In another CSI Aviation, Inc. decision, the CBCA granted a motion to consolidate appeals involving two agencies, but denied motions to dismiss for lack of jurisdiction, to stay, and to designate the lead agency, partially for the reasons stated in the Board's AVUE Technologies (which had involved two consolidated appeals, one each against HHS and GSA) and in which the Board had denied separate motions by each of the government agencies to dismiss one of the appeals for lack of jurisdiction because, ultimately, the Board would have jurisdiction over one or the other of the consolidated appeals, and the record was not yet sufficiently developed for Board to make that determination:

We have statutory authority to proceed in one of these two appeals. The issue of which appeal is properly before us in the consolidated case has little practical significance for now and is, as a legal matter, neither so urgent that we must decide it now nor so obvious that we can decide it on the existing record.

In High-Tech Launderette LLC, the ASBCA held it lacked jurisdiction over an appeal because: (i) it was in the form of a request for an injunction (a cease and desist order) to prevent the Government from following through on a notice of intent to terminate a contract at a future date; and (ii) the claim was for "approximately" or "in excess of $150,000," which was not a sum certain. In Sweet Star Logistic Service, the ASBCA dismissed an appeal for lack of jurisdiction because the underlying claim did not include a sum certain--specifically, no dollar amount was mentioned in the purported claim.

In CSI Aviation, Inc., the CBCA denied a motion to intervene, as a co-respondent, by the ordering agency (DHS) because the current respondent, the GSA, was the real party in interest to the dispute.

In SRA International, Inc., the CBCA denied the contractor's motion to dismiss the Government's complaints (which, as specifically authorized by the Board, were copies of the Contracting Officer's decisions on government claims). Although the contractor alleged the Complaints were insufficiently specific, the Board found that DCAA audit reports attached to the decisions adequately explained the basis for, and amount of, the claims.

In Woodfield Financial Center, LLC, the CBCA dismissed (for failure to state a claim upon which relief could be granted) the lessor's claim for lost rent as a result of delays caused by alleged Government misdirection during tenant improvements.

In CLC Construction Co., the ASBCA held, inter alia, that: (i) having appealed the Government's default termination, the contractor was not required to file an additional appeal of a subsequent Contracting Officer's decision that espoused a different legal theory but that was based on the same facts the contractor had already disputed; and (ii) the contractor's receipt of the Government's internal cost estimate was not a violation of the Procurement Integrity Act.

In  ITS Group Corp., the CBCA denied the Government's motion to dismiss  a painting contractor's claim for progress payments because, accepting the allegations in the Complaint as true for purposes of the motion, the "claim has facial plausibility" and alleged "factual content" that, if ultimately proved, would permit the Board to find for the contractor.

In Spanish Solutions Language Services, the ASBCA held it lacked jurisdiction over a firm's appeal that was actually a bid protest of an award to another firm.

In U.S. Overseas Housing, LLC, the CBCA held it lacked CDA jurisdiction over an appeal involving the option-to-purchase provisions in  a build-to-lease contract because the dispute involved the purchase of real property.

In Rashid El Malik, the CBCA held it lacked CDA jurisdiction over an appeal by the third party beneficiary of a government contract. 

In Sang Cash Co., the ASBCA held that: (i) a claim for unpaid expenses on a defaulted contract was not barred by the doctrine of res judicata because it was different from the earlier appeal of the default termination; but, nonetheless, (ii) the appeal must be dismissed because the contractor did not present any evidence that it had submitted its underlying claim to the Contracting Officer for a decision. 

In Linda Rujina Co., the ASBCA dismissed a claim because the notice of appeal to the Board predated the claim to the Contracting Officer. The ASBCA also held it lacked jurisdiction over a claim for punitive damages and denied a claim for allegedly extra carpet to be laid because the solicitation accurately depicted the areas to be carpeted, did not guarantee that only a specific amount of carpet would be required, and, most importantly, offered bidders a site visit, an opportunity of which the contractor did not avail itself.

In Parsons Government Services, Inc., the ASBCA held that: (i) the Government's unilateral indirect cost rate determination, which stated it was final, was a Government claim even though it did not include the contractor's appeal rights because the contractor did not claim it was prejudiced by that omission, and the contractor's appeal (which was not filed until more than six months after the 90-day deadline for appeal) was, therefore, untimely; and (ii) the Board lacked jurisdiction over the contractor's claim for interpretation of the contract's terms because, according to the precedent established by the CAFC in the Securiforce case, the only significant consequence of the claim would be the contractor's entitlement to money, and the claim was not quantified.

