In the classic 1993 movie Gettysburg, Colonel Joshua Chamberlain, a great American hero (played by Jeff Daniels), commented on the power wielded by military commanders, particularly generals: “Generals can do anything. Nothing quite so much like God on Earth as a general on a battlefield.”
It turns out that this power extends to actions that might affect your Government contract. For instance, a base commander can revoke a contractor’s access to the base; if that happens, and the contract required the contractor to maintain base access eligibility, the Government can rightly terminate the contract for default.
This fact scenario recently played out in Sang Kash Company, ASBCA 60532 (June 11, 2019). There, US Central Command maintained, with a contractor, a requirements contract for bulk concrete at Bagram Airfield, Afghanistan. The contract simply required the contractor to supply the concrete requested by the Government; but it did not guarantee the contractor a minimum quantity. Of particular importance here, the contract required the prime subcontractor, and all subcontractors, to remain eligible for access to U.S. military installations during the entire period of performance.
During performance, the Bagram Airfield Commander, by letter, revoked the contractor’s access to the base. The letter was short on details and didn’t spell out the reasons for the revocation. It did, however, give the contractor a 10-day window to remove all personnel and equipment from the base.
Because the contractor lost base access, the contracting officer terminated the contract for default citing the contractor’s violation of the base access clause in the contract.
The contractor appealed. It essentially argued that the contract required the Government to order thousands of cubic yards of concrete, and revocation of the base access was a clever way for the Government to get out of its contractual obligation. The contractor also alleged that it was denied due process and had a right to know why its base access had been revoked.
In its analysis, ASBCA held that the contractor’s theory–i.e., revocation of its base access was the Government’s way get out of “guaranteed” concrete orders–had no support in the record.
ASBCA further explained that “[i]nstallation access decisions are military command decisions” and “[i]t is well established that the commanding officer of a military base has wide discretion as to whom he or she can exclude from the base.” Given this very broad authority, ASBCA held that it would not question a military commander’s revocation of base access, except in limited circumstances. Specifically, it held:
A determination of installation access is a matter of inherent command authority and is not at the discretion of the contracting officer or this Board. The Board will not question a military commander’s revocation of base access unless appellant can provide substantiated facts to support the contract was terminated to nullify contract rights or to provide the government with economic gain. . . . In this appeal, because there was no required minimum quantity the BSG Commander’s decision to revoke appellant’s base access would not have nullified appellant’s contract rights or provided [the Government] an economic advantage. The fact that the actions of the government entity that controlled base access were beyond appellant’s control is not a valid excuse for non-performance.
If you’re a contractor performing on a military installation, keep this case tucked in the back of your mind. The base commander, essentially alone, decides who comes onto the installation. And if, for whatever reason, your access is revoked and you can no longer perform, the Government may be able to terminate your contract for default.
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