# West Point Utilities, LLC

> Armed Services Board of Contract Appeals · September 4, 2025

URL: https://www.frixlaw.com/law-library/cases/11138885

## Case

- **Court:** Armed Services Board of Contract Appeals
- **Decided:** September 4, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Woodrow
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- holding that the failure to provide assurances of performance is a breach justifying termination for default

## Opinion text

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
West Point Utilities, LLC ) ASBCA No. 63006
)
Under Contract No. N62473-19-D-1206 )
Task Order No. N62473-20-F-4216 )

APPEARANCES FOR THE APPELLANT: Kirk E. Niemi, Esq.
David B. Wonderlick, Esq.
Varela, Lee, Metz & Guarino, LLP
Tysons Corner, VA

APPEARANCES FOR THE GOVERNMENT: Allison M. McDade, Esq.
Navy Chief Trial Attorney
Sharon G. Hutchins, Esq.
Trial Attorney

OPINION BY ADMINISTRATIVE JUDGE WOODROW ON THE
GOVERNMENT’S MOTIONS TO STRIKE AND FOR SUMMARY JUDGMENT

This appeal arises from a default termination under an Indefinite Delivery
Indefinite Quantity (IDIQ) Multiple Award Construction Contract (MACC) for wet
utilities construction projects. In November 2018, the Naval Facilities Engineering
Command Southwest (NAVFAC or Navy) awarded West Point Utilities, LLC (West
Point) a $249 million MACC covering construction, renovation, and repair projects
across six western states. The dispute centers on Task Order No. N62473-20-F-4216
for water treatment plant repairs at Naval Air Facility El Centro, California, with an
original completion date of September 22, 2021, later extended to May 12, 2022.
Following performance delays and West Point’s responses to cure and show cause
notices, the contracting officer terminated West Point for default. West Point
challenges this termination and seeks conversion to a termination for convenience,
while also alleging additional damages and a breach of its fair opportunity to compete
for future task orders.

This matter comes before us on the Navy’s motion seeking dismissal of
Counts I and II of West Point’s complaint for lack of jurisdiction and for summary
judgment upholding the default termination. We hold that: (1) the Board lacks
jurisdiction over West Point’s claims for monetary damages and breach of fair
opportunity to compete absent certified claims to the contracting officer; and
(2) genuine issues of material fact preclude summary judgment upholding the default
termination. Accordingly, we grant the government’s motion to dismiss for lack of
jurisdiction to entertain the allegations set forth in paragraphs 84, 85, and Count II
(paragraphs 88-91) of West Point’s complaint and, therefore, strike those allegations. 1

Finally, we deny the government’s motion for summary judgment and lift the
stay entered pursuant to our November 29, 2021 Order. The government shall file an
answer to appellant’s complaint no later than 40 days from the date of this decision.

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

1. On November 14, 2018, NAVFAC awarded to West Point - Granite JV,
LLC (West Point) Contract No. N62473-19-D-1206, an Indefinite Delivery Indefinite
Quantity (IDIQ), Small Business Multiple Award Construction Contact (MACC), for
new construction, renovation, and repair of wet utilities construction projects
at various Government installations located in California, Arizona, Nevada, Utah,
Colorado, and New Mexico. The maximum dollar amount for all the contracts
combined was $249,000,000, with an estimated task order range of $300,000
to $20,000,000, and a minimum guarantee of $5,000. (R4, tab 1 at 1)

2. The MACC contract incorporated by reference Federal Acquisition
Regulation (FAR) 52.249-10, DEFAULT (FIXED PRICE CONSTRUCTION)
(APR 1984) (R4, tab 1 at 25). This provision states, in relevant part:

If the Contractor refuses or fails to prosecute the work or
any separable part, with the diligence that will insure its
completion within the time specified in this contract
including any extension, or fails to complete the work
within this time, the Government may, by written notice to
the Contractor, terminate the right to proceed with the
work (or the separable part of the work) that has been
delayed

FAR 52.249-10(a)

3. The MACC contract established task order (TO) terms as follows:
Section 00801(6)(a) provided a base year of 12 months, which the Contracting Officer
(CO) could shorten if the maximum contract amount was ordered earlier. Section
801(6)(b) allowed up to four 12-month option periods for a maximum duration of
60 months or until the estimated maximum dollar value was reached, whichever

1
In a footnote, appellant represents that it will submit a claim requesting an extension
of time for completion of the project (app. opp’n at 2 n.1). However, the record
contains no indication of this, nor is there any indication that appellant has filed
a separate appeal relating to the contract at issue here.
2
occurred first. The Government could exercise these options by providing written
notice during the performance period, with preliminary notice required at least 60 days
before contract expiration. (R4, tab 1 at 72-73) Paragraph 2 of Section 00803 of the
MACC contract also expressly established an opportunity to compete for task orders,
stating in relevant part: “[a]ll awardees will be given a fair opportunity to be
considered for each Task Order unless the Contracting Officer applies one of the
exceptions noted below.” (R4, tab 1 at 80 (emphasis added))

4. The MACC contract established a minimum guarantee of $5,000 to each
awardee, as follows:

The Government makes no representation as to the number
of Task Orders or actual amount of work to be ordered,
however, during the term of the contract, a minimum of
$5,000 is guaranteed to each awardee. Contractors are not
guaranteed work in excess of the minimum guarantee
specified herein.