In Reed International, Inc., the ASBCA held that claims for reimbursement of fees imposed by Afghanistan on private security firms were time barred because the contractor did not file the claims until more than six years after the fines were levied (and six years and seven days after its appeal of the fines was denied). 

In NEDA of Puerto Rico, Inc., the CBCA dismissed an appeal because the underlying claim lacked a CDA certification.

In Maviga N.A., Inc., the CBCA dismissed a bid protest for lack of jurisdiction.

In JAAAT Technical Services, LLC, the ASBDA, inter alia, denied the Government's motion to dismiss, holding that: (i) an earlier settlement in a District Court case did not operate as a judicial estoppel of the current appeal because it was not evidence that the contractor "succeeded in persuading a tribunal to accept its earlier position"; and (ii) the Severin doctrine did not bar a pass-through of the subcontractor's claim because the prime's claim was not not solely a breach claim but also was based on a "Changes" clause theory. 

In JAF Supply, Inc., the CBCA held it lacked jurisdiction over an emailed appeal received by the Board 91 days after the contractor received the Contracting Officer's decision. In DCX-CHOL Enterprises, Inc., a case whose facts are more complicated than its holding, the ASBCA granted the Government's motion to dismiss because the contractor failed to timely appeal the Contracting Officer's decisions default terminating two contracts. In JAF Supply, Inc., the CBCA dismissed an appeal filed one day late.

In Miami-Dade Aviation Dept., the CBCA held: (i) it lacked jurisdiction over the appeal of uncertified claim in excess of $100,000; and (ii) another claim was barred by the six-limitations limitations period because it had "accrued" when the contractor invoiced the Government for the disputed space and Government refused to pay the invoiced amount.

In Anis Avasta Construction Co., the ASBCA held that the contractor's claim for payment accrued on the date the contractor notified the Government the contract work was completed but was not filed until more than seven years later and, thus, was barred by the CDA's six-year limitations period. Subsequently, the Board denied the contractor's request for reconsideration.  

In Doubleshot, Inc., the ASBCA denied the contractor's motion to dismiss the Government's claim for an alleged overpayment as time-barred, holding that the contractor's lack of an accounting system prevented the Government from ascertaining its claim amount in a sum certain. Subsequently, the ASBCA denied the contractor's motion for reconsideration. 

In RocJoi Medical Imaging, LLC, the CBCA held, inter alia, that a claim for defective estimates is not cognizable under a contract containing the standard "Indefinite Quantity" clause.  

In Kostas Greek Food - Zorbas, the ASBCA held that, although it lacked jurisdiction over a request that the Board extend the performance of a terminated contract, a letter by a pro se litigant to the Board adequately conveyed the contractor's intent to appeal the termination decision and, therefore, the Board had jurisdiction over that portion of the appeal. 

In Haakenson Electric Co., the ASBCA held the contractor failed to establish that the quality control manager who signed an email the contractor claimed was a notice of appeal (but which apparently was intended only as a request for documents) was authorized to file the appeal.

In Constellation NewEnergy, Inc., the ASBCA held that a claim incorporating an earlier change order request (which had proposed two alternative amounts for recovery) adequately stated a sum certain because the Contracting Officer's decision indicated her correct understanding that one of the two alternatives had been eliminated by intervening events and, on appeal, the contractor was seeking to recover only the amount the Contracting Officer failed to approve from the remaining alternative.

In MAC Electric Inc., the ASBCA held it lacked jurisdiction over what the contractor contended was a non-monetary claim seeking a determination of the date of substantial completion for work on a task order, but which was based on the assertion that the contractor was entitled to delay costs and, therefore, should have been quantified in a sum certain when originally submitted to the Contracting Officer.

In VOX Optima, LLC, the ASBCA held it lacked jurisdiction over an appeal seeking to recover proposal costs for the Government's alleged breach of the fair opportunity to compete clause in an IDIQ contract because it was essentially a bid protest. The Board also dismissed appellant's second ground for recovery because it did not identify any contract on which it based its argument of breach by detrimental reliance. 

