQV0611A TQV0611A 0012AA $82.42 $82.42 7/7/2016 9-Oct-2015 (300QR)

Blocked for payment" 44

Ford Expedition

Mid Size SUV (635176) 9/12/2016: "Please do

6/24/201 not list clins that are R4, tab

6 T0007 TQV0701C TQVS709Z 0002AA $965.00 $965.00 10-Jul-2015 to 9-Aug-

6 not being billed on 45

2015

future invoices, this

Crew Cab Pickup Truck keeps the invoice from

0003AF $1,001.00 $1,001.00 4X4 (282918) 10-Jul- flowing into the pay

2015 to 9-Aug-2015 system on

Traffic Violations 10- its own. Clin 0012AA

0012AA $0.00 $0.00 Jul-2015 to 9-Aug- was listed but is not

2015 billed."

6/24/201 Mid Size SUV (635176) R4, tab

7 T0007 TQV0702C TQV0702C 0002AA $965.00 $965.00

6 10-Aug-15 to 9-Sep-15 46

Crew Cab Pickup Truck 9/12/2016: "Processed

0003AF $1,001.00 $1,001.00 4X4 (282918) 10-Aug- for payment"

15 to 9-Sep-15

Traffic Violations 10-

0012AA $82.40 $82.40

Aug-15 to 9-Sep-15

9/12/2016: "Please do

6/24/201 Mid Size SUV (635176) R4, tab

8 T0007 TQV0703B TQVS711Z 0002AA $965.00 $965.00 not list clins that are

6 10-Sep-15 to 9-Oct-15 47

not being billed on

Crew Cab Pickup Truck future invoices, this

0003AF $1,001.00 $1,001.00 4X4 (282918) 10-Sep- keeps the invoice from

15 to 9-Oct-15 flowing into the pay

system on

Traffic Violations 10- its own. Clin 0012AA

0012AA $0.00 $0.00 was listed but is not

Sep-15 to 9-Oct-15

billed."

9/12/2016: "Please do

6/24/201 Mid Size SUV (635176) R4, tab

9 T0007 TQV0704B TQVS712Z 0002AA $965.00 $965.00 not list clins that are

6 10-Oct-15 to 9-Nov-15 48

not being billed on

9

Crew Cab Pickup Truck future invoices, this

$1,001.00 $1,001.00 4X4 (282918) 10-Oct- keeps the invoice from

15 to 9-Nov-15 flowing into the pay

system on

Traffic Violations 10- its own. Clin 0012AA

$0.00 $0.00 was listed but is not

Oct-15 to 9-Nov-15

billed."

9/12/2016: "Please do

6/24/201 Mid Size SUV (635176) R4, tab

10 T0007 TQV0705B TQVS713Z 0002AA $965.00 $965.00 not list clins that are

6 10-Nov-15 to 9-Dec-15 49

not being billed on

Crew Cab Pickup Truck future invoices, this

0003AF $1,001.00 $1,001.00 4X4 (282918) 10-Nov- keeps the invoice from

15 to 9-Dec-15 flowing into the pay

system on

Traffic Violations 10- its own. Clin 0012AA

0012AA $0.00 $0.00 was listed but is not

Nov-15 to 9-Dec-15

billed."

Mid Size SUV (635176) 9/12/2016: "Please do

6/24/201 not list clins that are R4, tab

11 T0007 TQV0706C TQVS714Z 0002AA $675.50 $675.50 10-Dec-2015 to 30-

6 not being billed on 50

Dec-2015

Crew Cab Pickup Truck future invoices, this

0003AF $700.70 $700.70 4X4 (282918) 10-Dec- keeps the invoice from

2015 to 30-Dec-2015 flowing into the pay

system on

Traffic Violations 10- its own. Clin 0012AA

0012AA $0.00 $0.00 Dec-2015 to 30-Dec- was listed but is not

2015 billed."

Full Size SUV (647729) 9/12/2016: "Please do

5/12/201 R4, tab

12 T0008 TQV0801B TQVS807Z 0002AB $1,105.00 $1,105.00 13-Sep-2015 to 12- not list clins that are

6 51

Oct-2015 not being billed on

future invoices, this

keeps the invoice from

Traffic Violations/Tolls

flowing into the pay

0012AA $0.00 $0.00 13-Sep-2015 to 12-

system on its own. Clin

Oct-2015

0012AA was listed but

is not billed."

Full Size SUV (647729)

6/20/201 R4, tab

13 T0008 TQV0802C TQVS808Z 0002AB $1,105.00 $1,105.00 13-Oct-2015 to 12-

6 52

Nov-2015

Traffic Violations/Tolls 9/12/2016: "Processed

13-Oct-2015 to 12- for payment."

0012AA $274.72 $274.72 Nov-2015 (Backup

documentation

attached)

Full Size SUV (647729) 9/12/2016: "Please do

5/12/201 R4, tab

14 T0008 TQV0803B TQVS809Z 0002AB $1,105.00 $1,105.00 13-Nov-2015 to 12- not list clins that are

6 53

Dec-2015 not being billed on

future invoices, this

keeps the invoice from

Traffic Violations/Tolls

flowing into the pay

0012AA $0.00 $0.00 13-Nov-2015 to 12-

system on its own. Clin

Dec-2015

0012AA was listed but

is not billed."

Full Size SUV (647729) 9/12/2016: "Please do

6/20/201 R4, tab

15 T0008 TQV0804B TQVS810Z 0002AB $663.00 $663.00 13-Dec-2015 to 30- not list clins that are

6 54

Dec-2015 not being billed on

future invoices, this

keeps the invoice from

Traffic Violations/Tolls

flowing into the pay

0012AA $0.00 $0.00 13-Dec-2015 to 30-

system on its own. Clin

Dec-2015

0012AA was listed but

is not billed."

Ford Expedition, Full

Size SUV (635181 & R4, tab

16 T0006 TQV0602A TQVS602Z 0002AB $990.00 $1,980.00 5/5/2016 5/13/2018: "Paid"

635182) 9-Aug-2015 to 55

8-Sep-2015

QatarNTVTrafficViolati

0012AA $2,005.49 $0.00

onandTolls

Ford Expedition, Full

Size SUV (635181 & R4, tab

17 T0006 TQV0603A TQVS603Z 0002AB $990.00 $1,980.00 5/5/2016 5/13/2018: "Paid"

635182) 9-Sep-2015 to 56

8-Oct-2015

QatarNTVTrafficViolati

0012AA $2,005.49 $0.00

onandTolls

10

Ford Expedition, Full

Size SUV (635181 & R4, tab

18 T0006 TQV0604A TQVS604Z 0002AB $990.00 $1,980.00 5/5/2016 5/13/2018: "Paid"

635182) 9-Oct-2015 to 57

8-Nov-2015

QatarNTVTrafficViolati

0012AA $2,005.49 $0.00

onandTolls

Ford Expedition, Full

Size SUV (635181 & R4, tab

19 T0006 TQV0605A TQVS605Z 0002AB $990.00 $1,980.00 5/5/2016 5/13/2018: "Paid"

635182) 9-Nov-2015 58

to 8-Dec-2015

QatarNTVTrafficViolati

0012AA $2,005.49 $0.00

onandTolls

Ford Expedition, Full

Size SUV (635181 & R4, tab

20 T0006 TQV0606 TQVS606Z 0002AB $726.00 $1,452.00 5/5/2016 5/13/2018: "Paid"

635182) 9-Dec-2015 to 59

30-Dec-2015

QatarNTVTrafficViolati

0012AA $2,005.49 $0.00 5/5/2016

onandTolls

Trident’s March 31, 2019, Claim

29. Trident filed a certified “Contract Claim for Damages due to Government

Breach,” dated March 1, 2019, demanding “$27,510.99 for services provided before

the vehicle transfer, and $392,515.79 in damages resulting from the government’s

breaches” (a total of $420,026.78) (gov’t mot., ex. G-2 at 9-11, 15; ex. 3; R4, tab 60

at 2)). In addition, Trident alleges that the “final CPAR” is “arbitrary and capricious”

and requests revisions to accurately reflect Trident’s performance (gov’t mot., ex. G-2

at 13-14). Finally, Trident’s claim requests that the termination for cause under Task

Orders 0006-0008 should be converted to a termination for convenience as Trident’s

interrupted services were caused by the government’s breach of unauthorized transfer

of the leased vehicles to Mr. Alajmi (id. at 14).

COFD dated May 16, 2019

30. The CO issued a final decision on May 16, 2019, for Trident’s March 1,

2019, claim (R4, tab 60). The CO determined that Trident’s claim “lacks merit” and

denied it in its entirety (R4, tab 60 at 000385).

Katherine Keller Declaration

31. Katherine Keller was assigned to ACC-RI and was the CO for the contract

and testified by submittal of a sworn declaration. We find the declaration of CO Keller

credible and not contradicted by any evidence of comparable weight. 7

7

See Black Tiger Co., ASBCA No. 59819, 18-1 BCA ¶ 37,046 at 180,336 (Board

found that the submitted declarations credible, “persuasive and of great weight

[and] Appellant has offered no evidence or made any argument to rebut these

declarations. . .”); Smart Constr. & Eng’g Co., ASBCA No. 59354, 15-1 BCA

¶ 36,018 at 175,917 (The Board finding that the declaration was credible,

supported by the record, and highly probative).