(Id. at 73)

5. On November 12, 2019, NAVFAC issued Modification No. P0001 to the
contract exercising option period one and extending the term of the MACC contract
for one year, from November 14, 2019, through November 13, 2020 (R4, tab 2 at 38-
39).

6. On March 16, 2020, NAVFAC awarded to West Point – Granite JV, LLC
Task Order No. N62473-20-F-4216, a $14,990,280, firm fixed-price, design-bid-build
project for water treatment plant repairs to Basins 343-348 and 352-353 at Naval Air
Facility El Centro, El Centro, California. The task order specified a completion date
of September 22, 2021. (R4, tab 8 at 54, 56-57).

7. Effective October 6, 2020, NAVFAC and West Point entered into a Change-
of-Name Agreement to recognize the contractor’s change of name from West Point -
Granite JV, LLC to West Point Utilities, LLC pursuant to the July 27, 2020
amendment to West Point – Granite JV, LLC’s certificate of incorporation (R3, tab 5
at 45-46). Later, on October 27, 2020, NAVFAC issued a modification to the MACC
contract, which noted the organizational change and stated that, pursuant to the
Change-of-Name Agreement, NAVFAC would issue all subsequent task orders and
modifications to West Point Utilities (R4, tab 4 at 43-44 (Modification No. P00003)).

8. In a bilateral modification to the task order, on October 29, 2020, NAVFAC
formally changed the contractor’s name to West Point Utilities, LLC, granted a no-cost
time extension of 232 days (with a new completion date of May 12, 2022) due to

3
excusable pandemic-related delays impacting financial reporting and bonding, and
added a clause prohibiting contracting for certain telecommunications and surveillance
equipment. (R4, tab 11 at 716-21 (Modification No. P00002))

9. On November 12, 2020, NAVFAC issued unilateral Modification
No. P00005 to the MACC contract exercising option period two for the period of
performance from November 14, 2020, through November 13, 2021 (R4, tab 7 at 52-
53).

Cure Notice

10. On March 9, 2021, CO Jessica Garrett issued a Cure Notice citing
numerous overdue submittals. The notice warned that failure to address these
deficiencies within ten days risked termination for default. At that time, the
government estimated West Point was 99 days behind schedule. (R4, tab 15 at 731)

11. On March 19, 2021, West Point responded to the cure notice. West Point
acknowledged the project delays, but questioned the need for the cure notice,
proposing instead a revised schedule to meet and requesting weekly collaborative
meetings to address the underlying causes of delay. West Point blamed the delays on
limitations of the Electronic Construction Management System (eCMS) 2 hindering
submittal reviews, differing interpretations of contract requirements regarding pre-
construction environmental mitigation, and an inefficient submittal review process
requiring excessive revisions. (R4, tab 16 at 735-42).

12. The Navy declined to hold weekly meetings involving all NAVFAC
stakeholders as requested in West Point’s March 19, 2021 letter. Although a Navy
engineering technician intermittently attended West Point’s weekly quality control
meetings, the Navy did not notify West Point in advance of his attendance. In
addition, NAVFAC contracting personnel never held a formal meeting with West
Point. (App. opp’n, ex. A, Alley decl. ¶¶ 5-6).

2
NAVFAC eCMS is a “web-based, enterprise project collaboration tool to improve
post-award management of schedules, RFIs, designs, and submittals.” It is
provided by the Navy at no cost to contractor users associated with a project.
See https://www.navfac.navy.mil/Directorates/Planning-Design-and-
Construction/About-Us/Planning-Design-and-Construction -
Documents/Electronic-Construction-Management-System-eCMS/, last visited
August 27, 2025.
4
Show Cause Notice

13. On April 14, 2021, Ms. Garrett issued a show cause notice to West Point.
The notice informed West Point that the government was considering terminating the
task order for default due to ongoing performance issues, which remain unresolved
following the March 9, 2021 cure notice. The show cause notice estimated a current
delay of 86 calendar days, reflecting an improvement of 13 days since the March 9,
2021 cure notice. The show cause notice blamed the delay on delinquent and
inadequate pre-construction submittals. Although the Navy conceded that it had
approved 21 of the 23 required submittals, the Navy blamed West Point’s quality
control for the need to conduct 54 submittal reviews for the submittals, with several
critical submittals, including the schedule, repeatedly being disapproved for not
conforming to contract requirements. (R4, tab 17 at 743)

14. The show cause notice detailed West Point’s alleged failure to meet
contract requirements related to schedule, quality control, safety, and project
management, including an unrealistic schedule, numerous disapproved submittals,
unauthorized mobilization of a job site trailer, inadequate safety documentation, and
lack of response to prior notices. West Point was given 10 calendar days to respond
with any justification for these failures, with non-response considered an admission of
fault, and was advised that liquidated damages of $2,919 per calendar day would be
assessed. (R4, tab 17 at 744-46)

15. West Point responded on April 23, 2021. West Point disagreed with many
of the assertions in the show cause notice and claimed that it omitted key facts. West
Point attributed its initial delays to Granite Construction’s withdrawal from the joint
venture and the contracting officer’s insistence that West Point form a new LLC
to perform the work. West Point acknowledged that two of the 23 pre-construction
submittals remained outstanding, but asserted they were either in the government’s
possession or subject to other agencies’ jurisdiction. West Point placed significant
blame on NAVFAC’s eCMS system for causing delays and inefficiencies in the
submittal process, arguing that technical issues and the government’s piecemeal
review process led to multiple resubmissions. West Point also contended that the
COVID-19 pandemic impacted subcontractor availability and material costs and
contributed to delays. (R4, tab 18 at 748-51)

16. While acknowledging a current projected completion date two months
behind schedule, West Point stated that it could “control its means and methods
through acceleration and concurrent work which will enable it to complete the work
under this Task Order within the time frame shown in the approved baseline schedule”
(id. at 751). West Point further stated that it “remains committed to working with the
Government towards the successful completion of the work under this Task Order,”
and that it was “ready, willing and able to complete this project” (id.).

