Al Ghanim Combined Group W.L.L.

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of - ) ) Al Ghanim Combined Group W.L.L. ) ASBCA Nos. 62321, 62984 ) Under Contract No. W912ER-14-D-0005 ) APPEARANCE FOR THE APPELLANT: Sam Zalman Gdanski, Esq. Gdanski Law PC Teaneck, NJ APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Cara M. Mroczek, Esq. Ken T Kajihiro, Esq. Aimee L. Rippeon, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Middle East OPINION BY ADMINISTRATIVE JUDGE HERZFELD Al Ghanim Combined Group W.L.L. (Al Ghanim) seeks its delay costs from the United States Army Corps of Engineers (Army Corps) for awaiting the arrival of security escorts before it could travel to do construction work at two buildings at Camp Ali Al Salem, Kuwait, in 2018. The parties submitted the appeals on the record under ASBCA Rule 11. For the reasons discussed below, we sustain Al Ghanim’s appeal in the amount of $34,320.11, plus applicable Contract Disputes Act (CDA) interest. FINDINGS OF FACT I. The Contract and the Security Escort Process On November 7, 2013, the Army Corps awarded Al Ghanim an indefinite delivery/indefinite quantity job order contract (Contract) to perform “sustainment, restoration, and modernization . . . projects at installations in Kuwait” (62321 R4, tab 3 at 3; 62984 R4, tab 5 at 3). On September 29, 2017, the Army Corps awarded two task orders to Al Ghanim to perform minor construction and repair work at Camp Ali Al Salem’s Joint Logistics Operations Center Facility A office (JLOC-A) and Joint Logistics Operations Center Facility B office (JLOC-B) (62321 R4, tab 12 at 2 (JLOC- A); 62984 R4, tab 7 at 3 (JLOC-B)). The task orders included a contract completion date of July 16, 2018 (62321 R4, tab 12 at 3; 62984 R4, tab 7 at 4). To perform the task orders necessarily required Al Ghanim to work on-site at Camp Ali Al Salem in Kuwait. The base’s Air Force wing served “as the primary airlift hub and gateway for delivering combat power to joint and coalition forces in the U.S. Central Command Area of Responsibility” (supp. R4, tab 28 at 1; tab 29 at 1). The air base is located approximately 39 miles from the Iraqi border (supp. R4, tab 29 at 1; tab 27). Before the parties entered the contract, the Air Force’s Commander of the Ninth Air Force had issued an order requiring military escorts while on base: “All [local national/other country national] personnel under [United States Air Force] control and performing contracted services require escort unless the wing commander deems otherwise” (supp. R4, tab 24 at 3 (Air Force Central Instruction 32-1002); tab 36 – Lantz decl. ¶ 4). 1 This order – Air Force Central Instruction 32-1002 – applied to “all Air Force military, civilian, and contracted personnel” of the Ninth Air Force “while deployed to the” United States Central Command area of responsibility, which included Camp Ali Al Salem (supp. R4, tab 24 at 3 (Air Force Central Instruction 32- 1002); tab 36 – Lantz decl. ¶ 4). The instruction’s “Commander’s Intent” section explained that “escorts are needed for [local national], [other country national] and contract employees in areas containing essential personnel, equipment, or information that must be protected from sabotage or disclosure to enemy forces” (supp. R4, tab 24 at 3 (Air Force Central Instruction 32-1002)). However, later in the instruction under the “Personnel Requiring Escort” section, it clarified that it only applied to contracting personnel: “All [local national/other country national] personnel under USAF control and performing contracted services require escort unless the wing commander deems otherwise” (id.). The order also warned service members that “[f]ailure to comply is a potential violation” of the Uniform Code of Military Justice (id.). Consistent with the order, the Contract warned that “[a]ll work under this contract is to be accomplished on secure sites,” which meant “[c]ontractor personnel and work crews shall be required to be in the presence of Government Escorts at all times they are on the installations” (62321 R4, tab 3 at 53-54; 62984 R4, tab 5 at 53- 54). The Contract further explained, “Security requirements and restrictions are for the specific purpose of protecting the security and force protection interests of the government. Protecting these interests will at all times take precedence over the accomplishment of the work under this contract.” (62321 R4, tab 3 at 54; 62984 R4, 1 The Army Corps provided a 2021 version of Air Force Instruction 32-1002, but explained by declaration that this version is “substantively similar” to the version in effect in 2018 at the time the Al Ghanim escorts at issue took place (supp. R4, tab 36 – Lantz decl. ¶ 4). Al Ghanim has not disputed these facts. 