11

32. CO Keller declared that Trident stated that Mr. Mostafa would be its

representative and provided documents for the background check to obtain a base access

badge to enter the base as Trident’s representative. In his role as Trident’s

representative, Mr. Mostafa provided quality assurance on the vehicles. He addressed

vehicle issues such as requiring repairs, registration, tire changes, and/or oil changes,

being involved in accidents, and receiving traffic fines. Mr. Mostafa would then work to

resolve those issues on behalf of Trident. In addition, the CO declared that Mr. Kuster

informed the government that Mr. Mostafa had the authority to inspect vehicles, perform

maintenance work on the vehicles, and pick up the vehicles from the government. Thus,

as Trident’s representative, Mr. Mostafa handled all vehicle inspections, maintenance,

and returns. (Gov’t reply, Katherine Keller decl. ¶¶ 2, 3)

33. CO Keller declared that the government never initiated any communications

with Mr. Alajmi. After learning of his allegations against Trident, Ms. Keller informed

the COR and support staff to cease all communications with Mr. Alajmi (gov’t reply,

Katherine Keller decl. ¶ 4).

34. CO Keller declared that when the government first learned of Mr. Alajmi’s

dispute with Trident, it investigated and determined that the leased vehicles in the

government’s possession were registered to Mr. Alajmi (gov’t reply, Katherine Keller

decl. ¶ 5).

35. Ms. Keller informed Trident of Mr. Alajmi’s allegations. Mr. Kuster

confirmed the dispute, and Mr. Kuster “assured that Trident would provide

replacement vehicles, if necessary, to ensure uninterrupted service in accordance with

the Contract” (gov’t reply, Katherine Keller decl. ¶ 6).

36. CO Keller declared that Trident did not further communicate with the

government concerning its dispute with Mr. Alajmi. As Trident’s representative,

Mr. Mostafa “was the individual the government would have expected to pick up the

subject vehicles in the event that Trident’s dispute with Mr. Aljami was not resolved

and Trident intended to provide replacement vehicles to ensure uninterrupted services

for the remainder of the performance period.” (Gov’t reply, Katherine Keller decl. ¶ 7)

Trident’s Notice of Appeals, and Board’s Notices of Docketing

37. Trident appealed the Termination for Cause on April 19, 2016, which was

docketed as ASBCA No. 60541 on April 20, 2016, and later on August 12, 2019,

Trident appealed the CO’s May 16, 2019 decision denying the claim for damages,

which was docketed as ASBCA No. 62144 on August 13, 2019. Thereafter, the Board

granted the parties’ motion to consolidate the appeals on September 17, 2019.

12

Relevant Contract Clauses and Performance Work Statement (PWS)

38. Included in the Contract’s Special Contract Requirements section was the

language: “Sponsorship. The Contractor shall obtain local sponsorship as required for

all personnel for the purpose of providing in-country legal representation, work visas

and resolution of other personal business or domestic matters, in compliance with host

nation labor laws” (R4, tab 1 at 21).

39. The contract states that services shall be performed in accordance with the

Performance Work Statement (PWS) (R4, tab 1 at 3, 30).

40. The contract incorporated by reference FAR 52.212-4, CONTRACT TERMS

AND CONDITIONS – COMMERCIAL ITEMS (JULY 2013), which reads in part:

...

(f) Excusable delays. The Contractor shall be liable for

default unless nonperformance is caused by an occurrence

beyond the reasonable control of the Contractor and

without its fault or negligence such as, acts of God or the

public enemy, acts of the Government in either its

sovereign or contractual capacity, fires, floods, epidemics,

quarantine restrictions, strikes, unusually severe weather,

and delays of common carriers. The Contractor shall

notify the Contracting Officer in writing as soon as it is

reasonably possible after the commencement of any

excusable delay, setting forth the full particulars in

connection therewith, shall remedy such occurrence with

all reasonable dispatch, and shall promptly give written

notice to the Contracting Officer of the cessation of such

occurrence.

...

(m) 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 Contractor shall be liable to the

13

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.

(R4, tab 1 at 25); FAR 52.212-4, CONTRACT TERMS AND CONDITIONS –

COMMERCIAL ITEMS (JULY 2013)

41. The contract also contained the provision “1.0 GENERAL

INFORMATION,” which reads:

Description of Services/Introduction: The contractor shall

provide all equipment, tools, materials, supervision, and

other items and non-personal services necessary to

maintain the vehicular leasing and maintenance

requirements as defined in this Performance Work

Statement (PWS). The contractor shall perform to the

standards listed in this contract.

(R4, tab 1 at 31)

42. Trident identified Tony Kuster and John Zvarick as Contract Managers.

Trident did not designate any other Contract Managers internally, or identify any other

Contract Managers to the CO or COR. The PWS provides:

1.12 Contract Manager:

The Contractor shall provide a Contract Manager who

shall be responsible for the performance of the work. The

name of this person and an alternate who shall act for the

contractor when the manager is absent shall be designated

in writing to the contracting officer within 24hrs of

contract award. The contract manager or alternate shall

speak, read and write English and have full authority to act

for the contractor on all contract matters relating to daily

operation of this contract. The Manager shall be the

central point of contact with the COR and Contracting

Officer for performance of all work under the contract.

1.13 Personnel:

1.13.1 The contractor shall advise the COR immediately of

any changes in personnel. “Immediately” for the purpose

14

of this notification shall mean: The beginning of the next

regular business day.

(R4, tab 1 at 33)

PERFORMANCE WORK STATEMENT (PWS)

43. The Badging section states all contractor personnel who have access to

U.S. military installations shall be cleared and badged and that “[t]he contractor will

be responsible for control and accountability of personnel brought on to U.S. military

installations” (R4, tab 1 at 32, PWS ¶¶ 1.8.6, 1.8.7).

44. PWS Part 4.0 describes the contractor-furnished property, equipment, and

services:

4.1 The Contractor shall provide specified vehicles and all

services required to keep the vehicles in a safe, operational

manner.

4.2 The Contractor shall provide a list of those services

based upon vehicles ordered per task order.

4.3 The contractor shall deliver vehicles within the

timeframe agreed to in this contract and must meet the

minimum acceptance criteria provided herein. If the

Contracting Officer determines that any vehicle furnished

is not in compliance with this contract, the Contracting

Officer shall promptly inform the contractor. If the

contractor fails to replace the vehicle or correct the defects

as required by the Contracting Officer, the U.S.

Government may:

(a) Charge or off-set against the contractor any excess

costs occasioned thereby

(b) Terminate the contract under the Default clause of this

contract. Failure to pass the acceptance inspection in the

timeframe specified may result in consideration for a

monetary penalty.

(R4, tab 1 at 36)

45. PWS ¶ 4.6 Joint Inspection reads:

15

The Contractor or the Contractor’s Representative and the

Contracting Officers Representative (COR) shall perform a

joint inspection and shall document in writing the vehicle

condition upon delivery and return of the vehicles. This

will be the sole validating document used when returning

the vehicles to the contractor. The following minimum

criteria shall be met at the time of acceptance inspection.

The Government shall accept or reject vehicles promptly

after joint inspection. All assets under contract will be

delivered to the Contracting Officer Representative or

designated representative for an Acceptance Inspection.

Any item delivered that does not meet the outlined

requirements in this Statement of Work will be deemed

“Rejected” and reported to the Contracting Officer in

writing. This shall be annotated on the Acceptance

Inspection sheet.

4.6.1 The Government will not be responsible for any

damage or missing items not documented on the inspection

checklist or for fair wear and tear. The Contractor and

Government Contract Representative shall sign the

inspection document. A joint inspection will be

documented on a Transportation Department Leased

Vehicle Inspection Check List. If the contractor fails to

conduct a joint inspection or overlooks an item while

conducting a joint inspection with a government

representative the contractor will be held liable for all

damage that was not identified at the time of inspection.

4.6.2 The vehicles that are modified will be according to

the NTSB standards. Vehicles that are not with (sic) the

standards shall be rejected. The vendor, at no cost to the

government, shall replace unacceptable vehicles within 24

hours.

(R4, tab 1 at 36-37)

46. PWS ¶¶ 4.9, 5.3, and 5.13 describe that “the Contractor may replace the

vehicle at any time with an equal or higher quality vehicle” unscheduled or scheduled

service (R4, tab 1 at 39-41).

47. PWS ¶ 10.0 Liability and Insurance contains the following:

16

The U.S. Government shall not be responsible for loss of

or damage to, leased vehicles resulting from (1) normal

wear and tear, or (2) negligence of the Contractor, its

agents, or employees. The Contractor shall be liable for,

and shall indemnify and hold harmless the U.S.

Government against, all actions or claims for loss of or

damage to property or the injury or death of persons,

resulting from the fault, negligence, or wrongful act or

omission of the Contractor, its agents or employees. The

Contractor shall provide and maintain insurance covering

its liabilities in amounts that are in accordance with Host

Nation Law for requirements concerning the amount liable

per person, amount per occurrence for death or bodily

injury, and amount for property damage or loss.

(R4, tab 1 at 43)

DECISION

I. Summary Judgement Standard of Review and The Parties’ Positions

A. Summary Judgment Standard of Review

Summary judgment will be granted if the movant shows that there is no genuine

dispute as to any material fact, and the movant is entitled to judgment as a matter of

law. FED. R. CIV. P. 56(a). A material fact is one which may make a difference in the

outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

There is a “genuine” dispute as to such a fact “if the evidence is such that a reasonable

[fact-finder] could return a verdict for the nonmoving party” (id. at 242). Once the

moving party has met its burden of establishing the absence of disputed material facts,

then the non-moving party must set forth specific facts, not conclusory statements or

bare assertions, to defeat the motion. Pure Gold, Inc. v. Syntax (U.S.A.), Inc., 739 F.2d

624, 626-27 (Fed. Cir. 1984).

