ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                 )
                                             )
HK&S Construction Holding Corp.              )      ASBCA No. 60164
                                             )
Under Contract No. W912WJ-14-C-0020          )

APPEARANCES FOR THE APPELLANT:                      John A. Dorsey, Esq.
                                                    W. Mark Russo. Esq.
                                                     Ferrucci Russo P.C.
                                                     Providence. Rl

APPEARANCES FOR THE GOVERNMENT:                     Michael P. Goodman, Esq.
                                                     Engineer Chief Trial Attorney
                                                    Ryan T. Killman, Esq.
                                                     Engineer Trial Attorney
                                                     U.S. Army Engineer District, New England

               OPINION BY ADMINISTRATIVE JUDGE MC IL MAIL

                                FINDINGS OF FACT

        In September 2014, the government contracted with appellant for repairs to a
breakwater - which the parties also call a ''jetty" - that sticks out from a beach on
Block Island, Rhode Island (R4, tab 2; tr. 1/30). Most of the job consisted of stone
work (R4, tab 2 at 3-8). The contract required completion of the work, including
demobilization, by March 31, 2015 (id. at 19, § 1.1 (d) ). Some of the areas within the
limits of the work were under the control of the Block Island town of New Shoreham;
the government coordinated agreements with the town for appellant to be able to access
those areas (tr. 1/70-72). On March 13, 2015, the government sent appellant a "show
cause" letter advising that it was considering terminating the contract for default
because of appellant's "failure to perform within the time required by the terms of [the
contract]" (R4, tab 10 at 1). In response, on March 23, 2015, appellant made a number
of excuses, including arguing that it was entitled to seven days of delay due to bad
weather, and concluded by telling the contracting officer that it would not be able to
complete the work until May 30, 2015 (R4, tab 11 at 4 ).

       In April 2015, appellant agreed with the government to extend the performance
period to May 1, 2015, through a bilateral contract modification (R4, tab 13 at 1-2). A
few days before that agreement, the contracting officer told appellant that she was
"currently pursuing additional extensions of real estate agreements beyond 1 May 2015
with the town" but that the town was "extremely hesitant to grant any extensions without
additional information/assurances" (R4, tab 12 at 1-2). The contracting officer
concluded that she did "not contemplate further period of performance extensions," and
that although her office would "continue to explore the possibility of additional
extensions to the real estate agreements beyond 1 May 2015." appellant '·must be
prepared to be fully demobilized by I May 2015, if no extensions are possible·· (id. at 5
(emphasis added)). May 1, 2015, came and went without completion of the \\Ork
(tr. 1/222, 228; app. br. at 8, ,r 27). The crane used by appellant broke on May 10, 2015.
and was never repaired (tr. 1/203-04). On June 5, 2015, the work still not completed
(app. br. at 9, ,r 36), the government terminated the contract for default (R4. tab 1).

                                      DECISION

        Appellant wants us to convert the default termination to one for the
convenience of the government. Appellant did not complete the work by May 1, 2015,
but appears to be saying that the government has not proven default because the
contracting officer (it says) decided to terminate the contract for default without fully
analyzing how much work was left to do and how much time had been lost to weather
delays ( app. br. at 10-11, 13 ). We disagree. Because appellant did not complete the
work by the May 1, 2015, contract completion date, appellant defaulted. See Truckla
Services, Inc., ASBCA Nos. 57564, 57752, 17-1 BCA ,r 36,638 at 178,444. However
the contracting officer arrived at her termination decision, the government may rely
upon appellant's failure to do its job to justify the termination. See Joseph Morton Co.
v. United States, 

, 1277 (Fed. Cir. 1985); see also DCX, Inc. v. Perry,
79 F .3d 132, 135 (Fed. Cir. 1996) (holding that factors contracting officers must
consider before terminating contracts are not prerequisites to a valid termination).

       Now it's up to appellant to demonstrate that its default is excused. See Joseph
Sottolano, ASBCA Nos. 59081, 60043, 16-1 BCA ,r 36,315 at 177,065. Appellant says,
citing De Vito v. United States, 413 F .2d 114 7 (Ct. CI. 1969), that the government waived
the completion date by allowing it to work for about a month beyond the May 1, 2015
contract completion date (app. br. at 19-20). But this was a construction contract, to which
the De Vito waiver would not normally apply ( something appellant does not address), and
we find no unusual circumstances that might trigger its application here (app. br. at 19-24;
app. supp. br. at 3-5). See BYA International, LLC, ASBCA No. 57608, 13 BCA i1 35,196
at 172,696 (discussing inapplicability of De Vito waiver absent unusual circumstances).
Although appellant focuses (app. supp. br. at 3) on the contracting officer's statement that
she would continue to explore the possibility of additional real estate agreement extensions
with the town "beyond 1 May 2015," that was before the parties agreed to the May 1, 2015
contract completion date. Even so, the contracting officer in the same letter also warned
appellant that it "must be prepared to be fully demobilized by 1 May 2015, if no [such]
extensions are possible," indicating that she did not intend to waive the May 1. 2015
contract completion date.

       Although appellant complains that it was delayed by weather, difficulties
obtaining stone, problems with local municipal authorities, and the breakdown of a crane,

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it makes no effort to demonstrate how any of those issues delayed the project's critical
path, preventing completion of the work even by June 5, 2015, the termination date.
much less the extended May 1, 2015 contract completion date to ·which appellant agreed
after encountering most of these issues* (app. br. at 19-26; app. supp. br. at 5-6)). See
Creative Times Dayschool, Inc., ASBCA Nos. 59507, 59779, 16-1BCA136,535
at 177,984 (explaining how to show that delaying items delayed project completion).
Appellant fails to demonstrate that its default is excused.

       The appeal is denied.

       Dated: February 19, 2019


                                               /fiMoTP.ciLMIL                     ---
                                                  Administrative Judge
                                                  Armed Services Board
                                                  of Contract Appeals

 I concur                                         I concur




 RICHARD SHACKLEFORD                              J. REID PROUTY
 Administrative Judge                             Administrative Judge
 Acting 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 No. 60164, Appeal ofHK&S
Construction Holding Corp., rendered in conformance with the Board's Charter.

       Dated:


                                                - - - - - - - ----·--·-----~.
                                                 JEFFREY D. GARDIN
                                                 Recorder. Armed Services
                                                 Board of Contract Appeals


* The breakdown of the crane (which was appellant's equipment and, thus, its
       responsibility) occurred after the May 1, 2015 contract completion date.
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