Changes/Constructive Changes/Contract Interpretation/Breach/Authority

In Club Car, Inc., the ASBCA found for the contractor on the pleadings because the undisputed facts established that the contractor delivered all items ordered within an indefinite quantity contract's ordering period and was not required to deliver replacement batteries ordered outside that period.

In Alutiiq Commercial Enterprises, LLC, over a vigorous dissent by the judge who had drafted the original opinion, the ASBCA held that a contractor was entitled to an equitable adjustment for a new collective bargaining agreement not finalized until after an option exercise date because the Government had not given the preliminary notice of the option exercise to the contractor's employees' collective bargaining agent as required by FAR 22.1010. 

In Matcon Diamond, Inc., the ASBCA denied a claim for Eichleay home office overhead delay damages damages because: (i) the contractor failed to show there was a critical path or that the Government's actions impacted it; and (ii) the claim was barred because it was not presented prior to final payment. 

The ASBCA sustained an appeal for extra costs by Command Languages, Inc. d/d/a CLI Solutions because the contractor's interpretation of a contract requirement concerning technical manuals that was not patently ambiguous was reasonable whereas the Government's interpretation (a) was not reasonable, (b) conflicted with the Government's actions before the dispute arose, and (c) was not communicated to the contractor until after the dispute arose. 

In Future Forest, LLC, the CBCA held that statements by government employees expecting larger quantities to be available did not create an enforceable obligation by the Government to provide more than the minimum required quantity in an IDIQ contract.

In Korea Engineering Consultants Corp., the ASBCA held that the contractor was not entitled to extra compensation for its late retrieval of leased equipment because the delays in access to the site were caused by local protesters, not by the Government. 

In Crowley Logistics, Inc.,  a decision involving detailed analyses of the concepts of authority and ratification, the CBCA held that (i) although the Government official with authority only up to $25 million lacked authority to sign a contract modification increasing an IDIQ contract's ceiling amount by $96 million (and adding 100+ line items), (ii) the Government had implicitly ratified the modification, thereby entitling the contractor to enforce it according to its terms.

In Watts Constructors, LLC, the ASBCA held that: (i) a section of a construction contract's specifications clearly required all electrical wiring to be run through rigid conduit, thereby precluding the use of metal clad (MC) cable, even though that cable, along with other types of cable not to be used in the contract, had been mentioned in superfluous boilerplate contract language; (ii) the failure of the Government's inspectors early in the contract to object to the subcontractor's installation of MC cable did not alter the meaning of the unambiguous contract requirement to use conduit; and (iii) the  inspectors' erroneous belief that MC cabling was acceptable did not constitute a knowing waiver of the contract requirement, especially where the Contracting Officer never waived it. That last holding, while probably tough for contractors to swallow, is, for that very reason, good for them to know.  

In HPI/GSA-4C, L.P., the CBCA granted the contractor's entitlement to its claim for unpaid rent under a lease because the lessee (the GSA) failed to give the 180-day written notice of its intent to terminate required by the lease agreement, and a separate eminent domain stipulation document between the GSA and the State of California, which had been mailed to the contractor, did not constitute the required notice of termination (the lessor was not a party to it, and it did not mention termination. In a subsequent decision on the same appeal, the CBCA held that: (i) the GSA had failed to present evidence that the condemnation settlement agreement between the lessor and California included compensation for any rental claimed by the lessor in the current appeal; and (ii) the lessor was not entitled to a Prompt Payment Act recovery in a situation where the payment was disputed and the CDA's interest provision applied.

In Pernix Serka Joint Venture, the CBCA rejected the contractor's theories of cardinal change, constructive change, and constructive suspension of the work, holding that, in a firm fixed-price contract, the contractor was not entitled to extra costs incurred as a result of an epidemic, i.e., costs not attributable to the Government's actions.  

In CKY, Inc., the ASBCA held that: (i) inconsistencies between a contract note on which the contractor's interpretation relied and other provisions of the contract (a) created a patent ambiguity concerning a task order's period of performance about which the contractor should have inquired before contracting and, therefore, (b) barred its recovery on its theories of a Differing Site Condition and mutual mistake; however, (ii) the excessive discharge of water by two previously undisclosed culverts after heavy rains was a Type I Differing Site Condition for which the contractor could recover.