In evaluating the parties’ contentions, we are guided by the familiar rule that

“[t]he fact that both parties have moved for summary judgment does not mean that the

[Board] must grant judgment as a matter of law for one side or the other; summary

judgment in favor of either party is not proper if disputes remain as to material facts.”

Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987).

17

B. The Parties’ Positions

The government moves for summary judgment arguing that appellant fails to

meet its burden to show that the government breached the contract for returning the

vehicles to appellant’s representative, breached the covenant of good faith and fair

dealing, bailment, and its termination for cause was proper as Trident failed to address

the CO’s cure notice. Additionally, the government argues the CO’s negative CPARS

rating was accurate as Trident failed to provide leased vehicles as required by the

contract and that it has reimbursed appellant for any services rendered prior to removal

of the vehicles. (Gov’t mot. at 1, 19-20)

Appellant requests that we deny the government’s motion for summary

judgment and, instead, grant summary judgment in its favor (app. cross-mot. and resp.

at 1, 10-15).

We address the following seven issues: (1) breach of contract for failure to

return the leased vehicles, (2) breach of contract for communicating with a third-party

concerning contract performance, (3) breach of the implied duty of good faith and fair

dealing, (4) breach of the bailment agreement, (5) failure to pay for services

provided, (6) request to convert the termination for cause to a termination for

convenience, and (7) the CO issuing an arbitrary and capricious CPARS rating.

II. Discussion

A. Appellant Did Not First Materially Breach the Contract By Not Having An

Ownership Right in the Leased Vehicles

As the claimant, appellant bears the burden of proving an affirmative monetary

claim against the government by a preponderance of the evidence. M.A. Mortenson

Co., ASBCA No. 53062 et al., 01-2 BCA ¶ 31,573 at 155,906, and cases cited therein.

Appellant must establish liability, causation, and resultant injury. Wilner v. United

States, 24 F.3d 1397, 1401 (Fed. Cir. 1994) (en banc); see also Wunderlich

Contracting Co. v. United States, 173 Ct. Cl. 180 (1965). The elements of a breach of

contract claim are: (1) a valid contract between the parties; (2) an obligation or duty

on the part of the government arising out of the contract; (3) a breach of that duty; and

(4) damages caused by the breach. Lockheed Martin Integrated Sys., Inc., ASBCA

Nos. 59508, 59509, 17-1 BCA ¶ 36,597 at 178,284 citing San Carlos Irrigation &

Drainage Dist. v. United States, 877 F.2d 957, 959 (Fed. Cir. 1989); Military Aircraft

Parts, ASBCA No. 60009, 16-1 BCA ¶ 36,388 at 177,410; Northrop Grumman Sys.

Corp. Space Sys. Div., ASBCA No. 54774, 10-2 BCA ¶ 34,517 at 170,237). To

succeed, appellant must prove all four of the elements.

18

The government denies it breached the contract and asserts that appellant first

materially breached the contract by not having an ownership right in the vehicles,

which would excuse any subsequent breach by the government (gov’t mot. at 30, 31).

Specifically, the government argues that paragraph 1.0 of the PWS required Trident

“to provide all ‘equipment, tools, materials, supervision, and other items and non-

personal services necessary to maintain the vehicular leasing and maintenance

requirements as defined in [the] Performance Work Statement’” (id. at 30). The

government points out that the vehicles were owned and registered to a third party,

which appellant does not refute (gov’t mot. at 30-31, n.3). In the government’s reply,

it shifts its argument that the contract required Trident to have an “ownership interest”

in the leased vehicles to a “possessory interest” (gov’t reply at 38-39). “A possessory

interest is different from an ownership interest as a possessory interest ‘includes the

present right to control property, including the right to exclude others, by a person who

is not necessarily the owner’” (id. at 39). Thus, the government argues that Trident

failed to maintain a possessory interest in the leased vehicles when the vehicles were

registered to a third party, failed to pay its lenders for the leased vehicles, and to avoid

its mounting debts, provided Mr. Alajmi full power of attorney to re-sell the vehicles

(id. at 39-40). Consequently, the government argues that appellant committed a prior

material breach by providing vehicles it had no possessory interest in and thus could

not maintain the leasing and maintenance requirements per the performance work

statement (id. at 38-41). Trident argues that the contract was silent on ownership

rights and that “[t]he contract only required Trident to ‘furnish’ or ‘provide’ the

vehicles,” terms which the contract did not define (app. cross-mot. and resp. at 11).

The Federal Circuit has described the doctrine of a first material breach as

follows:

[W]hen a party to a contract is sued for breach, it may

defend on the ground that there existed a legal excuse for

its nonperformance at the time of the alleged breach.

Faced with two parties to a contract, each of whom claims

breach by the other, courts will “often...impose liability on

the party that committed the first material breach.”

Barron Bancshares, Inc. v. United States, 366 F.3d 1360, 1380 (Fed. Cir. 2004)

(citations omitted); see also Supreme Foodservice GmbH, ASBCA No. 57884 et al.,

16-1 BCA ¶ 36,387 at 177,398-99; Afghanistan Trade Transp. Co., ASBCA

No. 59782, 15-1 BCA ¶ 36,077 at 176,165.

We turn to the contract and PWS. Contract interpretation is a question of law.

Barron Bancshares, Inc., 366 F.3d at 1368; Cienega Gardens v. United States,

194 F.3d 1231, 1239 (Fed.Cir.1998)In interpreting a contract, we begin with the plain

language of the contract. See, e.g., Banknote Corp. of America, Inc. v. United States,

19

365 F.3d 1345, 1353 (Fed. Cir. 2004). An additional canon of contract interpretation

is that the contract should be read as a whole, harmonizing and giving meaning to all

provisions. ThinkQ, Inc., ASBCA No. 57732, 13 BCA ¶ 35,221 at 172,825 (citing

NVT Techs., Inc. v. United States, 370 F.3d 1153, 1159 (Fed. Cir. 2004)).

PWS clause 1.0 states that “The contractor shall provide all equipment, tools,

materials . . . to maintain the vehicular leasing and maintenance requirements as

defined in this Performance Work Statement” (SOF ¶ 41) (emphasis added). The PWS

continues to use the terms “provide” or “furnish” when describing the contractor’s

responsibilities for the leased vehicles. (SOF ¶ 44). We agree with appellant that the

contract required Trident to “provide” and “furnish” the vehicles, but the contract was

silent on the ownership or possessory interest that was required (app. cross-mot. and

resp. at 1).

Contract interpretation cases are subject to summary disposition where the

contract language is unambiguous. Muniz v. United States, 972 F.2d 1304, 1309 (Fed.

Cir. 1992); P.J. Maffei Bldg. Wrecking Corp. v. United States, 732 F.2d 913, 916 (Fed.

Cir. 1984). A contract provision is clear and unambiguous if only one reasonable

interpretation exists. C. Sanchez and Son, Inc. v. United States, 6 F.3d 1539, 1544

(Fed. Cir. 1993). The contract is unambiguous that it required Trident to “supply or

make available” the leased vehicles over the term of the contract by employing the

terms “provide” and “furnish.” The plain and unambiguous meaning of the written

agreement will control. Hercules Inc. v. United States, 292 F.3d 1378, 1380-81 (Fed.

Cir. 2002). Where the terms “provide” and “furnish” language is unambiguous and

susceptible only to one reasonable meaning, the Board’s review is limited to the plain

meaning without considering extrinsic evidence. Lebolo-Watts Constructors 01 JV,

LLC, ASBCA No. 59740 et al., 21-1 BCA ¶ 37,789 at 183,433. We conclude that the

contract did not require appellant to have an ownership interest in the leased vehicles.

In addition, the government’s possessory interest argument also falls short. The

contract employs the terms “provide” and “furnish,” not “possessory.” Accordingly,

as we hold that the contract did not require appellant to have an ownership interest in

the leased vehicles, appellant did not first materially breach the contract.

B. Breach of Contract (Communications Regarding Contract Performance)

i. The government did not breach the contract for receiving

communications from Mr. Alajmi, and appellant has failed to show that

the government coordinated with Mr. Alajmi to retrieve the leased

vehicles

Appellant asserts “that the Government fell for a scam perpetrated by

Mr. Alajmi—a con artist with no privity of contract and a fake Trident email address.

The Government asked no questions of Mr. Alajmi, but turned over Trident’s vehicles

20

to him to Trident’s detriment” (app. cross-mot. and resp. at 10). Trident argues that the

government materially breached the contract by transferring the leased vehicles to a

third party, Mr. Alajmi (id. at 11). Trident asserts that once Mr. Alajmi informed the

government that he intended to retrieve the leased vehicles on December 28, 2015, the

government did not investigate his claims and did not fully communicate this

information back to Trident (id. at 14-15). Trident stated it was blindsided that the

government allowed the leased vehicles to be retrieved by Mr. Alajmi on December 30,

2015, and, as a result, only learned of this with the cure notice (id. at 12). Additionally,

Trident argues that the government should not have intervened in the dispute between

Trident and its local sponsor, Mr. Alajmi, and by doing so, breached the contract and

caused Trident’s failure to perform (id. at 12).