5
17. In order to get the project back on schedule, West Point retained additional
management personnel and retained an additional subcontractor, Spencer Construction
(app. opp’n, ex. A, Alley decl. ¶ 9).

Termination for Default

18. On May 27, 2021, Ms. Garrett issued to West Point a Notice of
Termination for Default – Contracting Officer’s Final Decision. The decision formally
terminated the contract for default, citing failures in schedule, quality control, safety,
and project management as detailed in the prior show cause notice. (R4, tab 19 at 753)
The government rejected West Point’s explanations for the deficiencies, noting that the
government had issued three more non-compliance notices since the show cause
notice. The CO stated that, since the show cause notice, West Point’s failures
continued, including “failing to provide daily reports in a timely manner,” performing
work “without a Site Safety and Health Officer (SSHO), Quality Control Manager, nor
named Activity Hazard Analyses (AHA) competent person onsite,” and repeatedly
“failing to perform Quality Control (QC) requirements” (id. at 755). The CO further
alleged that West Point demonstrated a “lack of understanding of the work” by
planning to begin demolition of basins prior to dewatering, a critical prerequisite and
that demolition activities prior to dewatering could have caused “unstable ground
conditions” and “catastrophic loss of facility” (id.). The CO argued this oversight,
missed due to deficient QC meetings, risked “injury to construction workers” and
“NAVFAC mission stoppage” (id.). Finally, the letter outlined West Point’s appeal
rights (id. at 756).

19. On June 16, 2021, the CO issued Modification No. P00003 to the task
order terminating it for default based on West Point’s failure to meet contract
requirements (R4, tab 12 at 722-23).

20. On July 21, 2021, a different CO, Tina Collins, sent a notice of intent to not
exercise option period three. The notice further stated that the government would not
be soliciting additional work from West Point during the remainder of option period
two. The notice stated in relevant part:

In accordance with the contract clause FAR 52.217-9
entitled Option to Extend the Term of the Contract
(MAR 2000), it is the Government’s unilateral right
whether to exercise the option under the subject contract.
The purpose of this letter is to inform you that the Option
Period Three for this contract will not be exercised. Also,
the Government will not be soliciting any new work to

6
West Point Utilities LLC during the current Option Period
Two, which will expire on November 13, 2021. 3

21. On August 20, 2021, West Point timely appealed the termination to the
Board, which was docketed as ASBCA No. 63006.

22. On September 24, 2021, West Point filed its complaint, listing two counts
as follows:

COUNT I
(Conversion of Termination for Default to
Termination for Convenience)

***
82. As detailed above, West Point Utilities cured any
alleged defaults cited by NAVFAC and submitted all
required submittals. NAVFAC identified 23 required
submittals but also admitted that, at a minimum, 21 of the
23 submittals had been approved by NAVFAC prior to the
termination for default.

83. West Point Utilities thus was not in default at the time
of termination for the causes identified by NAVFAC.

84. Additionally, West Point Utilities was entitled to
extensions of time for excusable delays, as provided by
FAR 52.249-10(b), including for delays related to
NAVFAC’s non-functional eCMS system, COVID-19, and
other issues to be proven at trial.

85. As a result of NAVFAC’s improper default
termination, West Point Utilities has incurred $540,863.91
in damages it had to pay to Harco, its surety, to reimburse
Harco for the costs it paid to NAVFAC under the tender
agreement. West Point Utilities is entitled to recoup these
costs from NAVFAC in addition to West Point Utilities
termination for convenience costs

3
This document was not included in the Rule 4 file but was provided by West Point as
Exhibit B to its notice of appeal.
7
COUNT II
(Breach of Fair Opportunity to Compete)

***
88. NAVFAC’s refusal to allow West Point Utilities to
participate in future solicitations prior to the expiration of
the second option period and rescinding of a solicitation
previously sent to West Point Utilities violates IDIQ
Contract Section 00803 (Task Order Issuance Procedures),
Paragraph 2 (Competition) as well as Section 00802
(Contract Administration Data), Paragraph 4
(Ombudsman).

89. As described by the ASBCA, the “fair opportunity to
compete” clause is an ongoing obligation of the
Government, which NAVFAC breached when it expressly
refused to allow West Point Utilities to compete on future
proposals. See, e.g., Cmty. Consulting Int’l, ASBCA
No. 53489, 2002 WL 1788535 (Aug. 2, 2002), relying on
Burke Court Reporting Co., DOTBCA No. 3058, 97-2
BCA ¶ 20323. 90. NAVFAC breached the IDIQ Contract
by denying West Point Utilities a fair opportunity to
Compete and denied West Point Utilities the revenue and
profit it could have earned on such projects.

90. NAVFAC breached the IDIQ Contract by denying
West Point Utilities a fair opportunity to Compete and
denied West Point Utilities the revenue and profit it could
have earned on such projects.