In Aero Tech Service Assocs., a decision involving contract interpretation, the ASBCA held that: (i) the contract unambiguously established that "vendors" were encompassed by term "subcontractor"; and (ii) the contractor's contrary interpretation was not within the zone of reasonableness and, therefore, did not establish an ambiguity or allow the Board to consider extrinsic evidence.

In AISG, Inc., the ASBCA denied the contractor's claim for costs it incurred before beginning construction work because: (i) the Government did not prevent the contractor from accessing the site, and the contractor's speculation that locals might have objected violently to its presence was unavailing absent evidence (a) of any such actions or (b) that the contractor had even tried to enter the site; (ii) the contractor failed to establish the elements required to prove a differing site condition; and (iii) the Government was not obligated to make a change requested by the contractor and did not prevent the contractor from performing during an alleged period of delay.

In East Coast Repair & Fabrication, LLC, a decision involving contract interpretation, the ASBCA held that the contractor had not proved entitlement because the contract did not specify an inadequate amount of steel to be purchased by the contractor, and the Government was not responsible for the steel shortage. 

In Valerie Lewis Janitorial, the CBCA held that: (i) where the contract did not specify any particular method of cleaning, the Government's direction that the contractor switch from one-step to two-step aseptic cleaning was a constructive change, especially where the Government's own study concluded the two-step cleaning method increased the contractor's time required for the work; (ii) a solicitation amendment, which (a) revised the SOW, (b) was acknowledged by the contractor at the time it was issued, and (c) was referenced in the final contract document, became part of the contract even though (a) the contractor later claimed only to have received its cover page and (b) the final contract SOW language was not revised to reflect the changes in the amendment; and (iii) the Government's counterclaims must be denied because each of them ignored agreements or understandings reached between the contractor and the Government during performance.

In Alderman Building Co., which involved a claim for Eichleay unabsorbed overhead for government-caused delays, the ASBCA held, inter alia, that (i) the Severin doctrine did not bar a sponsored claim by the subcontractor because there was no "iron bound" release of claims by the sub against the prime; (ii) the unabsorbed overhead claim, which was less than $50,000 when submitted to the Contracting Officer, need not be certified even if, during litigation, an amount was added for an expert's reports prepared in support of litigation; (iii) the contractor reasonably kept its workers on standby during the delay period due to (a) the threat of liquidated damages in the absence of a time extension by the Government and (b) the risk of the unavailability of qualified workers to rehire when the delay period ended; (iv) the contractor was unable to obtain sufficient replacement work during the period of delays to overcome the disruptive effects of those delays; and (v) there was no basis in law to award the contractor "direct costs of standby" in addition to its Eichleay recovery. 

In Supreme Foodservice, GmbH, a decision involving complicated questions of which party was the claimant and which bore the burden of proof, the ASBCA held, inter alia, that: (i) the contractor had the burden of producing evidence to the Board in support of the costs claimed by the contractor in its REA, even though the appeal involved a Contracting Officer's decision demanding repayment of alleged overpayments; (ii) the Government could not assert both a government claim and affirmative defenses as to the same issue because that would amount to a "heads we win, tails you lose" situation; (iii) as to the contractor's claim for CDA interest, the Government did not waive its first material breach defense by continuing with the contract work for years after first learning of the contractor's fraud because the contractor was on notice that the Government was reserving its rights, and proceeding with the contract work was the only commercially practicable choice for the Government; and (iv) the Government's allegation that the contract was void ab initio must be rejected because, inter alia, if the contract were void, the Board would not have jurisdiction over the Government's contract claims. Subsequently, the contractor's motion for reconsideration was denied.

In Horton Constr. Co., the ASBCA examined the history of the contract and concluded that the individual that had signed a final release of claims on behalf of the contractor had the actual (and apparent) authority to do so.

In GSC Constr., Inc., for various reasons, including accord and satisfaction, the ASBCA granted most parts of the Government's request for summary judgment as to various changes and delay claims by a design and construction contractor. 

In Professional Management Consulting Services, LLC, which involved issues of contract formation and interpretation in a situation where several terms of the ordering agency's purchase order under a GSA Schedule contract differed from the contractor's offer, the ASBCA held, inter alia, that: (i) it had jurisdiction over an appeal involving a claim that had been submitted to the ordering agency's Contracting Officer rather than the GSA Schedule Contracting Officer because the purchase order, not the Schedule, formed the basis of the agreement between the parties; and (ii) under the contract interpretation principle giving specific provisions precedence over conflicting general provisions, the purchase order was a fixed-price order that did not give the Government the right to unilaterally reduce the price for a nonconforming item it had accepted.