2 tab 5 at 54) The Contract also warned, “The capacity of the government to provide Escorts is limited, and subject to unavoidable shortages” (62321 R4, tab 3 at 54; 62984 R4, tab 5 at 54). “Work and work schedule shall be required to be adjusted in accordance with the Government’s ability to provide Escorts” (62321 R4, tab 3 at 54; 62984 R4, tab 5 at 54). The Contract set up a process for Al Ghanim to obtain escorts (62321 R4, tab 3 at 54; 62984 R4, tab 5 at 54). The Contract required Al Ghanim to “provide the Contracting Officer with a twice per week report (in writing) with projections of manpower to be working on a daily basis . . . . to obtain accurate estimates weekly in order that the number of Government Escorts can be planned and provided to meet Contractor work requirements” (62321 R4, tab 3 at 54; 62984 R4, tab 5 at 54). “No later than 1200 hours each day, Contractor shall provide the Contracting Officer with an accurate report as to numbers of personnel, crews and crew sizes to be working on the following work day, and shall confirm that the required escorts will be available” (62321 R4, tab 3 at 54; 62984 R4, tab 5 at 54). The Contract indicated that site locations requiring escorts “[m]ost commonly . . . pertain to U.S. Air Force and they shall provide escorts” (62321 R4, tab 3 at 56; 62984 R4, tab 5 at 56). As anticipated by the Contract, the Air Force conducted the escorts at Camp Ali Al Salem and required Al Ghanim to submit escort request forms (app. R11 br., ex. F; supp. R4, tab 30; tab 33 at 50 (Al Ghanim representative acknowledging Air Force provided escorts)). The escort forms stated: “An escort request does not guarantee availability” (app. R11 br., ex. F at 147; supp. R4, tab 30). As part of the bidding process on the Contract, contractors (including Al Ghanim) had to submit a price based on a coefficient, which meant “a numerical factor that represents costs not considered to be included in ‘Unit Price Book’ unit prices” that were provided as an attachment to the Contract (62321 R4, tab 3 at 37, 39; 62984 R4, tab 5 at 37, 39). “Coefficients shall consist of items such as: general and administrative and other overhead costs, insurance costs, bonding and alternative payment protection costs, protective clothing, equipment rental, sales tax and compliance with tax laws and also contractor’s profit, as applicable” (62321 R4, tab 3 at 39; 62984 R4, tab 5 at 39). The Contract also stated, “In formulating his proposal for the coefficients, Contractor will consider and account for the cost implications inherent in accomplishment of work on secure installations” (62321 R4, tab 3 at 54; 62984 R4, tab 5 at 54). The Contract specifically stated that it should include all costs of “complying with security measures including obtaining host nation gate passes, DBIDS [Defense Biometric Identification System] Registration . . . Local Employed Personnel (LEP) interviews, processing times through vehicle search area both in and out of base, and complying with escort policies” as part of the coefficients (62321 R4, tab 3 at 40; 62984 R4, tab 5 at 40). Al Ghanim’s coefficients factored in all these security requirements including delays of up to 30 minutes to account for the 3 contractor’s completion of all required on-base processing at the facility and when government escorts would be available to shepherd the contractor around the base to conduct work (app. R11 br., Lakshmi aff. ¶¶ 9, 15; 62321 R4, tab 3 at 9-11; 62984 R4, tab 5 at 9-11). II. Delays During Performance Consistent with the Contract, Al Ghanim submitted escort request forms in advance of days the contractor planned to work (app. R11 br., ex. F). Al Ghanim usually identified the time it would arrive at the Visitor Control Center and the time 30 minutes later when the Air Force would need to provide the security escort (id.). 2 Air Force enlisted personnel with the force protection unit regularly coordinated with and approved Al Ghanim’s escort requests, usually stating that the force protection unit could “accommodate” the escort request (id.; supp. R4, tab 38 – Nichols decl. ¶ 6 (officer noting that he was sometimes copied on escort requests, but he was not part of the force protection unit). Al Ghanim copied the Army Corps when it submitted its security escort requests and the Corps’ project manager “actively monitored” the force protection process in an attempt to avoid or mitigate delays (supp. R4, tab 35 – Heffern decl. ¶¶ 13-15). Each day, Al Ghanim personnel and equipment had to present their base access badges and to pass through the vehicle and contractor security checkpoint at the Visitor Control Center before joining the security escorts (supp. R4, tab 40 – Yassin decl. ¶¶ 5-8; tab 