Bryan Ashush JV

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of - )

)

Bryan Ashush JV ) ASBCA No. 64037 1

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Under Contract No. W912GB-23-C-0005 )

APPEARANCE FOR THE APPELLANT: Casey J. McKinnon, Esq.

Cohen Seglias Pallas Greenhall

& Furman PC

Washington, DC

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.

Engineer Chief Trial Attorney

Cara M. Mroczek, Esq.

Rebecca L. Bockmann, Esq.

Engineer Trial Attorneys

U.S. Army Engineer District, Middle East

Winchester, VA

OPINION BY ADMINISTRATIVE JUDGE SWEET

ON THE GOVERNMENT’S PARTIAL MOTION TO DISMISS

Appellant Bryan Ashush JV (BAJV or appellant) appeals the deemed denial of

its claim seeking to be excused from performing a contract between it and the

United States Army Corps of Engineers (Corps or government). The government has

moved (Motion) to dismiss or strike portions of BAJV’s complaint (Complaint),

arguing that the Complaint requests injunctive relief that the Board does not possess

jurisdiction to grant. BAJV argues that the Complaint merely requests declaratory

relief that the contract should be terminated for convenience. As discussed in greater

detail below, the Complaint seeks injunctive relief that we do not possess jurisdiction

to grant, and declaratory relief that we do possess jurisdiction to grant. Thus, we grant

the Motion in part, and deny it in part.

1

Appellant has filed two additional notices of appeal, docketed as ASBCA Nos. 64184

and 64185. Those appeals have been consolidated with this appeal; however,

the Corps’ Motion and our opinion deal only with the Complaint filed in

ASBCA No. 64037.

STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION

1. On August 2, 2023, the Corps awarded BAJV Contract No. W912GB-23-C-

0005 (Contract) for the construction of a “Life Support Area” in Israel (R4, tab 3 at 1-

2). The Corps issued an administrative notice to proceed (NTP) on September 12,

2023 (compl. ¶ 10; answer ¶ 10), and planned to issue a construction NTP on

October 15, 2023 (answer ¶ 13).

2. Before it issued that construction NTP, however, a war between Hamas and

Israel began on October 7, 2023 (compl. ¶ 13; answer ¶ 13). The Corps issued a

suspension of work order on November 7, 2023 (compl. ¶ 14), but lifted it on

January 17, 2024 (id. ¶ 15; answer ¶ 15). The Corps did not issue the construction

NTP until June 5, 2024 (compl. ¶ 27; answer ¶ 27).

3. On August 1, 2024, BAJV filed a claim with the contracting officer (CO)

requesting that it be excused from further performance (R4, tab 2 at 1). The claim

alleged that the Corps’ failure to issue the construction NTP until 10 months after

award constituted a material breach, a cardinal change, and rendered performance

impracticable (id. at 2-6). The Corps did not respond to the claim, leading BAJV to

file this appeal as a deemed denial on December 13, 2024.

4. Like its claim, BAJV’s three-count Complaint alleges material breach of

contract, cardinal change, and commercial impracticability. The concluding

paragraphs of the Complaint’s statement of facts, the second count, and the third count

allege that the Corps’ conduct excuses BAJV from further performance under the

contract, “which should be terminated for convenience” (compl. ¶¶ 28, 55, 66).

Similarly, the concluding paragraph of the first count alleges that “BAJV is entitled to

discontinue its performance and have the Contract terminated for convenience” (id.

¶ 44).

5. The Complaint’s prayer for relief makes two requests: that “the Board (1) find

that [BAJV’s] performance obligations under the Contract are excused and (2) direct

the Government to terminate the Contract for convenience” (id. at 10).

DECISION

Analysis

While the Board does not possess jurisdiction over BAJV’s request that we

direct the government to terminate the Contract for convenience, we possess

jurisdiction over BAJV’s request that we find that the government’s material breach, a

cardinal change, and impossibility excuse BAJV’s performance. Under the Contract

Disputes Act (CDA), 41 U.S.C. §§ 7101-09, we do not possess jurisdiction to grant

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injunctive relief. Lulus Ostrich Ranch, ASBCA Nos. 59252, 59450, 14-1 BCA

¶ 35,769 at 175,000. However, we possess jurisdiction to grant declaratory relief.

Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1271 (Fed. Cir. 1999); Inter-

Continental Equip., Inc., ASBCA No. 44840, 94-2 BCA ¶ 26,655 at 132,609.

“Although the Board does not possess jurisdiction to order injunctive relief such as the

termination of a contract for convenience, the Board possesses jurisdiction to entertain

non-monetary claims, including whether performance of the contract is impossible.”

CDM Constructors, Inc., ASBCA No. 59524, 15-1 BCA ¶ 36,097 at 176,238 (citations

omitted). Similarly, in Philips Lighting N. Am. Corp., we held that a complaint

requesting that we find that the government’s material breach permitted a contractor to

cease performance and seek damages did not seek injunctive relief. ASBCA

No. 61769, 2024 WL 5038837 (Nov. 15, 2024). A contractor bears the burden of

proving the Board’s jurisdiction to hear its appeal. Reynolds v. Army & Air Force

Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988); Kostas Greek Food – Zorbas,

ASBCA No. 62213, 21-1 BCA ¶ 37,750 at 183,208.

Here, the Complaint’s prayer for relief requests that we direct the government

to terminate the Contract for convenience, and that we find that the government’s

material breach, a cardinal change, and impossibility excused BAJV’s performance

obligations under the Contract (SOF ¶ 5). Under CDM Constructors, we do not

possess jurisdiction to direct the government to terminate the Contract for convenience

because that is injunctive relief. See 15-1 BCA ¶ 36,097 at 176,238. However, under

CDM Constructors and Philips Lighting, we possess jurisdiction to determine whether

there was a material breach, a cardinal change, and impossibility which would excuse

BAJV’s performance obligations under the Contract because that is declaratory relief

of the sort that we may provide. See CDM Constructors, 15-1 BCA ¶ 36,097

at 176,238; Philips Lighting, 2024 WL 5038837. 2 Thus, BAJV has not met its burden

of showing that we possess jurisdiction over the Complaint’s request that we direct the

government to terminate the Contract for convenience, but BAJV has met its burden of

showing that we possess jurisdiction over the Complaint’s request that we find that the

government’s material breach, a cardinal change, and impossibility excused BAJV’s

performance obligations under the Contract.

2

The government also moves to strike the mentions of the termination for convenience

contained in paragraphs 28, 44, 55, and 66 of the Complaint (gov’t mot. at 2-3,

5). Those references are a mere expression of BAJV’s opinion concerning what

should happen to the Contract if the Board finds in BAJV’s favor, and do not

request that the Board order, direct, or otherwise require the Corps to terminate

the contract for convenience (SOF ¶ 4). Therefore, we deny the motion to

strike those references.

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CONCLUSION

For the foregoing reasons, the Motion is granted in part and denied in part. We

strike the Complaint’s second request for relief asking us to “direct the Government to

terminate the Contract for convenience” (SOF ¶ 5 (quoting compl. at 10)).

Dated: October 1, 2025

JAMES R. SWEET

Administrative Judge

Armed Services Board

of Contract Appeals

I concur I concur

OWEN C. WILSON 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. 64037, Appeal of Bryan

Ashush JV, rendered in conformance with the Board’s Charter.

Dated: October 1, 2025

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals

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