91. Accordingly, NAVFAC is liable to West Point
Utilities for the anticipated profits and unallocated home
office overhead it could have obtained had NAVFAC
afforded West Point Utilities the mandatory opportunity to
bid on and perform task orders under the IDIQ Contract.

DECISION

The Navy’s Motion to Dismiss for Lack of Jurisdiction/Motion to Strike

The Navy moves to strike West Point’s assertions, contained in Count I, ¶¶ 82-
84 of the Complaint relating to its excusable delay defense and entitlement to time
extensions, for lack of jurisdiction due to the failure to file a valid claim with the

8
contracting officer (gov’t mot. at 12). Additionally, the Navy moves to strike ¶ 85 of
Count I, relating to $540,863.91 in damages West Point allegedly had to pay Harco, its
surety, for lack of jurisdiction for the same reason as the previously mentioned
paragraphs (gov’t mot. at 15). Regarding Count II, the Navy argues that West Point
failed to submit a proper claim to the contracting officer relating to unspecified lost
revenue, anticipated profits, and unallocated home office overhead costs related to the
Navy’s alleged breach of the “fair opportunity to compete clause” as asserted in ¶¶ 88-
91 of the Complaint. As such, the Navy avers that the Board lacks jurisdiction over
the allegations, and they should be stricken from the Complaint. (Gov’t mot. at 15-16)

West Point counters that the Board has jurisdiction over all of the issues the
Navy seeks to strike. Specifically, it alleges that the government is required to
consider the factors listed in FAR 49.402-3(f) in its decision to terminate a contract for
default, including all excuses relating to non-performance. (App. reply at 6) Thus,
West Point contends that the Board should allow it the opportunity to present evidence
“of both excusable delays, and the [CO’s] failure to consider them, in connection with
the Government’s case-in-chief” (id. at 9-10). Additionally, West Point avers that the
Board has jurisdiction to consider its “fair opportunity to compete” claim because it
arises out of the government claims (e.g. the termination for default and the refusal to
allow West Point to compete for further work under the contract) and a final decision
was issued (id. at 14). The Navy responded that the notice of intent not to exercise the
option was not a government claim and the contract did not guarantee West Point more
than the minimum guarantee (gov’t reply at 9-12).

I. Government’s Motion to Dismiss or Strike Counts I and II of Appellant’s
Complaint

A. Standard of Review

West Point bears the burden of establishing the Board’s jurisdiction under the
Contract Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, by a preponderance of the
evidence. Parsons Global Servs., Inc., ASBCA No. 56731, 11-1 BCA ¶ 34,632
at 170,653 (citing Reynolds v. Army & Air Force Exch. Servs., 846 F.2d 746, 748 (Fed.
Cir. 1988)). West Point must demonstrate that it is more likely than not that the Board
possesses jurisdiction to entertain this appeal.

B. Whether the Board Possesses Jurisdiction to Entertain Appellant’s
Affirmative Defense of Excusable Delay

The government contends that the Board lacks jurisdiction to entertain West
Point’s claims of excusable delay as a defense against the termination for default
without first presenting the delay claims to the CO. Therefore, the government

9
requests the Board dismiss the excusable delay allegations set forth in Count I, ¶¶ 82-
84 of West Point’s complaint. (Gov’t mot. at 12-14)

West Point’s response challenges the merits of the government’s decision to
terminate the contract for default, contending that the government failed to adequately
consider the mandatory factors set forth in FAR 49.402-3(f). West Point argues that
these factors include excusable delay and West Point’s progress in curing deficiencies.
West Point further contends that the CO was aware of problems with the government’s
electronic submittal program and the widespread impacts of COVID-19 and that the
government terminated the contract prematurely despite West Point having a
significant portion of the performance period remaining. (App. opp’n at 4-13, 20
(response to gov’t SUMF ¶ 24), 28-33 (app. statement of additional material facts ¶¶
9.b, 20.b); ex. A ¶¶ 7.b, 19.b)

Specifically, West Point argues that the FAR expressly requires the government
to consider all excuses to non-performance, regardless of whether the contractor is
entitled to a time extension for excusable delay (app. opp’n at 6). FAR 49.402-3(f)
enumerates seven factors that the CO “shall consider,” including “the excuses for the
failure” to perform and “any other pertinent facts and circumstances” (id. at 4-5).
Appellant cites to several cases holding that the CO’s failure to consider these factors
supports converting the default termination into one for convenience (id.at 5-6).

The CDA mandates that contractors submit all contract claims against the
government to the CO for a decision. 41 U.S.C. § 7103(a)(1). Consequently, the
essential element of the Board’s jurisdiction over a contractor’s claim is the
contractor’s submission of a proper claim to the CO for a decision. JAAAT Tech.
Servs., Inc., ASBCA No. 61792 et al., 21-1 BCA ¶ 37,878 at 183,953; Air Servs., Inc.,
ASBCA No. 59843, 15-1 BCA ¶ 36,146 at 176,424. A contractor is required to
submit a certification to the CO for any claim exceeding $100,000. WIT Assocs., Inc.,
ASBCA No. 61547, 19-1 BCA ¶ 37,226 at 181,210. The Board cannot entertain an
appeal that exceeds $100,000 if the claim is not certified. Al Rafideen Co., ASBCA
No. 59156, 15-1 BCA ¶ 35,983 at 175,808; Bell Helicopter Textron Inc. & The Boeing
Co., ASBCA No. 59561, 15-1 BCA ¶ 36,111 at 176,291. Here, West Point admits in
its opposition to the Navy’s motion that it has not presented a certified claim to the CO
asserting the excusable delay defense alleged in its complaint (app. opp’n at 21
(responding to gov’t proposed statement of undisputed facts (gov’t SUMF) ¶ 24))
(stating that “West Point does not dispute that it has not submitted claims as identified
in subparagraphs (b) and (c) of this Paragraph.”).