35 – Heffern decl. ¶¶ 6-10). The Army Corps’ contracting officer’s representative agrees with Al Ghanim that this process normally took about 30 minutes (supp. R4, tab 40 – Yassin decl. ¶ 11). Thus, we find this 30-minute estimate to be reasonable. During performance, Al Ghanim notified the contracting officer that it was encountering weather and government-caused delays for both the JLOC-A and JLOC- B task orders (supp. R4, tab 7 at 20, 22; 62321 R4, tabs 46, 47, 52; 62984 R4, tabs 40, 51). As to government-caused delays, Al Ghanim explained: “Nearly every time[,] the escort arrives late at the [Visitor Control Center] to pick up our crew, consequently our crew reaches late to the site” (62321 R4, tab 49 at 1; 62984 R4, tab 47 at 1). The government had approved Al Ghanim’s escort requests for a particular time but frequently did not come at the specified time to escort Al Ghanim’s personnel to the site (supp. R4, tab 33 – Krishna tr. at 58; app R11 br., ex. F). On its daily quality 2 The record is missing escort request forms for March 10-31, 2018, April 1-2, 4-15, 23-30, 2018, May 1-3, 5-8, 12-15, 2018, for the JLOC-A crew; and March 12- 31, 2018, April 1-2, 5-15, 23-30, 2018, and May 1-3, 5-8, 12-15, 2018, for the JLOC-B crew (supp. R4, tab 39 – Witherington decl. ¶ 25(f)(v); tabs 39e, 39f (orange highlighted); app. R11 br., ex. F). 4 control reports, Al Ghanim noted when Al Ghanim’s personnel arrived at the Visitor Control Center, when the security escort arrived at the Visitor Control Center (for most days), and when Al Ghanim arrived at the work site that day (app. R11 br., exs. A.4, A.5). On some days, however, Al Ghanim’s personnel arrived at the Visitor Control Center later than the agreed-to time (supp. R4 tab 39 – Witherington decl. ¶ 12(k)(v); tabs 39e & 39f (gray highlighted days); app. R11 br., ex. F; ex. A.4 at 668, 776-78, ex. A.5 at 135, 460, 568-669). III. Al Ghanim’s Requests for Equitable Adjustment and Claims Seeking Costs for Security Escort Delays On November 18, 2018, Al Ghanim submitted two documents styled as requests for equitable adjustment seeking time extensions and costs for security escort and weather delays from January through October 2018 (62321 R4, tab 57; 62984 R4, tab 3). For JLOC-A, Al Ghanim requested a 41-day time extension and costs of $206,621.96 (62321 R4, tab 57 at 1). For JLOC-B, Al Ghanim also requested a 41- day time extension and costs of $206,328.89 (62984 R4, tab 3 at 1). For each day on which Al Ghanim alleged a delay, Al Ghanim broke its delay costs into four items: (1) technical staff and manpower costs; (2) equipment costs; (3) indirect extended overhead costs; and (4) other indirect expenses (62321 R4, tab 57 at 9-368; 62984 R4, tab 3 at 10-364). Al Ghanim certified each request as required by the Requests for Equitable Adjustment clause, Defense Federal Acquisition Regulation Supplement (DFARS) 252.243-7002 (DEC 2012) (62321 R4, tab 57 at 2; 62984 R4, tab 3 at 2; 62321 R4, tab 3 at 23 (Contract incorporating DFARS clause); 62984 R4, tab 5 at 23 (same)). For the first several months of 2019, representatives from Al Ghanim and the Army Corps met and attempted to negotiate a resolution to Al Ghanim’s requests for equitable adjustment (supp. R4, tabs 16, 17; tab 40 – Yassin decl. ¶¶ 13-18). By April 2019, the parties had reached a stalemate. The Army Corps would not award any cost adjustment for any delays, but recognized escort delays of 12 days (and delays of 22 days due to badging appointments and seven days due to severe weather) (supp. R4, tab 16 at 2-3; tab 17 at 2-3; tab 40 – Yassin decl. ¶¶ 18, 20-21). On May 20, 2019 (after the unsuccessful negotiations and while waiting for a decision on its requests for equitable adjustment), Al Ghanim submitted a combined document styled as a request for equitable adjustment, reiterating its requests for a 41- day time extension and $412,950.85 for delays encountered at the Visitor Control Center while accessing the base between January and October 2018 (62984 R4, tab 56 at 1; 62321 R4, tab 58 at 1). Of the total costs, Al Ghanim again reiterated that it sought $206,621.96 related to work on JLOC-A and $206,328.89 related to work on JLOC-B (62984 R4, tab 56 at 1-2, 16-21, 389-94; 62321 R4, tab 58 at 1-2, 16-21, 389- 94). Al Ghanim attached a document labeled as a “draft” titled “Letter Request for 5 Contracting Officer Final Decision (‘COFD’) under the Contract Disputes Act (‘CDA’)” which Al Ghanim “submitted so that the Government can immediately review the matter for a mutual and amicable finalization, and . . . . [i]f resolution cannot be achieved bilaterally, then consider this a ‘Claim’ under the Contract Disputes Act” (62984 R4, tab 56 at 2; 62321 R4, tab 58 at 2). Al