If appellant can demonstrate, as it alleges, that the government coordinated the

transfer of the leased vehicles to a third party who does not have contract privity with

it, then Trident’s claims for breach of contract, bailment, and breach of the implied

duty of good faith and fair dealing would be significantly bolstered. However,

appellant’s position appears to focus on the result: Mr. Alajmi eventually was able to

retrieve the vehicles through Trident’s representative, Mr. Mostafa; thus, the

government must have been responsible and liable for Trident’s alleged damages. We

agree with the government that appellant’s allegation of breach of contract for

receiving communications from Mr. Alajmi is meritless. Appellant has not identified a

contractual obligation that the government breached nor shown how the government

“breached” a duty by the COR receiving a text message from Mr. Alajmi (SOF ¶ 8).

Furthermore, appellant has failed to show that the government coordinated the transfer

of the vehicles or that the government knew Mr. Mostafa intended to give the vehicles

to Mr. Alajmi (SOF ¶¶ 8, 10, 13, 16). Quite the opposite.

The government reasonably informed Trident of Mr. Alajmi’s claims and

requested a response regarding its future performance. After learning of Mr. Alajmi’s

claims, the CO promptly emailed Mr. Zvarick and Mr. Kuster and informed them that

Mr. Alajmi claimed to be a partner of Trident and the registered owner of the leased

vehicles but had yet to receive payment from Trident. Consequently, he wanted the

leased vehicles in Qatar returned to him. (SOF ¶ 10) In addition, the CO informed

Trident that it could be in default if leased vehicles could not be provided throughout

the entire contract term (id.). Finally, the CO requested receipt of its email and for

Trident to respond to the issues raised and its future performance no later the next day

(id.). Trident’s written response to the CO’s concerns was not of shock and dismay at

Mr. Alajmi’s claims; rather, Trident acknowledged some of Mr. Alajmi’s claims: that

he was Trident’s sponsor; that the leased vehicles are registered under his name; and

that Trident was working behind the scenes to resolve the dispute with Mr. Alajmi

(SOF ¶¶ 11, 12). In addition, Trident stated that if the leased vehicles were retrieved,

it had a plan to replace vehicles to ensure there was no service interruption under the

contract (SOF ¶ 12).

21

The government’s actions were reasonable and prompt once it learned of

Mr. Alajmi’s claims against Trident. The CO immediately emailed Trident of

Mr. Alajmi’s allegations, reminded them of their contractual obligations, and

requested a detailed response regarding its future performance.

Appellant relies heavily on email exchanges of the CO’s support staff who

received communications from Mr. Alajmi as “evidence” that the government

coordinated the transfer of vehicles to Mr. Alajmi:

From December 24, 2015 to December 30, 2015, the

Government communicated directly with Mr. Alajmi and

coordinated the transfer of the vehicles to Mr. Alajmi

without ever speaking to Trident’s Contract Managers in

total disregard for the Contract.

...

The Government knew exactly what Mr. Alajmi’s

intentions were with respect to Trident’s vehicles, but

failed to exercise ordinary care by conducting due

diligence into Mr. Alajmi’s false claims of entitlement.

From at least December 20, 2015 to December 30, 2015,

the COR was in contact with Mr. Alajmi through text

messages.

(App. cross-mot. and resp. at 14, 21)

The text messages that appellant refers to are one-sided communications from

Mr. Alajmi to the CO’s support staff (SOF ¶¶ 14-15, 17). In addition, the CO instructed

her support staff to refrain from communicating with Mr. Alajmi. The CO emailed

Mr. Alajmi stating that the government could not provide him any information or

assistance since the government lacks privity of contract with him (SOF ¶¶ 15-16, 33).

Appellant has failed to cite any evidence in the record that the government

communicated or coordinated with Mr. Alajmi regarding the transfer of the lease

vehicles. The government’s actions were prudent and reasonable under the

circumstances. Appellant has failed to carry its burden of element (3) to show how the

government breached a contractual duty. Lockheed Martin Integrated Sys., Inc., 17-1

BCA ¶ 36,597 at 178,284. Accordingly, the government’s motion for summary

judgment on this issue is granted, and appellant’s cross-motion for summary judgment

on this issue is denied.

22

C. Breach of Contract (Failure to Return the Vehicles)

We now turn to whether the government breached the contract by allowing

Trident’s representative, Mr. Mostafa, to retrieve the leased vehicles on December 30,

2015. A breach of contract is simply the non-performance of a contractual duty.

Kasarsky v. Merit Sys. Prot. Bd., 296 F.3d 1331, 1336 (Fed. Cir. 2002). The

government argues that it did nothing more than wait to see what transpired between

Trident and its sponsor regarding Mr. Alajmi’s claims (gov’t mot. at 26; gov’t reply

at 23; SOF ¶¶ 13, 36). Appellant alleges that “the Government fell for a scam

perpetrated by Mr. Alajmi,” “the Government failed to conduct any sort of inquiry

into the validity of Mr. Alajmi’s claims (that were fraudulent)” and that the

“Government asked no questions of Mr. Alajmi but turned over Trident’s vehicles to

him” (app. cross-mot. and resp. at 10, 14). Now, we turn to the issue of how the

leased vehicles were removed from the Qatar base, Camp As Sayliyah.

i. Appellant has failed to demonstrate how the government violated Qatari

law and regulations

Appellant alleges that the “Government gave away the vehicles to an unknown

third party without a shred of legal entitlement to the vehicles under Qatari law or with

any repossession rights under Qatari law” (app. cross-mot. and resp. at 12). Though

our rules empower us to attempt to determine foreign law, we are not obligated to do

so. Agility Logistics Servs. Co. KSC, ASBCA No. 57415 et al., 17-1 BCA ¶ 36,658

at 178,518; Weigel Hochdrucktechnik GmbH & Co. KG, ASBCA No. 57207, 12-1

BCA ¶ 34,975 at 171,924. Instead, we may require the party relying upon foreign law

to demonstrate its application in a particular matter. Sungwoo E&C Co., ASBCA

No. 61144 et al., 22-1 BCA ¶ 38,125 at 185,208; Agility Logistics Servs. Co. KSC,

17-1 BCA ¶ 36,658 at 178,518. Foreign laws can be demonstrated through written or

oral expert testimony and extracts from foreign legal materials. Rosinka Joint Venture,

ASBCA No. 48143, 97-1 BCA ¶ 28,653 at 143,139. Given that appellant is asserting

the government breached the contract and gave away the vehicles to a third party

without legal rights under Qatari law, it is appellant’s burden to show how “an

unknown third party,” Mr. Alajmi, and the government violated repossession rights

under Qatari law. Appellant seems uncertain in the application of Qatari law on the

issue of the retrieval of the leased vehicles, later equivocating whether the government

“likely violate[d] Qatari law” (app. cross-mot. and resp. at 14). Appellant has not cited

any Qatari law, statute, or case law for its proposition. Accordingly, appellant has not

shown who, if anyone, under Qatari law violated its rights in the leased vehicles

retrieved by Mr. Mostafa. The Board lacks sufficient expertise to answer that question

on its own. See Agility Logistics Servs. Co. KSC, 17-1 BCA ¶ 36,658 at 178,518;

Weigel Hochdrucktechnik Gmbh & Co. KG, 12-1 BCA ¶ 34,975 at 171,924.

23

ii. The government did not breach the contract by allowing Trident’s

representative, Mr. Mostafa, to retrieve the leased vehicles

Next, appellant argues that the government violated the vehicle return

conditions outlined in the contract and thus breached the contract and is liable for the

leased vehicles being indirectly transferred to Mr. Alajmi (amended compl. dtd.

September 30, 2020, ¶¶ 13, 14; app. cross-mot. and resp. at 2-3, 13, 24-25). Appellant

argues only Trident’s Contract Manager, Mr. Kuster, or his alternate, Mr. Zvarick,

were allowed to sign off for the return of the vehicles, citing contract paragraph 4.6.1

(app. cross-mot. and resp. at 13). “When the Government gave Trident’s vehicles to

Mr. Alajmi without the involvement of Trident’s Contract Managers, the Government

knew it was working beyond its contractual limits and without Trident’s knowledge or

consent, thereby changing the Contract and breaching paragraph 4.6.1 of the Contract”

(id. at 18). Appellant argues that the retrieval of the leased vehicles by Mr. Alajmi

through Trident’s agent, Mr. Mostafa, was through the government’s coordination with

both Mr. Alajmi and Mr. Mostafa, “Mr. Mustafa was there at the Army’s request after

the Army unilaterally coordinated with Mr. Alajmi without Trident’s knowledge or

consent. Mr. Mustafa was merely a ‘vehicle’ that transferred the vehicles to

Mr. Alajmi as the Army knew Mr. Mustafa had base access, whereas Mr. Alajmi did

not.” (Id. at 15)

Trident’s financial issues with a third party placed the government in a difficult

position. As a result, Trident asks us to find that the government breached its contract

when it allowed Trident’s Qatar representative, Mr. Mostafa, to sign the vehicle

inspection reports and to retrieve the vehicles from Camp As Sayliyah. What was the

government supposed to do in this situation? Not allow Trident’s only representative

who had authorized access to Camp As Sayliyah to perform vehicle inspections,

document inspection reports, and retrieve the vehicles (as permitted under the

contract)? Trident’s position is not legally tenable.

Reliance Upon the PWS

Appellant’s argument that only its Contract Manager, Mr. Kuster, or his

alternate, Mr. Zvarick, were allowed to sign off for vehicle returns. Appellant’s

reliance on PWS “paragraph 4.6.1’s requirement that the Contract Manager sign off on

vehicle returns,” and Mr. Mostafa signing the joint inspection sheets on December 30,

2015, resulted in the government changing the contract without Trident’s agreement is

misplaced (id. at 13). The PWS is clear that the “contractor or contractor’s

representative” can perform the joint vehicle inspection (SOF ¶ 45). Mr. Mostafa was

Trident’s “representative” having entry access to Camp As Sayliyah and performed

vehicle retrieval and inspection duties consistent with his previous duties on the

contract. Accordingly, we decline to adopt appellant’s narrow interpretation of PWS

paragraphs 4.6 and 4.6.1.