West Point’s failure to properly assert a CDA claim for excusable delay bars it
from raising excusable delay as an affirmative defense. Under binding Federal Circuit
precedent, a contractor seeking to alter the terms of a contract – such as by obtaining a
time extension – must first submit that request as a certified claim to the CO, even

10
when asserting it as an affirmative defense to a government action. In Maropakis
Carpentry, Inc. v. United States, 609 F.3d 1323 (Fed. Cir. 2010), the Federal Circuit
held that “a contractor seeking an adjustment of contract terms must meet the
jurisdictional requirements and procedural prerequisites of the CDA, whether asserting
the claim against the government as an affirmative claim or as a defense to a
government action.” Id. at 1331 (emphasis added). The Federal Circuit subsequently
applied this rule in the context of a default termination in Securiforce Int’l. Am., LLC
v. United States, 879 F.3d 1354 (Fed. Cir. 2018), overruled, in part, on other grounds,
ECC Int’l Constructors, LLC v. Sec’y of Army, 79 F4th 1364 (Fed. Cir. 2023). While
holding that a defense of prior material breach need not be submitted to the CO, the
court reiterated that any affirmative defense seeking a change in contract terms (like a
time extension) must be presented to the CO first. Securiforce, 879 F.3d at 1363.

The Board has applied the rule set forth in Maropakis and Securiforce to bar
consideration of excusable delays as affirmative defenses to a termination for default.
In ECC CENTCOM Constructors, 18-1 BCA ¶ 37,133 at 180,711-713, the Board held
that a contractor’s failure to submit claims for alleged excusable delays barred
consideration of those delays as affirmative defenses to a termination for default.
Likewise, in Cobeal Consulting Grp., ASBCA No. 63815, 25-1 BCA ¶ 38,742
at 188,340, recon. denied, Slip. Op. July 30, 2025, the Board dismissed appellant’s
claims for damages for increased costs, improper liquidated damages, and several time
extensions in connection with its challenge of a termination for default, on the grounds
that they were not presented to the CO for a decision. See also DCX-CHOL Enters.,
Inc., ASBCA Nos. 61636, 61637, 19-1 BCA ¶ 37,394 at 181,800, recon. granted in
part, 20-1 BCA ¶ 37,483 at 182,068 (striking affirmative delay and constructive
change defenses for failure to present as claims before the CO); Windamir Dev., Inc.,
ASBCA No. 63461, 24-1 BCA ¶ 38,484 at 187,044 (striking affirmative defense of
delay for lack of jurisdiction).

West Point does not attempt to distinguish or contradict the legal authorities
relied on by the government. Instead, West Point raises a host of arguments going
to the merits of the government’s decision to terminate the contract for default (app.
opp’n at 4-12). While an agency’s adherence to the factors in FAR 49.402-3(f)
informs our assessment of whether a default termination constitutes an abuse of
discretion, consideration of these factors is not required for a valid termination. ECC
CENTCOM Constructors, 18-1 BCA ¶ 37,133 at 180,715 (citing DCX, Inc. v. Perry,
79 F.3d 132, 135 (Fed. Cir. 1996)). The regulations do not establish rights for the
defaulted contractor, and a CO’s failure to consider any particular factor does not
necessitate converting a default termination to one for convenience. GSC Constr.,
Inc., ASBCA Nos. 59402, 59601, 21-1 BCA ¶ 37,751 at 183,227. We acknowledge
appellant’s arguments concerning the FAR requirements for termination, but these
contentions go the merits of the government’s claim and are premature at this stage of
proceedings.

11
Because West Point failed to submit a certified claim to the CO regarding
excusable delays, as required by the CDA, the Board lacks jurisdiction to consider
those delays as an affirmative defense against the government’s termination for
default. Based on the fact that only ¶ 84 of the Complaint alleges that West Point was
entitled to extensions of time for excusable delays, we grant the government’s motion
to dismiss for lack of jurisdiction and to strike the allegation set forth in ¶ 84 of West
Point’s Complaint.

C. Whether the Board Possesses Jurisdiction to Entertain Appellant’s
Request to Recoup Money Paid to its Surety

The government next contends that the Board lacks jurisdiction to entertain
West Point’s claim to recoup $540,863.91 paid to its surety, as set forth in ¶ 85 of its
Complaint, because West Point never submitted a certified claim for this amount to the
CO for a final decision (gov’t mot. at 14-15).

In response, West Point admits that it has not submitted a claim to the CO for
the $540,863.91 that West Point paid to its surety (gov’t mot. at 8; app. opp’n at 21
(responding to gov’t SUMF ¶ 24(b)). However, West Point asserts that it is not
seeking those costs at this time, but rather intends to include them in a cost proposal
to be implemented if the default termination is converted to a termination for
convenience (app. opp’n at 13). West Point further argues that the costs paid to its
surety are evidence that the CO failed to properly consider factors set forth in
FAR 49.402-3(f) before terminating the contract – specifically the urgency of the need
and the time required to obtain services from other sources compared to the original
contractor. According to West Point, these costs demonstrate the CO’s abuse of
discretion in the termination decision. Id.