Ghanim included no certification with this submission, neither as a claim under the CDA nor as a request for equitable adjustment (62984 R4, tab 56 at 2; 62321 R4, tab 58 at 2). Although seeking delay costs, Al Ghanim cited the Contract’s Changes clause, which states: “If any change under this clause causes an increase or decrease in the Contractor’s cost of, or the time required for, the performance of any part of the work under this contract, whether or not changed by any such order, the Contracting Officer shall make an equitable adjustment and modify the contract in writing.” Federal Acquisition Regulation (FAR) 52.243-4(d) (JUN 2007) (incorporated by reference in Contract, 62321 R4, tab 3 at 22; 62984 R4, tab 5 at 22; 62984 R4, tab 56 at 2; 62321 R4, tab 59 at 2). The Contract also includes a Suspension of Work clause that states: If the performance of all or any part of the work is, for an unreasonable period of time, suspended, delayed, or interrupted (1) by an act of the Contracting Officer in the administration of this contract, or (2) by the Contracting Officer’s failure to act within the time specified in this contract (or within a reasonable time if not specified), an adjustment shall be made for any increase in the cost of performance of this contract (excluding profit) necessarily caused by the unreasonable suspension, delay, or interruption, and the contract modified in writing accordingly. FAR 52.242-14(b) (APR 1984) (incorporated by reference in Contract, 62321 R4, tab 3 at 22; 62984 R4, tab 5 at 22). On June 16, 2019, the Army Corps responded to Al Ghanim’s November 2018 requests for equitable adjustment for “entry-related delays to site access due to security forces being late in providing necessary escorts and delays due to severe weather conditions” from January through October 2018 (62321 R4, tab 59 at 1; 62984 R4, tab 57 at 1). The contracting officer recognized that Al Ghanim had shown six days of severe weather delays and 36 days related to security escort delays (62321 R4, tab 59 at 2; 62984 R4, tab 57 at 2). The agency explained: “The Government’s daily Quality Control records support [Al Ghanim’s] assertions of escort delays on the days identified” (62321 R4, tab 59 at 2; 62984 R4, tab 57 at 2). The contracting officer granted Al Ghanim an “additional two days of time extension for escort delays” because the “overall impact” was likely greater than just the specific days directly impacted (62321 R4, tab 59 at 3; 62984 R4, tab 57 at 3). 6  While granting time extensions, the contracting officer refused to award any costs to Al Ghanim for the delays (62321 R4, tab 59 at 4; 62984 R4, tab 57 at 4). “The Government has made no change to the contract regarding its weather or escort requirements, and therefore no change has occurred” (62321 R4, tab 59 at 4; 62984 R4, tab 57 at 4). The contracting officer believed that “both weather and escort delays are to be considered as excusable, non-compensable delays” under the Contract (62321 R4, tab 59 at 4; 62984 R4, tab 57 at 4). The contracting officer relied on the excusable delays provision of the Contract’s Default clause, which states a contractor “shall not be terminated” where the “delay in completing the work arises from unforeseeable causes beyond the control and without the fault or negligence of the Contractor” such as “acts of the Government in either its sovereign or contractual capacity” and “unusually severe weather.” FAR 52.249-10(b)(1)(ii) & (x) (APR 1984) (incorporated by reference in the Contract, 62321 R4, tab 3 at 23; 62984 R4, tab 5 at 23). The contracting officer explained, “Default-related events do not entitle [Al Ghanim] to extended site overhead costs; only the time it was impacted by the events” (62321 R4, tab 59 at 4; 62984 R4, tab 57 at 4). Thus, the contracting officer denied Al Ghanim’s request for costs but agreed “to a time extension of 44 days due to excusable, non- compensable delay” (62321 R4, tab 59 at 4; 62984 R4, tab 57 at 4). While the contracting officer titled the final section of the letter as the “Final Decision,” throughout the letter (including in that section) the government was responding to Al Ghanim’s requests for equitable adjustment (62321 R4, tab 59 at 1, 4; 62984 R4, tab 59 at 1, 4). The contracting officer’s responses to the requests for equitable adjustment did not include any notice of appeal rights as required by the CDA and FAR 33.211(a)(4)(v). After issuing the decisions on the requests for equitable adjustment, the Army Corps unilaterally modified each task order to grant Al Ghanim “a time extension of 44 non compensable days” for weather and security escort delays (62321 R4, tab 16 at 1, 4; 62984 R4, tab 12 at 1; supp. R4, tab 20 at 1; supp. R4, tab 21 