24

In addition, the contract is clear that Trident indemnified the government for the

wrongful actions of its representatives:

The U.S. Government shall not be responsible for loss of

or damage to, leased vehicles resulting from (1) normal

wear and tear, or (2) negligence of the Contractor, its

agents, or employees. The Contractor shall be liable for,

and shall indemnify and hold harmless the U.S.

Government against, all actions . . . resulting from the

fault, negligence, or wrongful act or omission of the

Contractor, its agents or employees.

(SOF ¶ 47) (emphasis added)

By its very terms, PWS ¶ 10.0 Liability and Insurance clause covers the type of

“loss”: the “wrongful act” of Trident’s representative who coordinated with a third

party to remove the leased vehicles from Camp As Sayliyah. The U.S. government

cannot be held liable for the wrongful acts of the contractor’s representatives. The

plain language of the clause and case law support this conclusion. See also Kellogg

Brown & Root Servs., Inc., ASBCA Nos. 59357, 59358, 15-1 BCA ¶ 36,071

at 176,144 (The Board interpreting a clause stating, “‘caused by willful misconduct or

lack of good faith’ of the contractor.”; the Board read the indemnification clause

consistent the with its plain terms); Tokai Transp. Co., ASBCA No. 5063, 60-2 BCA

¶ 2,666 at 13,309 (Liability clause reading, “The Contractor shall be liable to, and shall

indemnify, the Government for any and all losses . . . when such loss or damage is

caused in whole or in part by the wrongful act or omissions, or negligence of the

Contractor, its agents, servants, or employees. . . .” The Board concluding that “under

the terms of the contract it became the clear responsibility of the appellant to protect

the Government from loss of the cargo by any wrongful act by agents or employees

and to indemnify the Government for such loss.” (id. at 13,309).

Mr. Mostafa had at least Apparent Authority to Retrieve the Vehicles

Trident states that Mr. Mostafa “was a mere valet who moved vehicles from

place A to place B” and lacked “actual nor apparent authority to transfer Trident’s

vehicles to Mr. Alajmi” (app. cross-mot. and resp. at 16). “For Mr. Mustafa to have

actual authority to dispose of the vehicles would have required Trident to manifest its

intent to delegate such authority” (id.). Trident argues that the government did not

have a reasonable belief that Mr. Mostafa had apparent authority to take the vehicles

and give them to Mr. Alajmi, citing RESTATEMENT (THIRD) OF AGENCY § 3.01

(“Creation of Actual Authority”); United States v. Great Am. Ins. Co. of New York,

738 F.3d 1320, 1333-36 (Fed. Cir. 2013). Trident argues that “[t]he third party’s belief

cannot be based only on the agent’s actions or conduct” citing U.S. v. Ziegler Bolt &

25

Parts Co., 111 F.3d 878, 881-82 (Fed. Cir. 1997). (App. cross-mot. and resp. at 16).

Trident points to the government’s reliance on Mr. Mostafa’s prior vehicle transfers

“[i]n an attempt to justify its unauthorized actions . . . . [h]owever, prior transfers were

routine involving vehicles being exchanged for service and not involving final

inspection or otherwise removing the vehicles from the Contract” (id. at 17). Trident

argues that it should not be held accountable for the leased vehicles transferred to

Mr. Alajmi through Mr. Mostafa since the government knew of Mr. Alajmi’s

intentions, the government should have communicated this information to Trident.

We note that the doctrine of apparent authority, although not applicable to the

government, can be applied to contractors. Peter Bauwens Bauunternehmung GmbH

& Co. KG, ASBCA No. 44679, 98-1 BCA ¶ 29,551 at 146,497, aff’d, 194 F.3d 1338

(Fed. Cir. 1999). Apparent authority is determined by looking at the conduct of the

principal to assess whether the principal created a reasonable belief that the actor was

authorized by the principal in the manner relied on. Am. Anchor & Chain Corp. v.

United States, 331 F.2d 860, 861 (Ct. Cl. 1964) (Apparent authority may be “created

by written or spoken words or other conduct of the principal which, if reasonably

interpreted, causes a third person to believe that the principal consents to have the act

done on his behalf by the person purporting to act for him.”).

Trident argues that there can be no exercise of apparent authority if the principal

does not somehow convey its consent for the signing of the vehicle inspection reports

and that it cannot do so if it is unaware of Mr. Mostafa’s activity (app. cross-mot. and

resp. at 17). However, the principal need not be conscious of every action by the

person acting with apparent authority to convey his consent for it; rather, it is enough

that the principal acquiesces in actions that imply that the actor possessed the level of

authority necessary to bind the company in the way he undertook to. Horton Constr.

Co., ASBCA No. 61085, 20-1 BCA ¶ 37,622 at 182,651-52 (The Board finding

apparent authority even when the “government never demonstrated that [employee]

had ever signed a final release before, supposedly refuting his apparent authority to do

so, is similarly misguided. . . . [Employee] presented as having apparent authority to

do all things related to the contract’s administration without reservation. Nothing

about his behavior or appellant’s acquiescence gave the government cause to doubt

that his authority should not extend to executing the final release.”) Compare Seven

Seas Shipchandlers, LLC, ASBCA No. 57875 et al., 15-1 BCA ¶ 35,908 at 175,530-31

(In a dispute dealing with government payment in Afghan cash to contractor’s

employee, intended as payment on contractor’s contracts, but employee disappeared

with the money. The Board found no apparent authority when there was no evidence

that anyone in the government formed a belief that employee possessed the authority

to collect cash for contractor. The CO was silent about his perception of employee’s

authority, at least another government official knew that employee was not among

those authorized to accept cash for contractor, and government was not aware

26

employee had performed cash collection in the past, and employee had forged

contractor’s signatures on payment vouchers.)

Through Trident’s actions, this authority to perform joint vehicle inspections,

sign the joint inspection reports, and retrieve the vehicles, was delegated to its Qatar

representative, Mr. Mostafa. Trident’s contract managers did not obtain badges to

access Camp As Sayliyah. They did not have any of its contract managers present in

Qatar to conduct the joint inspections under the Contract. Mr. Mostafa was Trident’s

only Qatar representative (SOF ¶¶ 6, 18). The PWS is clear that a “contractor’s

representative” can perform the joint inspection and “document in writing the vehicle

condition upon . . . return of the vehicles.” The nature of the contract required Trident

to access Camp As Sayliyah to deliver vehicles and retrieve vehicles for regular

maintenance. (SOF ¶¶ 1, 44-46) Trident was allowed to retrieve and replace vehicles

“at any time” to conduct scheduled/unscheduled maintenance (SOF ¶ 46). Trident

elected Mr. Mostafa as its Qatar representative and submitted his information for base

access. Once Mr. Mostafa’s background check was completed, he was provided a base

access badge to enter the base. (SOF ¶¶ 18, 32) As Trident’s representative,

Mr. Mostafa’s role at Camp As Sayliyah included dropping off and retrieving vehicles,

vehicle maintenance, vehicle registration, invoicing, addressing issues from traffic

accidents and traffic fines, and coordinating requests for equitable adjustment (SOF

¶ 32). Appellant has taken various positions in the role of its representative,

Mr. Mostafa, during this dispute. The cited record and appellant’s admissions in its

March 1, 2019, claim do not support appellant’s purported role for Mr. Mostafa

asserted in its cross-motion that Mr. Mostafa was a “mere valet” who had no authority

as its representative (app. cross-mot. and resp. at 16-17). Appellant’s March 1, 2019,

claim admits that Mr. Mostafa’s role as its Qatar representative included “picking-up /

dropping-off serviced vehicles during the Contract’s performance” (gov’t mot., ex. G-2

at 2).

Mr. Mostafa’s actions of performing a joint inspection and documenting the

vehicles’ condition on December 30, 2015, were consistent with his previous duties as

Trident’s representative under the contract. See also (SOF ¶¶ 6, 7); Horton Constr.

Co., 20-1 BCA ¶ 37,622. Trident’s actions established apparent authority of

Mr. Mostafa to sign vehicle inspection reports by not obtaining access to Camp

As Sayliyah for its contract managers. In addition, its contract managers were not

badged to enter Camp As Sayliyah and located thousands of miles from Qatar (see

SOF ¶ 12). We are guided by Trident’s actions and its utilization of its representative,

Mr. Mostafa, throughout contract performance. See Info. Sys. & Networks Corp., 148

Fed. Cl. at 368–69 (“If the principal places a person in a position or office with

specific functions or responsibilities, from which third parties will infer that the

principal assents to acts by the person requisite to fulfilling the specific functions or

responsibilities, the principal has manifested such assent to third parties.”); Great Am.

Ins. Co. of New York, 738 F.3d at 1335 (“[T]he pattern of agents exceeding their

27

authority with no objection from [the company] would lead a reasonable person in the

government’s position to believe that such acts were authorized.”).