In Hamstra Chico LLC, the CBCA denied the contractor's request to reform a fixed-price contract based on the allegation that, during precontract negotiations, the agency had improperly failed to notify the contractor that its proposed price for electricity was a deficiency, because the agency was not aware of any error in the proposed price prior to award and the solicitation requirement underlying the price was clear.

In 3 Daughters Painting Co., LLC, the CBCA held that the buyer of a used vehicle at a GSA auction had waived its right to claim the vehicle was misdescribed by bidding without having inspected it, even though the buyer had been provided only a very limited window within which to inspect.

In ECC International, LLC, the ASBCA denied a claim despite all the contractor's arguments because, basically, the method of construction adopted by the contractor's sub, which differed from the contract standards, was not communicated to the Government prior to its implementation, as was required by the task order.

In APTIM Federal Services, LLC, which involved a CPFF contract, the ASBCA held that: (i)  under the Fixed Fee clause (FAR 52.216-8), which provides, inter alia, that  "[t]he Government shall pay the contractor for performing this contract the fixed fee specified in the Schedule," the contractor was not entitled to obtain fee in excess of the amount specifically obligated for fee by a contract modification; and (ii) the same contract modification authorized only a particular scope of work, so the contractor was not authorized to perform beyond that scope or to obtain reimbursement for costs in excess of the amount obligated by the modification. 

In Collecto, Inc. dba EOS CCA, the CBCA denied multiple grounds in cross motions for summary judgment, most on the basis of unresolved factual disputes, but also held there was no implied-in-fact contract because there was an express contract covering the same subject.

In Aspen Consulting, LLC, the ASBCA held that the Government did not breach a contract by directing payments to a bank account identified by a company representative who had the apparent authority to do so.

In Mark VII Enterprises, Inc., the PSBCA held that in a firm, fixed-price contract, the contractor was responsible for its subcontractor's costs of  a CCTV systems because the contractor failed to inquire concerning a patently ambiguous specification prior to bidding.

In Carlos Valdes and Dulce Valdes, the PSBCA held that the Postal Service was entitled to recover its costs of repairing hurricane damage to a leased building after the lessors failed to promptly repair it when requested to do so by the Postal Service. Subsequently, the Board granted in part and denied in part the contractor's motion for reconsideration

In Alistiqama Co., the ASBCA denied a claim because (although the Government clearly had failed to return leased equipment in a timely manner) the contractor had signed a general release.

In Trade West Construction, Inc., the ASBCA held, inter alia, that the Government had waived its objection to the contractor's alleged failure to provide the 20-day notice of a change required by the "Changes" clause by failing to raise the objection in the Contracting Officer's decision or as an affirmative defense after the appeal.

In MPG West, LLC, an unsuccessful appeal, the ASBCA held that: (i) the contractor had failed to prove that the Government's quantity estimates in a requirements contract were negligently prepared; (ii) IG reports, while admissible as evidence, did not establish that the Government had breached the contract; (iii) the terms of this particular contract permitted the Government to order from sources other than the contractor so long as the contractor remained the "primary" source; (iv) in this context, the Government's weekly pricing review of the contractor's catalog pricing and the Government's approval of the vast majority of the catalog items coupled with its stated reasons (which had a rational basis) for questioning a few of the item prices as unreasonable did not breach the contract (the primary source of the contractor's problems being its failure to implement a local sourcing plan and its underestimation of the difficulty of the contract work); and (v) none of the above actions constituted a constructive change. Subsequently, the contractor's motion for reconsideration was denied.

In Granite Construction Co., the ASBCA held that days of anticipated severe weather during a suspension of work pursuant to FAR 52.242-14 do not reduce any compensation that may be owed to the contractor under that provision.

In KF&S Corp., the ASBCA denied a claim seeking to recover for an increase in South Korea's minimum wage occurring during performance of a contract for security guard services in that country because the contract did not contain any provisions authorizing price adjustments due to labor changes and no such clauses were mandatory for inclusion in the contract.

In Harry Pepper and Assocs., Inc., the ASBCA held, inter alia, that language in a modification limiting a release to a particular change ("the above change") did not operate as an accord and satisfaction of any other claims. 