Our analysis focuses on the allegations set forth in West Point’s complaint.
Paragraph 85 of the complaint states:

As a result of NAVFAC’s improper default termination,
West Point Utilities has incurred $540,863.91 in damages
it had to pay to Harco, its surety, to reimburse Harco for
the costs it paid to NAVFAC under the tender agreement.
West Point Utilities is entitled to recoup these costs from
NAVFAC in addition to West Point Utilities termination
for convenience costs.

West Point states in its opposition that it is not seeking these costs in this appeal and
that this statement merely indicates that West Point intends to seek these costs in its
termination for convenience settlement proposal (app. opp’n at 13). The government

12
contends, however, that Paragraph 85 is a claim for money damages that cannot be
sustained without first being presented to a CO.

By asking for the amount of $540,863.91 “in addition to” the termination costs,
paragraph 85 is a straightforward request for money damages. Because West Point
admits that it has not filed a certified claim with the CO for this amount, we lack
jurisdiction to entertain this allegation. Accordingly, we strike paragraph 85 of the
complaint, as well the language in the final paragraph of the complaint asking the
Board “to include the costs West Point Utilities reimbursed to Harco under the tender
agreement…” (Compl. at 16).

We note that our decision to strike the allegations of paragraph 85 from the
Complaint does not prevent West Point from relying upon these factual allegations
to support its defense of the default termination, or from requesting these costs in its
termination for convenience settlement proposal. Moreover, our decision does not
prevent West Point from filing a claim for these costs with the CO.

II. Whether the Board Possesses Jurisdiction to Entertain Count II of
Appellant’s Complaint

A. The Parties’ Arguments

The government next moves to dismiss Count II of West Point’s complaint,
which addresses West Point’s allegations that the Navy breached West Point’s IDIQ
contract by refusing to allow West Point to participate in future solicitations (compl.
¶¶ 87-91). According to the government, the Board lacks jurisdiction over Count II
because West Point failed to submit a claim to the CO requesting a final decision
on its entitlement to unspecified amounts for lost revenue, anticipated profits, and
unallocated home office overhead resulting from that alleged breach. (Gov’t mot. at
15-16)

West Point argues that the Navy’s July 21, 2021 notice, refusing to solicit new
work from West Point during option period two, constructively terminated their IDIQ
contract and constitutes a government claim. West Point contends that this permits a
direct appeal to the Board without a CO claim. (App. opp’n at 14-18, 21) West Point
distinguishes between the Navy’s obligation to award work and its obligation to allow
competition for work (app. opp’n at 15). Citing Community Consulting Int’l, ASBCA
No. 53489, 02-2 BCA ¶ 31,940, appellant contends that the Navy’s refusal to allow
appellant to compete is a triable issue regarding breach of the MACC IDIQ contract
and that the award of a guaranteed minimum did not relieve the government of other
contractual obligations (app. opp’n at 15-16).

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In its reply, the government contends its July 2021 notice informing West Point
it would not solicit further work is not a “claim” under the CDA. The government
bases its argument on the CDA and FAR definition of a claim, which requires a
written demand or assertion as a matter of right for a specific sum of money, an
adjustment or interpretation of contract terms, or other relief stemming from the
contract (gov’t reply at 9 (citing FAR 52.233-1). The government points to Board
precedent where we have stated or found government claims include demands for
refunds, corrective work orders, requests to review records, claims for excess re-
procurement costs, and unilateral contract modifications reducing price (id. at 9-10).
The government argues that the July 2021 notice is not a claim, because it did not
demand a specific action like payment or contract modification, nor was it a final
decision by a contracting officer. Consequently, the Navy contends that West Point
should have submitted a claim to the CO before appealing to the Board. (Id. at 10)

B. Refusal to Solicit Further Work is Not a Constructive Termination if
the IDIQ Minimum Has Been Met

Refusal to solicit further work under an IDIQ contract does not constitute a
termination, constructive or otherwise, as long as the government has fulfilled its
minimum purchase obligation. It is established that once the government meets the
contract minimum set in an IDIQ contract, it has no further legal obligations under the
contract. Varilease Tech. Group, Inc. v. United States, 289 F.3d 795, 800-01 (Fed.
Cir. 2002); Travel Ctr. v. Barram, 236 F.3d 1316, 1319 (Fed. Cir. 2001). Moreover,
as the Federal Circuit held in Varilease, minimum quantities are not required to be
associated with each option period. Varilease, 289 F.3d at 800; see also RJO
Enterprises, Inc., ASBCA No. 50981, 03-1 BCA ¶ 32,137 at 158,907-08 (holding that
minimum quantities in an IDIQ contract are not required to be associated with each
option period). Here, the government ordered more than the minimum quantity of
$5,000 from West Point and has fulfilled its legal obligations under the MACC IDIQ
contract (SOF ¶ 6). Therefore, its stated refusal to solicit additional work during the
remainder of option period two does not constitute a constructive termination.

Community Consulting offers West Point no assistance. In that appeal,
appellant submitted a claim to the CO alleging a breach of the fair opportunity
to compete. Community Consulting, 02-2 BCA ¶ 31,940 at 157,786. At issue was
whether the Board possessed jurisdiction to entertain the claim on the grounds that it
was essentially a bid protest, rather than a claim of contractual breach. The Board
concluded that the claim was an alleged contractual breach, not a bid protest, and that
it possessed jurisdiction to entertain the claim of breach. Id. at 157,786-87. Crucially,
the Board was not presented with the question of whether the alleged breach of the
opportunity to compete was a constructive termination, because the appellant had
submitted a predicate claim to the CO.