The Adverse Interest Exception Does Not Apply Since Appellant Benefited from

Mr. Mostafa’s Actions

Appellant cites Long Island Sav. Bank, FSB v. United States, 503 F.3d 1234,

1249 (Fed. Cir. 2007) for the proposition that “[a] principal is not affected by the

knowledge of an agent in a transaction in which the agent secretly is acting adversely

to the principal and entirely for his own or another’s purposes” (app. cross-mot. and

resp. at 17). Thus, Trident argues that Mr. Mostafa’s actions as Trident’s

representative of retrieving the vehicles on December 30, 2015, and subsequently

transferring them to Mr. Alajmi, cannot be attributed to it (id.).

The mere fact that the agent’s primary interests are not coincident with those of

the principal, however, is insufficient to invoke the adverse interest exception. Long

Island Sav. Bank, 503 F.3d at 1250. In Long Island, the agent served as a bank’s CEO

and a senior member of a law firm specializing in banking and mortgages. In violation

of banking law, the bank’s CEO funneled legal work associated with mortgage

closings to his law firm. The bank’s CEO derived financial benefits from legal fees

generated as he was also a partner with the law firm performing the legal services.

The court found that the record failed to show that the bank’s CEO entirely abandoned

the bank’s interests for his own. The court found the adverse interest exception did not

apply to the principal, the bank, as it would have needed to pay for outside counsel for

representation in foreclosure proceedings and derived a benefit of competent legal

assistance associated with mortgage closing services on behalf of the bank. Long

Island Sav. Bank, 503 F.3d at 1250.

Even if Long Island applied, Mr. Mostafa’s retrieval of the leased vehicles on

behalf of Mr. Alajmi was not “entirely” in his interests without even incidental benefit

to the principal, Trident. The cracks in the financial relationship between Trident and

its Qatar sponsor, Mr. Alajmi, appeared early on during contract performance with

Mr. Kuster threatening to pull the leased vehicles from the government, “[i]f we want

to pull our vehicles from the contract due to Ajmi [sic] situation, I need to work that

out” (gov’t mot., ex. G-5 at 00000058). Moreover, after Mr. Mostafa retrieved the

vehicles, Mr. Zvarick emailed Mr. Alajmi stated that he had given him “full power of

attorney” and that he should “make every effort to sell the vehicles as soon as

possible” “to settle as much of the debt as possible” (SOF ¶¶ 9, 21). Thus, the retrieval

of the leased vehicles by Trident’s representative benefited Trident in paying down its

mounting debts for failure to pay the vehicles’ leases. See Long Island Sav. Bank, 503

F.3d at1250; Kellogg Brown & Root Servs., Inc. v. United States, 728 F.3d 1348, 1370

(Fed. Cir. 2013) (principal received the benefit of subcontractor’s services, although

28

the principal’s agents were receiving kickbacks from the subcontractor). Accordingly,

the adverse interest exception cited by appellant does not apply.

Trident Ratified Mr. Mostafa’s Actions

Ratification is the affirmance by a person of a prior act supposedly done on his

behalf by another, but which was not authorized. Northrop Grumman Sys. Corp.

Space Sys. Div., 10-2 BCA ¶ 34,517 at 170,238. “Ratification requires knowledge of

material facts involving the unauthorized act and approval of the activity by one with

authority.” Winter v. Cath-dr/Balti Joint Venture, 497 F.3d 1339, 1347 (Fed. Cir.

2007) (citing Harbert/Lummus Agrifuels Projects v. United States, 142 F.3d 1429,

1433-34 (Fed. Cir. 1998)). The essence of ratification is that the prior unauthorized

act is treated as if it had been authorized by the “principal” at the outset. See

RESTATEMENT (THIRD) OF Agency §§ 4.01, 4.02 (2006).

Mr. Zvarick’s January 7, 2016, email ratified the actions of Trident’s

representative, Mr. Mostafa, who retrieved the vehicles from Camp As Sayliyah.

Mr. Zvarick was aware by the cure notice that the five leased vehicles were retrieved

by Mr. Mostafa on December 30, 2015 and had yet to be replaced. The next day,

Mr. Zvarick emailed Mr. Alajmi on January 7, 2016, to “make every effort to sell the

vehicles as soon as possible” (SOF ¶ 21). The combination of the January 6 cure

notice and Mr. Zvarick’s January 7 email shows Trident knew Mr. Mostafa removed

the leased vehicles from Camp As Sayliyah; and Mr. Zvarick, after the fact, approved

his actions by encouraging Mr. Alajmi to sell the vehicles to recoup his financial losses

(SOF ¶¶ 20-21). Ratification is all or nothing. A principal cannot ratify only the

beneficial parts of an agent’s conduct while refusing to affirm the rest. RESTATEMENT

(THIRD) OF AGENCY § 4.07 (2006). “Ratification is effective even when the third party

knew that the agent lacked authority to bind the principal but nonetheless dealt with

the agent” (id. at § 4.01 cmt. b). Accordingly, Mr. Zvarick’s January 7 email to

Mr. Alajmi was a ratification that retroactively created the effects of actual authority

for Mr. Mostafa’s actions to remove the leased vehicles from Camp As Sayliyah on

December 30, 2015. 8 RESTATEMENT (THIRD) OF AGENCY §§ 4.01, 4.02 (2006).

Once the fact of Trident’s non-delivery is established, the burden is on the

appellant to show that its failure to perform was beyond its control and without its

8

A principal can be held “accountable under an unauthorized agreement if the

principal knowingly receives or retains the benefits of the agreement, even if

the principal expresses disapproval of such agreement or some portion thereof.

(‘A person may not, by ratifying an act, obtain its economic benefits without

bearing the legal consequences that accompany the act.’).” Weeks v. United

States, 144 Fed. Cl. 34, 50 (2019) (citing RESTATEMENT (THIRD) OF AGENCY §

4.07 cmt. b) (internal citations omitted)).

29

fault or negligence. DCX, Inc. v. Perry, 79 F.3d 132, 134 (Fed. Cir. 1996), cert.

denied, 519 U.S. 992 (1996); Double B Enters., Inc., ASBCA Nos. 52010, 52192, 01-1

BCA ¶ 31,396 at 155,110. Trident has failed to show that its non-delivery or returning

leased vehicles to Camp As Sayliyah was excusable.

We hold that the government did not breach the contract for failure to return the

vehicles as 1) PWS paragraphs ¶ 4.6 and ¶ 4.6.1 allowed the joint vehicle inspection

and signing document reports by the “contractor or the contractor’s representative”; 2)

PWS paragraph ¶ 10.0 indemnifies the government for actions of the contractor or its

employees; 3) Mr. Mostafa had apparent authority to perform joint vehicle inspections,

sign the inspection reports, and remove the vehicles from Camp As Sayliyah based on

past contract performance; 4) the adverse interest exception does not apply since

Trident benefited from its encouragement of Mr. Alajmi to sell the vehicles to recoup

any financial losses for its failure to pay the leases; and, 5) Trident ratified

Mr. Mostafa’s actions. Accordingly, appellant has failed to carry its burden of element

(3) to show how the government breached a contractual duty. Lockheed Martin

Integrated Sys., Inc., 17-1 BCA ¶ 36,597 at 178,284. The government’s motion for

summary judgment on this issue is granted, and appellant’s cross-motion for summary

judgment on this issue is denied.

D. Breach of Bailment Agreement

When the government rents property from a contractor, a bailment for the

parties’ mutual benefit is created. Mohammad Darwish Ghabban Est., ASBCA

No. 51994, 00-2 BCA ¶ 31,114 at 153,671; Analog Precision, Inc., ASBCA

Nos. 31277, 32877, 87-2 BCA ¶ 19,804 at 100,170; Innovations Hawaii, ASBCA

Nos. 30619, 30627, 87-1 BCA ¶ 19,376 at 97,967. Returning bailed property in a state

unfit for service may give rise to a claim for damages. Mohammad Darwish, 00-2

BCA ¶ 31,114 at 153,671-72; Manufactured Hous. Servs., Inc., ASBCA No. 41269 et

al., 92-3 BCA ¶ 25,159 at 125,407.

Appellant argues that Trident leased the vehicles to the government, and the

government did not exercise reasonable and ordinary care when it “voluntarily

transferred the vehicles to a third party, Mr. Alajmi, knowing that Mr. Alajmi intended

to deprive Trident of those vehicles” (amended compl. dtd. September 30, 2020 at 12;

see also app. cross-mot. and resp. at 25).

The law imposes upon the bailee the duty to protect the property by exercising

ordinary care and, on the termination of a bailment, to redeliver the identical thing

bailed in substantially the same condition, ordinary wear and tear excepted, or account

for it in accordance with the contract. Mohammad Darwish Ghabban Est., 00-2 BCA

¶ 31,114 at 153,671-72. Where there is a written contract, the rights and obligations of

the parties are determined by the contract’s provisions. The bailee by express

30

agreement or by fair implication in the contract can assume the risk of loss of the

bailed item without regard to fault. Sun Printing & Publ’g Ass’n v. Moore, 183

U.S. 642 (1902); H.N. Bailey & Assocs., ASBCA No. 29298, 87-2 BCA ¶ 19,763

at 100,004, aff’d on reconsid., 88-3 BCA ¶ 21,005.