at 1). The modification extended the contract completion date to November 7, 2018 (supp. R4, tab 20 at 1; tab 21 at 1). On August 22, 2019, the parties exchanged correspondence indicating an understanding that the requests for equitable adjustment were still open to discussion (supp. R4, tab 22). The contracting officer’s representative stated, “We understand there are open REA for the JLOC projects . . . , but we need to confirm when are you submitting your final invoices” (supp. R4, tab 22 at 2). Al Ghanim responded to the contracting officer’s representative and the contracting officer: “[F]or JLOC’s REA, we will be submitting a reply to the KO’s letter next week. Upon receiving KO’s reply to our letters, we will notify you with our decision on the submission of the final payments” (id.). On September 10, 2019, the contracting officer’s representative requested an update, indicating that the contracting officer had not yet received Al Ghanim’s letter with the “JLOC closeout invoice” (id.). Later that day the contracting 7 officer stated that “REA Response Letters for JLOC A & B” were “final” and “[t]his REA is considered closed and we need it close it” [sic] (supp. R4, tab 22 at 1). The next day, on September 11, 2019, Al Ghanim requested that the contracting officer issue a final decision under the CDA regarding its JLOC-A claim for delay costs of $206,621.96 (62321 R4, tab 2 at 1; supp. R4, tab 23 at 2 (email attaching the letter)). On December 30, 2019, Al Ghanim requested a final decision under the CDA regarding its JLOC-B claim for delay costs of $206,328.89 (62984 R4, tab 4 at 1, 3). Responding to the contracting officer’s June 16, 2019 determination, Al Ghanim argued that there was no sovereign act that justified awarding only a time extension but not costs due to the delay (62321 R4, tab 2 at 1; 62984 R4, tab 4 at 3). Al Ghanim also noted its belief that the contracting officer’s response to the request for equitable adjustment “was apparently not issued as a ‘final decision’” and “[t]hus we do not believe any jurisdictional requirements had attached for Appeal purposes to the ASBCA and/or the United States Corps [sic] of Federal Claims” (62321 R4, tab 2 at 1; 62984 R4, tab 4 at 3). Consistent with this understanding, Al Ghanim certified its claim per the CDA as delineated by the Contract’s Disputes clause (62321 R4, tab 2 at 2; 62321 R4, tab 3 at 22 (Contract incorporating by reference, FAR 52.233-1 Alt. 1, DISPUTES (DEC 1991)); 62984 R4, tab 4 at 4; 62984 R4, tab 5 at 22). On October 9, 2019, Al Ghanim sent an email to the Army Corps Area Engineer (copying the contracting officer) that it still was “waiting” for a response from the Army Corps regarding its September 11, 2019 certified claim (supp. R4, tab 23 at 1). In response on the same day (now more than 90 days after the June 2019 request for equitable adjustment decisions), the Army Corps Area Engineer (copying the contracting officer) asserted that the June 2019 decision “WAS the final decision” and “[t]here is no other letter coming your way to respond” to the certified claim (id.). On December 20, 2019, Al Ghanim noticed an appeal to this Board based on a deemed denial of its claim regarding costs relating to the JLOC-A task order, which we docketed as ASBCA No. 62321. On July 16, 2021, Al Ghanim noticed an appeal to this Board based on a deemed denial of its claim regarding costs relating to the JLOC-B task order, which we docketed as ASBCA No. 62984. We subsequently granted Al Ghanim’s request to consolidate the appeals. In its complaints, Al Ghanim stated that the “underlying dispute arises out of delay claims” and the “government failure to properly sustain its own employees where the government is responsible for the delay is a ‘constructive change’” (62321 compl. at 1-2; 62984 compl. ¶¶ 1, 7). IV. The Costs Sought by Al Ghanim on Appeal Al Ghanim has reduced the amount it seeks for the delay costs because (1) it determined that several days were the result of weather conditions (for which it seeks no compensation) rather than delays in arrival of the Air Force security escorts, and (2) 8 it now seeks only its direct costs and no longer seeks any overhead costs (app. R11 br., ex. A.1; Lakshmi aff. ¶ 15). Al Ghanim seeks $131,174.88 in delay costs related to its work at JLOC-A (app. R11 br., ex. A.2 at 6). Al Ghanim seeks $124,056.07 in delay costs related to its work at JLOC-B (app. R11 br., ex. A.3 at 101). To support its appeal, Al Ghanim relies on its daily quality control reports, in which it noted contemporaneously when Al Ghanim’s personnel arrived at the Visitor Control Center, when the security escort arrived at the Visitor Control Center (for most days), and when Al Ghanim arrived at the