History was made in November when the Armed Services Board of Contract Appeals traveled to Afghanistan for a first-ever warzone hearing.
Transatlantic Programs Center Assistant Counsel Robert McKenney was the lead attorney on this historic case representing the U.S. Army Corps of Engineers.
“This was a good learning experience because this was my first hearing that I conducted,” said McKenney. The hearing was against a small company called Tawazuh Commercial and Construction. The hearing was originally scheduled in the states, but when the Tawazuh representatives were unable to obtain visas it was moved to Afghanistan.
The ASBCA rules state the board determines the location of a hearing “to best serve the interests of the parties and the Board.”
The company appealed a decision by USACE to terminate its contract due to poor performance in 2006. McKenney explained a terminated contract with a government agency is a serious maer for contractors because it is difficult to pursue future contract awards.
Counsel and Chief Legal Officer for TAC Derek Santos said having a contract terminated for default is rare. He explained the road project under contract was small and USACE did not believe the Tawazuh Company would take legal action for termination.
“It was surprising to see that it turned out to be such a long, ongoing legal issue,” said Santos. Santos said he was in Afghanistan when the initial claim was filed and he draed a decision on it then. He said the claim was handled by TAC, which handles appeals for the Afghanistan Engineer District and Gulf Region Division.
“Rob McKenney really did the bulk of the work in terms of doing the review and puing together the case materials in preparation for the trial,” said Santos.
Santos said McKenney was the one to sign off on all the legal documents filed with the board and prepared legal arguments and analysis in support of the USACE decision to terminate for default.
McKenney said the appeal was important, which is why he traveled to Afghanistan for the hearing. “It is just interesting to be part of the first hearing like this,” said McKenney.
According to Santos, McKenney is one of the senior attorneys in TAC. He commended McKenney for his initial work in Afghanistan when he was a member of the team that established the Corps organiation there.
“He is a stellar attorney who has served as a mentor to the junior aorneys at TAC,” said Santos. The trial took place in Kabul, Afghanistan, in a gymnasium on the compound over three days. McKenney worked with AED attorneys Al Faustino and Dale Holmes on the case.
“My role in the hearing was to take part in the witness preparation, witness examination and crossexamination and submit the post-hearing brief,” said McKenney.
Other parts of his preparation included coming up Transatlantic Times 5 with questions, reviewing documents, witnesses’ familiarity with file documents and ensuring he had a good grasp of all the facts.
Since this was the first hearing of its kind, McKenney said there was plenty of room for trial and error.
Some of the logistical challenges McKenney and his team faced included making travel arrangements for the judge.
“The ASBCA did not really know how to go about traveling to Afghanistan so we worked with the deployment center and logistics to make sure we could get everything set up for them.”
McKenney and his team handled visas, travel and hotel arrangements and coordinated the USACE Deployment Center procedures to accommodate ASBCA Judge Paul Williams.
The Board typically provides a court reporter, but in this case they chose not to send one to the warzone. McKenney said his team was fortunate to be able to use the services of Sgt. 1st Class Deborah McKinney, senior court reporter. She is based with the 101st Airborne Division out of Fort Campbell, Ky. “She should be commended because she actually extended her tour in Afghanistan just to do the court reporting for this case.”
McKenney and his team made sure AED security performed background checks on the representatives for the construction company, to allow a smoother transition on the AED compound for the hearing.
Another obstacle during the hearing was the language differences between the representatives for USACE and Tawazuh.
“We got an individual who was very good, who was fluent in Dari, Pashto and English,” said McKenney. “We were very conscious of the fact that whatever translator we got, the Tawazuh representatives had to feel comfortable with him and that he was really translating what they were saying.”
All government contract disputes are through U.S. law. McKenney said Williams did a good job of allowing the Tawazuh representatives plenty of time to present their case, because there was an assumption that they lacked knowledge of American law and some lacked a strong grasp of the English language.
“Judge Williams exercised extraordinary consideration, understanding that we were dealing with untrained lawyers, untrained legal personnel so he gave them great latitude on how to present their case,” said Faustino in an interview on the trial located on dvidshub.net.
Faustino said it is important for the Afghan people to understand the concepts of the American justice system.
McKenney said the judge wanted to make sure the Tawazuh representatives received a fair trial. “It was clear when the trial was concluded that the company representatives believed they had been heard in court,” McKenney said.
The Tawazuh representatives also made clear that they valued the Corps’ efforts in Afghanistan. “In fact when it was all over, several of the Afghan locals came up to all of us lawyers and told us that they appreciated us coming to this country to help rebuild,” Holmes said on the video.
This particular hearing was conducted like any other ASBCA hearing even due to the circumstances.
Williams said the ASBCA was conducting a normal trial even with the change of venue and that the ASBCA made sure the Tawazuh had the right to a fair trial.
The case that took place was nothing out of the ordinary, but where it took place was important. “The significance of the case really was the fact that a hearing was done in a warzone,” said McKenney. “This can be seen as an example for how these types of trials will be conducted down the line, especially for AED and GRD.”
McKenney said a decision on the case should be made in the fall.
According to McKenney, the contract was for the construction of 40 kilometers of road in the Kandahar area in Southern Afghanistan. The contract was awarded by the Kandahar Regional Contracting Center on behalf of the 864th Engineering Baalion in December 2005. USACE was asked to take over the work in March 2006, including the administration of the contract. Shortly thereaer they terminated the contract for default, which was appealed by the Tawazuh. A contractor has the option to appeal, either to the Court of Federal Claims or the ASBCA.