In immixTechnology, Inc., on behalf of Software AG Government Solutions, Inc., which involved a partially successful claim, the CBCA held that the contractor (on behalf of the subcontractor who developed the software) was entitled to compensation for over-deployment of certain software by the Government beyond what was contemplated by the software license in the contract.

In The Boeing Co., the CBCA denied the contractor's motion for summary judgment that it was entitled to indemnification for the costs of defending two lawsuits alleging that the plaintiffs had suffered from illnesses caused by the release of radioactive materials from a facility owned by the contractor in which it had performed various government contracts, where both suits had been resolved without any finding or admission of public liability, because the record did not establish the occurrence of a "nuclear incident" as an undisputed fact, and the Board did not find that DEAR 952.250-70 provides for indemnification based only on an allegation of "public liability.

In Philips Lighting North American Corp., the ASBCA, inter alia, held that: (i) the Government had breached the contract by failing to pay the contractor's invoices for installment payments; and (ii) the Board lacked jurisdiction over the Government's claim for liquidated damages because the Contracting Officer had not issued a decision on that claim. Subsequently, the Government's request for reconsideration was denied.

Terminations/Liquidated Damages/Government Claims

In Puma Energy Honduras, S.A. de C.V., the ASBCA upheld a default termination for failure to deliver because the late payment of government invoices triggered the contractor's internal dispatch system to automatically block further deliveries (but did not render the contractor financially incapable of performing).

In NVS Technologies, Inc., interpreting the "Limitation of Funds" clause of an incrementally funded contract, the CBCA held that: (i) the contract expired once funds were discontinued and the contractor had received all the allotted funds, and the Contracting Officer's subsequent Termination for Convenience was specifically permitted by the clause; and (ii) the contractor failed to meet the high standard of proof required to support its allegations of bad faith in the decisions to discontinue funding and terminate the contract. 

In Axxon International, LLC, the ASBCA upheld a termination for default because: (i) the contractor failed to deliver by the extended delivery date established in a show cause notice and failed to make accelerated payments to its small business subcontractor as required by FAR 52.232-40 after having received such payments from the Government; and (ii) the default was not excused by the Government's refusal to comply with the contractor's instructions to direct payments to the subcontractor because the contractor had not complied with the requirements of FAR 32.802 to effectuate an assignment. 

In DCX-CHOL Enterprises, Inc., the ASBCA denied the Government's motion for summary judgment upholding default terminations because  there were disputed issues of material fact concerning the contractor's allegations that its late deliveries were excused by defective specifications.  

In Catherine Kurkjian, the ASBCA held that: (i) the Government's decision that the base year's contract work was substantially complete coupled with the Government's (still standing) offer to pay the small remaining amount that would have been owing had the contractor completed the base year's worth of contract hours did not amount to a termination and, even if it had, the amount the contractor had been paid plus the amount the Government had offered to pay would have been the maximum recovery available;  and (ii) the decision not to exercise the option was motivated by concerns with the contractor's troubling and erratic personal behavior, not whistleblower retaliation, and, therefore, did not amount to bad faith. 

In Mayberry Enterprises, LLC, the CBCA held that an assignment of the contract funds by a contractor to a surety (which the Government elected to recognize) was enforceable, and, therefore, the surety had a right to receive, and to determine the appropriate distribution of, the contract funds following a default termination of the contractor. 

In Odyssey Int'l, Inc., the ASBCA began the "Decision" section of its opinion by granting the Government's motion for summary judgment that a default termination of a construction contract was justified by the contractor's unexcused inability to obtain the required bonds, but then the Board spent the remainder of its opinion seemingly arguing against its own conclusion.  

In Ken Laster Co., the ASBCA held that the contractor failed to prove Government interfered with its work or required it to perform excessive inspections and, thus, rejected its claims that excusable delays entitled it to relief from an assessment of liquidated damages. 

In Aerospace Facilities Group, Inc., the ASBCA upheld a default termination because the contractor did not provide the contract items on time due to its failure to pay its subcontractor for the items (which it could have done with its own corporate funds but chose not to) and did not offer a valid excuse for its failure to deliver. 

In Carmazzi Global Solutions, Inc., the CBCA upheld three terminations for cause because the contractor failed (i) to respond to the Government's motion for summary judgment or (ii) to identify any disputed material facts. 