work site that day (app. R11 br., exs. A.4, A.5). For each of the days of delay, Al Ghanim subtracts 30 minutes as priced into its daily costs for processing through the Visitor Control Center (app. R11 br., exs. A.2, A.3). Based on these daily records and subtracting 30 minutes of time each day, Al Ghanim claims delays of between 10 minutes and four hours on 73 days for JLOC-A and 71 days for JLOC-B (app. R11 br., exs. A.1-A.3). For each day, Al Ghanim calculated its total manpower daily rate by using the number and type of employees (as reflected in the contractor’s daily quality control reports and the government’s quality assurance reports), hours worked, and an average hourly rate from the labor rates for each day using the timecards of each employee that worked for Al Ghanim (app. R11 br., ex. A.2 at 7-76; ex. A.3 at 130-73; exs. C & D; exs. A.4-A.5; 62321 R4, tab 69; 62984 R4, tab 68). For each day, Al Ghanim calculated its equipment rate based on the equipment it used that day (as reflected on the contractor’s quality control reports and the government’s quality assurance reports) using the “actual values” for the hourly rates of the equipment identified by name and serial number (app. R11 br., ex. A.2 at 77-97; A.3 at 107-24; Lakshmi aff. ¶ 17; app. R11 br., exs. A.4-A.5; 62321 R4, tab 69; 62984 R4, tab 68). Al Ghanim stated that it owned all the equipment used (app. R11 br., ex. A.1 at 2). The Army Corps presented evidence analyzing Al Ghanim’s alleged delays (supp. R4, tab 39). The agency’s cost analyst questioned the reliability and sufficiency of Al Ghanim’s documentation to support its labor rates because Al Ghanim “did not provide certified payroll information” in addition to the daily timecards (supp. R4, tab 39 – Witherington decl. ¶ 27(f)). Nevertheless, the cost analyst concluded that “the number and type of direct laborers claimed in the New Documentation was mostly supported by the Working Cards, but there were a small number of discrepancies where [Al Ghanim] either slightly overreported or underreported the number of laborers” (supp. R4, tab 39 – Witherington decl. ¶ 27(g)). The agency’s cost analyst also questioned the equipment rates because Al Ghanim allegedly failed to include information regarding the “equipment’s year purchased, make, model, tire type, and engine type” that would allow confirmation of “industry standard active and standby rates” (supp. R4, tab 39 – Witherington decl. ¶ 27(d)(iii)). The analyst asserted that the equipment should be billed at a standby or idle rate “because it is not actively being operated and used,” during the delay, which 9 would result in a “lower hourly rate based on use and equipment depreciation,” but it “appear[ed]” that Al Ghanim used its “active rate for all equipment” (supp. R4, tab 39 – Witherington decl. ¶¶ 27(d)(i) & (ii)). Despite questioning the labor and equipment documentation, the cost analyst nevertheless used Al Ghanim’s cost information in assessing the delay costs (supp. R4, tab 39 – Witherington decl. ¶¶ 25(a)-(b)). The cost analyst reviewed Al Ghanim’s cost and supporting documentation and re-calculated Al Ghanim’s delay costs (id.). First, the cost analyst determined that Al Ghanim “provided no justification . . . as to why [Al Ghanim] included additional time past the escorts’ arrival” at the Visitor Control Center, so any travel time from the Visitor Control Center to the site was eliminated from his calculation of recoverable delay costs (id. ¶ 27(a); tabs 39g-39h). Second, the cost analyst removed any days where Al Ghanim provided no supporting documentation (such as quality control reports or approved security escort request forms) to prove when the security escorts arrived or were supposed to arrive at the site (supp. R4, tab 39 – Witherington decl. ¶¶ 25(f)(i)-(ii) & (v); tabs 39e & 39f (red and orange highlights)). Third, the cost analyst removed any days where adverse weather caused work stoppages or Al Ghanim encountered wet site conditions (supp. R4, tab 39 – Witherington decl. ¶¶ 25(f)(iii) & (iv); tabs 39e & 39f (blue and yellow highlights)). For the remaining days, the cost analyst calculated the delays from the time when Al Ghanim arrived at the Visitor Control Center (whether on-time or late) through when the security escorts arrived at the Visitor Control Center (subtracting out 30 minutes for Al Ghanim’s processing through security at the center) (supp. R4, tab 39 – Witherington decl. ¶ 29, tabs 39e-39h). The cost analyst then multiplied the delay time for each day with Al Ghanim’s equipment and personnel costs for the day (supp. R4, tab 39 – Witherington decl. ¶ 29; tabs 39g & 39h). The cost analyst concluded that Al Ghanim should recover for 31.14 hours of delay and $17,940 for JLOC-A, and 26.7 hours of delay and $14,936 for JLOC-B (supp. R4, tab 39 – Witherington decl. ¶ 29; tabs 39g & 39h). In total, the cost analyst concluded that Al Ghanim would be entitled to $32,876 in compensable delays for both JLOC-A and JLOC-B (supp. R4, tab 39 – Witherington decl. ¶ 29; tabs 39g & 39h). The government initially moved for summary judgment on its sovereign acts defense and the parties briefed the matter. The parties then requested that the entire appeal be submitted on the record under ASBCA Rule 11, including agreeing to treat the summary judgment briefing of the sovereign acts defense under the same standard of review as Rule 11 instead of the summary judgment standard of review. 10  DECISION I. Standard of Review Board Rule 11 allows the parties to waive a hearing and submit an appeal on the record. Board Rule 11(a); Consorzio Stabile GMG S.c.ar.l., ASBCA No. 62753, 23-1 BCA ¶ 38,347 at 186,213. Under Board Rule 11, we conduct a “trial on the record;” we may weigh evidence, including resolving any disputed facts in making our findings of fact and rendering our decision. D-STAR Eng’g Corp., ASBCA Nos. 62075, 62780, 25-1 BCA ¶ 38,816 at 188,819, 188,826. We conduct a de novo review without deference to the contracting officer’s final decisions. Dep’t of Transp. v. Eagle Peak Rock & Paving, Inc., 69 F.4th 1367, 1374-76 (Fed. Cir. 2023); 41 U.S.C. § 7103(e); ASBCA Rule 10(c), (d). Al Ghanim, as the proponent of the claims, bears the burden of proof. FlightSafety Int’l, Inc., ASBCA No. 62659, 23-1 BCA ¶ 38,245 at 185,709, aff'd, 130 F.4th 926 (Fed. Cir. 2025). The Army Corps bears the burden of proving its affirmative defense invoking the sovereign acts doctrine. Conner Bros. Constr. Co. v. Geren, 550 F.3d 1368, 1371 (Fed. Cir. 2008) (“The doctrine is an affirmative defense that is an inherent part of every government contract.”); Frazier Invs., Inc., ASBCA No. 63001, 23-1 BCA ¶ 38,313 at 186,042 (“As the proponent of any affirmative defense, the [government] bears the burden of proof.”). II. Jurisdiction – Al Ghanim Timely Appealed Neither party has challenged our jurisdiction to consider Al Ghanim’s appeals but based on our review of the record we are obligated to raise the issue of timeliness sua sponte to assure that the Board has jurisdiction. White Balad Co., ASBCA No. 62934, 22-1 BCA ¶ 38,056 at 184,786. We must assess whether the Army Corps’ June 2019 determinations regarding Al Ghanim’s requests for equitable adjustment triggered the running of the 90-day statute of limitations for bringing appeals to the Board, which is jurisdictional and may not be waived. 41 U.S.C. § 7104(a) (“A contractor, within 90 days from the date of receipt of a contracting officer’s decision under section 7103 of this title, may appeal the decision to an agency board as provided in section 7105 of this title.”); Kellogg Brown & Root Servs., Inc., ASBCA No. 62681 et al., 22-1 BCA ¶ 37,974 at 184,426 (“The 90-day limitation is jurisdictional and, thus, may not be waived.”). We conclude that Al Ghanim’s appeals were timely because the agency did not treat the determinations as final and prejudicially failed to include the required appeal rights in its June 2019 determinations. Al Ghanim labeled its November 2018 submissions as requests for equitable adjustments (62321 R4, tab 57; 62984 R4, tab 3). However, the Federal Circuit has 11 instructed that labels are not dispositive as to whether a submission is a request for equitable adjustment or a claim. Zafer Constr. Co. v. United States, 40 F.4th 1365, 1367-68 (Fed. Cir. 2022); Hejran Hejrat Co. v. United States Army Corps of Eng’rs, 930 F.3d 1354, 1357 (Fed. Cir. 2019). We look to three objective criteria to assess whether a submission is a claim rather than a request for equitable adjustment: (1) the submission must meet the definition of a “claim” as defined by the Disputes clause in a contract (and FAR); (2) the submission includes a CDA certification (or some type of sworn statement that can be perfected into a CDA certification); and (3) the contractor must request a final decision from the contracting officer. Mindseeker, Inc., ASBCA No. 63197, 24-1 BCA ¶ 38,666 at 187,960 (citing Zafer Constr., 40 F.4th at 1367-68). First, Al Ghanim’s November 2018 submissions met the definition of a monetary “claim” under the CDA – “a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain . . . arising under or relating to this contract.” FAR 52.233-1(c) (incorporated by reference in the Contract, 62321 R4, tab 3 at 22; 62984 R4, tab 5 at 22); Zafer Constr., 40 F.4th at 1367 (recognizing that the FAR definition of a claim governs the use of the term under the CDA). Second, the November 2018 submissions included a certification