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Here, unlike in Community Consulting, West Point has not submitted a claim
to the CO alleging a breach of the MACC contract. Therefore, West Point cannot rely
upon Community Consulting to support its contention that an alleged breach of the fair
opportunity to complete is a constructive termination or, more generally, a government
claim. Moreover, we have found no Federal Circuit or Board precedent holding that a
notice refusing to solicit further work under an IDIQ contract constitutes a constructive
termination of that contract.

Paragraph 2 of Section 00803 of the MACC contract expressly established an
opportunity to compete for task orders, stating in relevant part: “[a]ll awardees will
be given a fair opportunity to be considered for each Task Order unless the
Contracting Officer applies one of the exceptions noted below.” (SOF ¶ 3 (emphasis
added) None of the contract’s limited exceptions (extreme urgency, sole source
justification) apply here. While West Point argues the July 21 notice breached this fair
opportunity provision, this potential breach does not constitute a separate government
claim. Therefore, lacking a certified claim presented to the CO pursuant to 41 U.S.C.
§ 7103(a)(1), we lack jurisdiction. West Point must first submit a claim to the CO
to pursue this breach allegation before the Board. Accordingly, we grant the Navy’s
motion to strike Count II.

C. Whether the Navy is Entitled to Summary Judgment on Count II

As an alternative argument, the Navy argues that the Board should grant
summary judgment on Count II because West Point cannot state a valid claim for relief
under the “Fair Opportunity to Complete Clause.”

While acknowledging that the government met its contractual minimum award
obligations, West Point contends this does not relieve the government of its duty
to provide fair opportunity to compete for additional work (app. opp’n at 15-16).
Citing Community Consulting and Burke Court Reporting Co., DOT BCA No. 3058,
97-2 BCA ¶ 29,323, West Point argues that meeting minimum quantities under
indefinite quantity contracts does not eliminate other contractual obligations, including
the implied duty of good faith and express contractual requirements for fair
consideration. Id. at 17. West Point further contends that the July 21, 2021 letter also
serves as the government’s final decision, as it was adverse to the contractor and
appealable regardless of lacking standard appeal language, providing the Board with
proper jurisdiction over the claim. Id. at 18.

Because we hold that Count II should be dismissed for lack of jurisdiction,
we need not address the Navy’s alternative argument for summary judgment. We
note, however, that nothing precludes West Point from filing a claim with the CO
raising the same allegations of breach of the fair opportunity to compete.

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III. Government’s Motion for Summary Judgment on Termination for Default

The Navy moves for summary judgment upholding the termination for default
on two alternative grounds. First, the Navy contends that it has satisfied the standard
in FAR 52.249-10(a) by demonstrating that the CO was “justifiably insecure about the
contract’s timely completion” (gov’t mot. at 18 (citing FFR-Bauelemente +
Bausanierung GmbH, ASBCA No. 52152 et al., 07-2 BCA ¶ 33,627)). Specifically,
the Navy contends that the CO reasonably believed West Point could not complete the
project on time due to acknowledged delays, a lack of a viable recovery plan, and
concerns about West Point’s experience and approach to crucial tasks like dewatering
(id. at 19-20).

Alternatively, the Navy contends that West Point failed to provide adequate
assurances of timely completion in response to cure notices, offering only vague and
unsubstantiated claims, and that West Point’s failure amounted to an anticipatory
repudiation of the contract. Id. at 20-21. The Navy concludes that the contract’s
default clause, coupled with West Point’s performance failures and lack of credible
assurances, warrants upholding the termination. Id. at 21.

A. Legal Standard

We grant summary judgment only when no genuine issue of material fact exists
and the moving party is entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The Navy, as the moving party, bears the burden of
establishing the absence of any genuine factual dispute. Mingus Constructors, Inc. v.
United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). We must resolve all factual
disputes and draw all reasonable inferences in favor of West Point. Sauer Constr.
LLC, ASBCA No. 63738, 25-1 BCA ¶ 38,744 at 188,344 (citing Mingus, 812 F.2d
at 1390-91).

Under FAR 52.249-10(a), the government may terminate a contract for default
when the contracting officer reasonably believes the contractor cannot complete
performance on time. The test is whether the CO held an objectively reasonable belief
that there was no reasonable likelihood of timely completion. Lisbon Contractors, Inc.
v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987); DODS, Inc., ASBCA
Nos. 57746, 58252, 14-1 BCA ¶ 35,677 at 174,624 (citing Lisbon). The government
cannot terminate “merely” for being behind schedule—it must demonstrate no
reasonable prospect of timely completion. Lisbon, 828 F.2d at 765.

B. Summary Judgment is Not Appropriate

Because genuine disputes of material fact exist concerning the contractor’s
progress, recovery efforts, and the CO’s consideration of FAR 49.402-3(f) factors,

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summary judgment is inappropriate at this stage of the appeal. West Point has
submitted evidence that, construed in the light most favorable to West Point, suggests
that its performance was actually improving over time, with delays decreasing from
99 days to 86 days to just 60 days by termination. (App. opp’n, ex. A¶ 8) With nearly
a year remaining on the contract, this trajectory raises factual questions about the
reasonableness of the CO’s pessimistic assessment.