The record does not support appellant’s allegations that “the COR plotted with

Mr. Alajmi to take the vehicles off Contract to Trident’s detriment” (app. cross-mot.

and resp. at 13). The government followed the procedures for joint inspection outlined

in the PWS ¶ 4.6 (SOF ¶ 45). The government exercised ordinary care in protecting

Trident’s leased vehicles and redelivered the leased vehicles to Trident’s

representative, Mr. Mostafa. Mr. Mostafa was the only Trident representative with

base access at Camp As Sayliyah. As Trident’s Qatar representative, Mr. Mostafa

delivered vehicles to Camp As Sayliyah, performed vehicle maintenance, invoiced,

and picked up vehicles. Appellant has failed to show that the government coordinated

with Mr. Alajmi the transfer of the leased vehicles or that the government knew that

Mr. Alajmi would use Mr. Mostafa as a proxy to obtain the vehicles. In addition,

Trident had assured the CO that it “has taken measures to provide replacement

vehicles in the event he [Mr. Alajmi] continues on this path,” a reassurance which the

CO relied on (SOF ¶¶ 12-13).

The government’s motion for summary judgment on this issue is granted, and

appellant’s cross-motion for summary judgment on this issue is denied.

E. Breach Of Implied Duty Of Good Faith And Fair Dealing

Appellant argues that the government “had a duty not to interfere with Trident’s

performance and not to take any action that could destroy Trident’s reasonable

expectations regarding the benefits of the Contract.” Specifically, Trident argues that

the government voluntarily transferred the vehicles to a third party, Mr. Alajmi. The

government did so without Trident’s approval and knew Mr. Alajmi intended to

deprive Trident of the vehicles. (Amended compl. dtd. September 30, 2020 at 13)

“[E]very contract imposes upon each party a duty of good faith and fair dealing

in its performance and enforcement.” RESTATEMENT (SECOND) OF CONTRACTS § 205

(1981), quoted in Alabama v. North Carolina, 560 U.S. 330, 351 (2010). To

determine whether there has been a breach of the implied duty of good faith and fair

dealing, there is a focus on whether a party has acted in accordance with the purpose

of the contract, has interfered with the other party’s performance, or acted in such a

way as to destroy the other party’s reasonable expectations as to the fruits of the

contract. Metcalf Constr. Co. v. United States, 742 F.3d 984, 991 (Fed. Cir. 2014);

ECC Int’l, LLC, ASBCA No. 58993 et al., 22-1 BCA 38,073 at 184,894. Failure to

fulfill that duty constitutes a breach of contract, as does failure to fulfill a duty

“imposed by a promise stated in the agreement.” RESTATEMENT (SECOND) OF

31

CONTRACTS § 235 (1981); Metcalf Constr. Co., 742 F.3d at 990. The courts have long

applied those principles to contracts with the federal government. E.g., Precision Pine

& Timber, Inc. v. United States, 596 F.3d 817, 828 (Fed. Cir. 2010); Malone v. United

States, 849 F.2d 1441, 1445–46 (Fed. Cir. 1988). The “implied duty of good faith and

fair dealing cannot expand a party’s contractual duties beyond those in the express

contract or create duties inconsistent with the contract’s provisions.” E.g., Precision

Pine & Timber, Inc., 596 F.3d at 831. Although, in one sense, any “implied” duty

“expands” the “express” duties, our formulation means simply that an act will not be

found to violate the duty (which is implicit in the contract) if such a finding would be

at odds with the terms of the original bargain, whether by altering the contract’s

discernible allocation of risks and benefits or by conflicting with a contract provision.

Metcalf Constr. Co., 742 F.3d at 991.

As discussed at length above, appellant has:

1. Failed to show that the government transferred the leased vehicles to a third

party and,

2. Failed to show that the government did not follow the joint inspection and

documentation procedures in PWS ¶ 4.6, and,

3. Failed to show the government knew that Trident’s representative,

Mr. Mostafa, intended to transfer the vehicles to Mr. Alajmi.

Because the government had a reasonable expectation that Trident’s Qatar

representative, Mr. Mostafa, performed duties consistent with his performance during

the contract period, the government (i) acted in accordance with the purpose of the

contract in performing the vehicle inspections and signing the reports with Mr. Mostafa,

(ii) the government did not interfere with Trident’s performance for releasing the

leased vehicles to Trident’s representative, Mr. Mostafa, and (iii) the government did

not destroy Trident’s reasonable expectations as to the fruits of the contract.

The government’s motion for summary judgment on this issue is granted, and

appellant’s cross-motion for summary judgment on this issue is denied.

F. Invoices For Services Provided Before the Transfer of Vehicles

i. Appellant did not abandon its claim in the amount of $27,510.99 for costs

associated with past-due leasing, maintenance, and traffic violations

The government argues that the CO had concluded that “it already paid the

$27,510.99” invoices and “provided proof of payment” in the COFD, and “appellant

has not provided any evidence countering the government’s showing payment of the

32

claimed invoices.” Therefore, the government argues that appellant has “abandoned”

this portion of its claim, and as “appellant has not disputed the government’s proof of

payment, the claim should be denied” (gov’t mot. at 16, n.2).

Appellant’s amended complaint requested that “the Government pay Trident for

all invoices due under the Contract” in the amount of $27,510.99 for costs associated

with past due leasing, maintenance, and traffic violations for invoices under Task

Orders 006-008 (amended compl. dtd. September 30, 2020, at 15). Accordingly, we

conclude that appellant did not abandon this portion of its claim.

ii. Material facts are in dispute concerning the alleged non-payment for

services provided before the transfer of vehicles

The invoiced documents to which the government refers do not show

“payment” for all three task orders. For Task Order 0006, for example, the

government refers to 10 invoices that the payment official has noted are “blocked for

payment” or the traffic violations and tolls CLINs were excluded and not billed (SOF

¶ 28: “blocked for payment” invoices 2, 4, 5; excluded CLINS, invoices 16-20).

Invoices for Task Orders 0007 and 0008 have similar issues of not capturing the traffic

violations and tolls amount in the total invoice amount (SOF ¶ 28, invoices 6, 8-12,

14-15).

We conclude that material facts are in dispute regarding the invoices for Task

Orders 006, 0007, and 0008. Without expert testimony regarding the WAWF invoices,

we cannot ascertain whether the traffic violations and tolls CLIN 0012AA were

included in the processed invoices and whether the term “paid” means the invoice was

approved to be paid or whether Trident was paid money. For the foregoing reasons,

both the government’s motion and Trident’s cross-motion for summary judgment on

damages for services provided before the transfer of vehicles are denied.

G. The Government’s Termination for Cause

A termination for default is a drastic sanction that should be imposed (or

sustained) only for good grounds and on solid evidence. Lisbon Contractors, Inc. v.

United States, 828 F.2d 759, 765 (Fed. Cir. 1987) (quoting J.D. Hedin Constr. Co. v.

United States, 408 F.2d 424, 431 (Ct. Cl. 1969) (citation omitted)). Though this is an

appeal brought by Trident, because a termination for default is essentially a

government claim, the government bears the initial burden of proving “by a

preponderance of the evidence that a termination for default was justified.” Keystone

Cap. Servs., ASBCA No. 56565, 09-1 BCA ¶ 34,130 at 168,753 (citing Lisbon

Contractors, 828 F.2d at 765). “If the government establishes a prima facie case

justifying the termination, the burden shifts to the contractor to prove the default was

excusable.” Truckla Servs., Inc., ASBCA Nos. 57564, 57752, 17-1 BCA ¶ 36,638

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at 178,445 (citing ADT Constr. Grp., Inc., ASBCA No. 55358, 13 BCA ¶ 35,307

at 173,312).

i. The government established a prima facie justification for the

termination

The termination in this appeal is governed by FAR 52.212-4(m), CONTRACT

TERMS AND CONDITIONS — COMMERCIAL ITEMS (JULY 2013) (SOF ¶¶ 20,

40). FAR 52.212-4(m) allows the government to terminate for cause for any one of

three reasons: (1 ) default by the contractor; or (2) failure of the contractor to comply

with contract terms and conditions; or (3) failure to provide the government, upon

request, with adequate assurances of future performance. The government has

established a prima facie basis to terminate on all three grounds.

Task Orders 0006, 0007, and 0008 required Trident to provide a 12-month lease

of five non-tactical vehicles in Qatar (SOF ¶¶ 2-5). However, it is undisputed, and the

cited record shows that Trident’s representative, Mr. Mostafa, retrieved the five

vehicles on December 30, 2015. In addition, Trident failed to timely respond to the

CO’s cure notice and provide replacement vehicles as required by the contract (SOF

¶¶ 1-5, 18-20, 23, 44). After a week without vehicles, pursuant to PWS paragraph

¶ 4.3, the CO determined Trident was not in compliance for failure to supply vehicles

under the task orders and issued a cure notice dated January 6, 2016, for Trident to

provide replacement vehicles within 10 days (SOF ¶¶ 20, 44). Trident failed to

provide the CO with adequate assurances of future performance within the 10-day

deadline. Trident did not timely respond to the cure notice, and on January 20, 2016,

Mr. Kuster responded that “Trident is unable to provide vehicles . . . .” (SOF ¶ 23).

The government has demonstrated by a preponderance of the evidence that its

termination for cause was justified. The burden now shifts to Trident to prove its

default was excusable.

ii. Appellant has failed to show its default was excusable

The nexus of appellant’s argument is that government’s prior material breaches

directly caused Trident’s lack of performance, namely, the transfer of the leased

vehicles indirectly to Mr. Alajmi (app. cross-mot. and resp. at 27-28). Thus, appellant

argues that its non-performance is excused, and the termination is improper (app.

combined memorandum of law and opp. to gov’t summary judgment mot. dtd. April 15,

2022 at 11-12).