per the Contract’s Requests for Equitable Adjustment clause (not under the CDA) (62321 R4, tab 57 at 2; 62984 R4, tab 3 at 2). DFARS 252.243-7002 (incorporated by reference in Contract, 62321 R4, tab 3 at 23; 62984 R4, tab 5 at 23 (same)). That is some evidence that Al Ghanim meant the submissions to be requests for equitable adjustment, but it is not dispositive to whether the document constituted a certified claim because any defective certification can be perfected into a CDA certification by statute. BAE Sys. Ordnance Sys., Inc., ASBCA No. 62416, 21-1 BCA ¶ 37,800 at 183,578 (noting “that the use of the REA certification [does] not prevent a submission from being a valid claim since the REA certification, notwithstanding its limitations, could be considered a defective, but curable CDA certification”); 41 U.S.C. § 7103(b)(3) (“A defect in the certification of a claim does not deprive a court or an agency board of jurisdiction over the claim.”). Third, Al Ghanim requested a final decision from the contracting officer. During the parties’ negotiations they treated the submission as a request for equitable adjustment (supp. R4, tabs 16, 17; tab 40 – Yassin decl. ¶¶ 13-18). However, after negotiations broke down, Al Ghanim’s May 2019 submission included a “draft” document titled “Letter Request for Contracting Officer Final Decision (‘COFD’) under the Contract Disputes Act (‘CDA’)” and requesting “that the Government can immediately review the matter for a mutual and amicable finalization, and . . . . [i]f resolution cannot be achieved bilaterally, then consider this a ‘Claim’ under the Contract Disputes Act” (62984 R4, tab 56 at 2; 62321 R4, tab 58 at 2). Thus, Al 12 Ghanim’s May 2019 submission (although lacking any certification) met the third requirement for a claim: making a request for a final decision from the contracting officer and we hold that, at that point, the requests for equitable adjustment were definitively a CDA claim. Given the circumstances above, the contracting officer’s June 2019 determinations could be considered final decisions under the CDA, triggering the 90- day statute of limitations for filing an appeal before the Board. Here, nevertheless, Al Ghanim reasonably believed that there was no final decision on a claim for it to appeal, and in such circumstances, the appeal clock does not run. See Guardian Angels Medical Service Dogs, Inc. v. United States, 809 F.3d 1244, 1250-51 (Fed. Cir. 2016). As discussed above, the June 16, 2019 responses from the contracting officer constituted final decisions on the requests for equitable adjustments that we have found to meet the definition of “claims.” But they were followed immediately by discussion between the Army Corps and Al Ghanim revisiting the issues in the requests for equitable adjustment and treating them as “open” (supp. R4, tab 22 at 2). Such discussions after the issuance of a final decision “serve to vacate the earlier decision along with the accompanying appeal period,” because they demonstrate that the decision is non-final. Guardian Angels, 809 F.3d at 1250 (quoting Royal Int’l Builders Co., ASBCA No. 42637, 92-1 BCA ¶ 24,684 at 123,135 (emphasis omitted)); BR Grp., ASBCA No. 63507, 24-1 BCA ¶ 38,699 at 188,158 (finding an appeal timely where agency indicated reconsideration of the final decision “was at least a possibility”). Thus, the government’s participation in additional talks make the June 16, 2019 decisions non-final (and the indicia of non-finality is strengthened by the contracting officer’s failure to include the statutorily-required notice of appeal rights in the June 16 decisions, as discussed below). Moreover, the contracting officer’s email on September 10, 2019 – stating that the June decisions were “final,” and that “this REA is considered closed and we need to close it” – did not reset the final decision date back to June 16, 2019 (supp. R4, tab 22 at 1). The Army Corps’ “after-the-fact” characterizations do not change the effects of its prior actions, which kept the requests for equitable adjustment open. Guardian Angels, 809 F.3d at 1250. Nor did the September 10, 2019 email reset the appellate clock. Even if we considered the September 10, 2019 email to nominally meet the criteria for a new final decision on a “claim,” the Army Corps’ failure to include the statutorily-required appeal rights prevented the appeal clock from running, because of actual prejudice to Al Ghanim. In particular, the CDA requires that the contracting officer “issue a decision in writing,” provide it by mail or otherwise to the contractor, 41 U.S.C. § 7103(d), and “state the reasons for the decision reached and shall inform the contractor of the contractor’s rights as provided in this chapter.”