West Point also asserts that it resolved 21 of the 23 problematic submittals and
took concrete remedial actions including hiring additional management personnel and
retaining Spencer Construction as an additional subcontractor. (SOF ¶¶ 15, 17; app.
opp’n at 19-20 (response to gov’t SUMF ¶ 14, 32)). Whether these actions provided
reasonable assurances of timely completion is a disputed factual question, a key
consideration under Lisbon.

The parties dispute whether West Point failed to provide adequate recovery
planning. West Point claims the Navy refused to meet to discuss a prepared recovery
schedule, while the Navy contends no viable schedule was submitted. The parties’
dispute over recovery planning goes to whether the CO reasonably concluded there
was no reasonable prospect of timely completion.

In addition, West Point has raised facts suggesting that the Navy failed to
consider the factors set forth in FAR 49.402-3(f). In particular, West Point alleges that
the CO did not consider excusable delays as required in FAR 49.402-3(j), failed to
consult with the Small Business Administration as mandated for small business
contractors, and failed to evaluate the other factors in FAR 49.402-3(f) before
termination. (App. opp’n at 31-32) Although the failure to consider a specific factor
does not automatically invalidate a termination for default and does not confer rights
on the contractor, the factors may aid the Board in evaluating the reasonableness of the
CO’s decision. DCX, Inc., 79 F.3d at 135. Under Lisbon, the critical question is
whether the CO’s determination that timely completion was impossible was
objectively reasonable. West Point’s improving performance metrics, documented
remedial actions, and substantial remaining contract time create genuine factual
disputes about this reasonableness determination. These disputes must be resolved at
trial, not on summary judgment.

C. The Government Has Not Established Anticipatory Repudiation

To prove anticipatory repudiation, the government must show the contractor
communicated a positive, definite, and unconditional intent not to perform through
either: (1) a definite and unequivocal statement refusing to perform; or (2) actions
constituting actual abandonment. Highland Al Hujaz Co., Ltd., ASBCA No. 58243,
16-1 BCA ¶ 36,336 at 177,165 (citations omitted).

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Either an express refusal to perform or a statement of inability to perform may
constitute anticipatory repudiation. See Danzig v. AEC Corp., 224 F.3d 1333, 1339-40
(Fed. Cir. 2000) (holding that the failure to provide assurances of performance is a
breach justifying termination for default). For example, stating inability to perform
unless the government modifies the contract constitutes anticipatory repudiation. LKJ
Crabbe Inc., ASBCA No. 60331, 18-1 BCA ¶ 37,193 at 181,065; Symvionics, Inc.,
ASBCA Nos. 60335, 60612, 17-1 BCA ¶ 36,790 at 179,322 (citing Cascade Pacific
Int’l v. United States, 773 F.2d 287, 293 (Fed. Cir. 1985)).

The Navy’s anticipatory repudiation argument fails because West Point
consistently expressed an intent to perform and complete on time. West Point
responded to the March 9, 2021 cure notice within 10 days, proposing a revised
schedule for collaborative meetings to address the underlying causes of the delay (SOF
¶ 11). West Point responded to the April 14, 2021 show cause notice within nine days,
stating that it believed there were ways to “control its means and methods through
acceleration and concurrent work which will enable it to complete the work under this
Task Order within the time frame shown in the approved baseline schedule.” (SOF ¶
16) West Point further stated that it “remains ready, willing and able to complete this
project” (id.). These statements demonstrate intent to complete the project on time and
fall short of the required “definite” and “unequivocal” intent not to perform.

The Navy makes too much of West Point’s admission in its response to the
show cause notice that the current project tracked two months behind the baseline
schedule (gov’t reply at 16). This statement falls well short of the statements made in
Danzig, where the contractor admitted in its response to the government’s cure notice
that its financial difficulties ‘“made it impossible . . . to predict an ultimate completion
date at this time.’” 224 F. 3d at 1335, 1338. The contractor in Danzig further
admitted that, unless its surety released funds in the project’s bank account, ‘“it is
doubtful that [we] will ever be able to complete the project.”’ Id. Moreover, the
contractor in Danzig reduced its work force to just two employees and failed
completely to respond to the government’s subsequent show cause notice within the
10-day deadline. Id. at 1339.

West Point, in contrast, timely responded to both the cure notice and the show
cause notice (SOF ¶¶ 11, 16). It also stated that it was willing and able to complete the
project and had developed a plan to do so within the original deadline (SOF ¶16).
Finally, West Point took concrete steps to address the delay by retaining additional
management personnel and retaining an additional subcontractor (SOF ¶ 17; app.
opp’n at 19-20 (response to gov’t SUMF ¶ 14)). The facts, viewed most favorably
to West Point, preclude summary judgment for the Navy.

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CONCLUSION

Because West Point failed to submit claims to the CO as required by the
Contract Disputes Act, ¶¶ 84, 85, and Count II (¶¶ 88-91) are dismissed without
prejudice due to lack of jurisdiction. However, the Board denies the government’s
motion for summary judgment on the termination for default, finding genuine issues of
material fact regarding the reasonableness of the termination and anticipatory
repudiation that preclude summary judgment.

Dated: September 4, 2025

KENNETH D. WOODROW
Administrative Judge
Armed Services Board
of Contract Appeals

I concur I concur

OWEN C. WILSON MICHAEL N. O’CONNELL
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals

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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. 63006, Appeal of West
Point Utilities, LLC, rendered in conformance with the Board’s Charter.

Dated: September 4, 2025

PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11138885. Public record. Not legal advice.