Paragraph (f) of FAR 52.212-4, Excusable delays, postulates that such delays

must be “beyond the reasonable control of [Trident] and without its fault or

negligence,” and provides examples. For reasons already explained at length and

exhausted above, appellant has failed to show that the government first materially

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breached the contract, acted in bad faith, or was responsible for Trident’s failure to

perform under the contract conditions. Appellant’s reasoning that Mr. Alajmi

ultimately obtained the leased vehicles, the government must have been directly

involved and responsible is faulty and unsupported by the cited record. Briefly,

appellant has failed to show that the government communicated and/or coordinated

with a third party, Mr. Alajmi, to transfer the leased vehicles. Appellant’s citation to

emails and texts messages from Mr. Alajmi to government personnel in an attempt to

obtain information or “coordinate” retrieval of the leased vehicles is insufficient to

show that the government coordinated with Mr. Alajmi (SOF ¶¶ 8-9, 14-16, 33, 36).

The cited records demonstrate that the government was uncommunicative with

Mr. Alajmi (not responding to Mr. Alajmi’s text messages and emails) and did not

provide him with any assistance (refusing to provide Mr. Alajmi any information after

repeated requests; the CO correctly refused to communicate or provide any assistance

with Mr. Alajmi as he lacked privity of contract) (SOF ¶¶ 8, 9, 14-16, 33, 36). In

addition, appellant has not shown the government knew or should have known that

Trident’s representative, Mr. Mostafa, would obtain the leased vehicles on behalf of

Mr. Alajmi. Accordingly, appellant failed to show its default was excusable without

fault or negligence.

The government’s motion for summary judgment on this issue is granted, and

appellant’s cross-motion for summary judgment on this issue is denied.

H. Contractor Performance Assessment Reporting System (CPARS)

i. The Board has jurisdiction over appellant’s CPARS claim, and appellant

did not abandon it

The government argues that “the Board does not have the jurisdiction to grant

specific performance such as revising the CPARS assessment” citing Versar, Inc.,

ASBCA No. 56857, 10-1 BCA ¶ 34,437 at 169,959 (gov’t mot. at 16, n.2). In the

alternative, the government argues that appellant’s CPARS claim should be dismissed

since appellant has abandoned it (gov’t mot. at 16, n.2).

The government is correct that we do not possess jurisdiction to order an agency

to revise a CPARS rating. PROTEC GmbH, ASBCA No. 61161 et al., 18-1 BCA

¶ 37,064 at 180,420. However, we can assess whether the contracting officer

reasonably rendered the disputed performance rating or was arbitrary and capricious in

assigning an inaccurate and unfair performance evaluation and abused her discretion.

Versar, Inc., 10-1 BCA ¶ 34,437 at 169,959; MicroTechnologies, LLC, ASBCA

Nos. 59911, 59912, 16-1 BCA ¶ 36,354 at 177,236. Thus, we may remand a matter to

require a contracting officer to follow applicable regulations and provide appellant with

a fair and accurate performance evaluation. MicroTechnologies, LLC, ASBCA

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Nos. 59911, 59912, 15-1 BCA ¶ 36,125 at 176,348; Colonna’s Shipyard, Inc., ASBCA

No. 56940, 10-2 BCA 34,494 at 170,139-40; Versar, Inc., 10-1 BCA 34,437 at 169,959.

We view appellant’s CPARS claim as making one central assertion, that the

government acted arbitrarily and capriciously, or in “bad faith,” when it evaluated

appellant’s performance as being “unsatisfactory.” (See SOF ¶ 29). Appellant’s claim

appears to challenge the CO’s CPARS assessment as being arbitrary and capricious in

assigning poor performance evaluation, which, Trident alleges, was a situation created

by the government: requesting “a new CPAR assessment” because “[t]he Final Report

is also on its face unreasonable because the analysis is incorrect, self-serving and

completely backwards” and alleges that the government “fail[ed] to perform factual

and/or legal due diligence” in the CPARS report (gov’t mot., ex. G-2 at 9, 13). Here,

by seeking that the Board overturn the COFD, which included its decision on Trident’s

CPARs claim, appellant seeks an order remanding the appeal to require the CO to

provide Trident with a fair and accurate performance evaluation. See PROTEC

GmbH, 18-1 BCA ¶ 37,064 at 180,420; Sungwoo E&C Co., ASBCA Nos. 61144,

61219, 19-1 BCA ¶ 37,449 at 181,976 (The Board has jurisdiction over the

government’s performance evaluations to determine whether they were arbitrary and

capricious when the government failed to exercise contract options and the contractor

alleged the government acted in bad faith.). The CPARS claim was not abandoned as

appellant’s amended complaint discusses at length the facts surrounding the CPARS

assessment (amended compl. dtd. September 30, 2020 ¶¶ 59-61). Under the heading

“Requested Relief,” appellant requested that the Board “[o]verturn the contracting

officer’s Final Decision” and “[a]ward Trident any other relief that the Board deems

appropriate” (id. at 15, ¶¶ g, n).

Therefore, we possess jurisdiction over Trident’s CPARS claim, and appellant

did not abandon it.

ii. The CO’s CPARS rating was not arbitrary and capricious

Trident received “unsatisfactory” ratings under the evaluation areas of schedule,

management, and regulatory compliance (SOF ¶¶ 26, 27). The nexus of appellant’s

claim is that the government acted in bad faith and created the situation which resulted

in the leased vehicles being “repossessed” by Mr. Alajmi (gov’t mot., ex. G-2 at 8-10;

amended compl. dtd. September 30, 2020 ¶¶ 60, 70, 75-76, 85, 89, 92, 94, 99).

Government officials are presumed to have acted in good faith. To prove bad faith,

Trident would have to show with convincing clarity a high probability that the CO

responsible for the CPARS acted from “personal animus with specific intent to injure

it.” Pangea, Inc., ASBCA Nos. 62561, 62640, 22-1 BCA ¶ 38,026 at 184,669; see also

Genome-Commc’ns, ASBCA Nos. 57267, 57285, 11-1 BCA ¶ 34,699 at 170,889

(allegedly bad faith, retaliatory contract termination); Defense Sys. Co., ASBCA

No. 50918, 00-2 BCA ¶ 30,991 at 153,005 (allegedly bad faith, retaliatory cure notice)).

36

Appellant has failed to meet its burden of establishing that the negative

evaluation was unjustified and was precipitated by the government’s alleged

coordination with Mr. Alajmi to retrieve the vehicles (which appellant has failed to

cite support in the record for its position). The cited record does not support that the

government acted in bad faith, coordinated with Mr. Alajmi to retrieve the vehicles, or

that the CO acted arbitrarily and capriciously to issue a negative performance

evaluation. Quite the opposite.

Once learning of the potential dispute between Mr. Alajmi and Trident, the CO

immediately emailed Trident, to which Mr. Zvarick responded that they “are working

diligently to resolve this dispute with Mr. Alajmi” to “insure there is no interruption of

service” (SOF ¶¶ 8, 10-12). It was appellant’s representative, Mr. Mostafa, who

retrieved the vehicles from the government (SOF ¶¶ 18-19). Appellant paints itself as

the victim in this situation that the vehicles were retrieved, and they could not obtain

them back from Mr. Alajmi. Behind the scenes, after receiving the January 6, 2016,

cure notice, Mr. Zvarick encouraged Mr. Alajmi to either return the vehicles to the

government or “make every effort to sell the vehicles as soon as possible” (SOF ¶ 21).

Mr. Zvarick’s position to minimize his potential debts with Mr. Alajmi through selling

the leased vehicles is opposite of Trident’s contract requirements to provide the leased

vehicles (SOF ¶¶ 1-5, 9, 21). Although indicating in its response to the cure notice that

Trident would be able to “sort[] out any problems” with Mr. Alajmi and provide the

leased vehicles to the government, Trident again reversed course and stated to the CO

that it would be unable to provide the leased vehicles (SOF ¶¶ 22-23). Thus, the record

reflects an unfortunate situation where Trident’s Qatar sponsor was able to indirectly

retrieve the leased vehicles to address an ongoing financial dispute with Trident, not the

contracting officer acting in bad faith in issuing negative performance evaluations (SOF

¶¶ 9, 11-12, 18-19, 21-23). The CO’s CPARS report describes in detail the late

delivery of vehicles, poor communication (prolonged periods of not reaching any

Trident’s representatives), incorrect invoicing procedures, failure to timely respond to

the cure notice, and failure to provide replacement vehicles (SOF ¶ 27).

We conclude that the CO did not abuse her discretion and did not act arbitrarily

and capriciously in assigning her performance assessment of Trident.

The government’s motion for summary judgment on this issue is granted, and

appellant’s cross-motion for summary judgment on this issue is denied.

CONCLUSION

The government’s motion for summary judgment is granted, and appellant’s

cross-motion for summary judgment is denied as to: Breach of Contract –Failure to

Return the Vehicles, Breach of Contract – Communications Regarding Contract

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Performance, Breach of Bailment Agreement, Breach Of Implied Duty Of Good Faith

And Fair Dealing, Improper Termination for Cause, and the Contractor’s Performance

Assessment Report rating was not arbitrary and capricious. The parties’ motions are

denied for the costs associated with past-due leasing, maintenance, and traffic

violations, as there are material facts in dispute.

Dated: May 8, 2023

JOHN J. THRASHER

Administrative Judge

Chairman

Armed Services Board

of Contract Appeals

I concur I concur

RICHARD SHACKLEFORD OWEN C. WILSON

Administrative Judge Administrative Judge

Vice 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 Nos. 60541, 62144, Appeals of

Trident Engineering & Procurement, P.C., rendered in conformance with the Board’s

Charter.

Dated: May 8, 2023

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals

38