In U.S. Coating Specialties & Supplies, LLC, the ASBCA upheld a default termination, concluding that: (i) the contractor failed to prove the existence of an implied-in-fact oral agreement to terminate the contract for convenience because there was no evidence of mutual intent and insufficient evidence of an offer and acceptance; (ii) the rejection of the contract in bankruptcy and the contractor's failure to make progress on critical path items established prima facie grounds for the default termination; (iii) the fact that a major subcontractor walked off the job because the prime failed to pay it did not excuse the prime's default; (iv) the Contracting Officer's reluctance to meet with the prime absent assurances from the bonding company that it approved of a contract assignment to a replacement subcontractor was reasonable and did not excuse the default; and (v) the contractor failed to offer specific evidence to overcome the presumption that the Government's officials acted in good faith in terminating the contract. 

Previously, in Exceed Resources, Inc., the ASBCA held that a bilateral modification terminating a contract and limiting the contractor's recovery to phase-in costs barred the contractor's subsequent claim for breach damages. Now, the contractor's motion for reconsideration has been denied. 

In GSC Construction, Inc., an unsuccessful appeal of the default termination of a construction contract, the ASBCA held, inter alia, that: (i) the Government did not waive the contract's due date by forbearing from default terminating until the contractor missed a later completion date it had promised in response to a show cause notice where the Government had expressly disclaimed that it actions constituted a waiver; (ii) even if there had been a waiver, the termination was justified when the contractor failed to perform by the extended completion date it had promised to meet; and (iii) contemporaneous evidence established overwhelmingly that contractor (justifiably) blamed its subcontractors for the delays that resulted in the termination and undermined the credibility of contrary positions the contractor (and its expert witnesses) subsequently took on appeal. 

In Eagle Peak Rock & Paving, Inc., the CBCA overturned a default termination because the Contracting Officer had failed to consider some of the factors at FAR 49.402-3(f) in making the termination decision. Specifically:

With two full seasons remaining on the contract, the contracting officer here failed to consider “the urgency of the need for the . . . services [described in the contract] and the period of time” that another contractor would have required to complete the remaining work on the contract compared with the date by which [the contractor] could have completed performance under the contract. 

In John's Tile and Carpet Service, the ASBCA upheld the termination for cause of a contract for the installation of carpet tiles in a building on a military base because photographic evidence showed the work was defective and the contractor failed to provide any evidence excusing the failure to perform. Being fussed at is not a valid excuse for nonperformance:

[The contractor] states that when all of the items that [the Government's point of contact] wanted reworked were completed, she was asked to and did perform an inspection. Upon completion of that inspection, [the contractor] relates that she yelled at him in front of several people, stated that he would get no money for the work because she was not satisfied. Thereafter, according to [the contractor], she ordered him to leave the base or else she would have him removed by the military police. 

In Molly Jessie Co., the ASBCA upheld a default termination based on the contractor's failure to submit documentation (e.g., an Accident Prevention Plan) required by the SOW and rejected the contractor's unsupported contention that the disputed requirements were only appropriate for larger contracts. In another appeal involving the same contractor, the Board upheld a default termination for failure to make progress after the contractor, citing wet conditions that made the work more difficult, refused to complete the contract work absent additional funding from the Government:

Mostly appellant's Rule 11 brief talks about how difficult it was to work on the site and that to perform the work it had agreed to perform and at a price it had agreed to for such work was not possible. The record is clear that the site had days when the ground was wet. But it was not always wet. . . . Appellant performed no work subsequent to May 22, 2019, and frankly we are not convinced on this evidence that it could not work on many of those days prior to termination, it was just too costly to perform and that is not the fault of the government. 

Costs / CAS

In Starwalker PR LLC, the ASBCA held that: (i) it had jurisdiction because the Government had (in a bilateral modification) recognized the assignment of the contract to the appellant, thereby waiving any technical noncompliance with the requirements of anti-assignment statutes; but (ii) the appeal (which was not explicitly bifurcated into entitlement and quantum phases) must be denied because the contractor had failed to present any evidence of quantum. A concurring opinion disagreed with the hearing judge's reasoning on quantum but concluded the appeal should be denied on the merits. 

In CDM Constructors Inc., the ASBCA held that the contractor failed to establish the baseline from which to calculate its excess costs and, therefore, failed to prove the quantum of its claim. Subsequently, the Board denied the contractor's motion for reconsideration.