The opinion
ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of - )
)
Colony Construction ) ASBCA No. 63630
)
Under Contract No. W912WJ-22-P-0131 )
APPEARANCE FOR THE APPELLANT: Mr. Jay Harris
President
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.
Engineer Chief Trial Attorney
Theresa A. Negron, Esq.
Engineer Trial Attorney
U.S. Army Engineer District, New England
OPINION BY ADMINISTRATIVE JUDGE SMITH
ON THE GOVERNMENT’S MOTION TO DISMISS
The U.S. Army Corps of Engineers (USACE or respondent) has moved to
dismiss this appeal for failure to state a claim upon which relief can be granted or, in
the alternative, for a more definite statement under Board Rule 6. We deny the motion
because the appellant states a claim upon which relief can be granted, namely to vacate
respondent’s termination for default. Per Rule 6, appellant’s submissions also contain
sufficient information to proceed past the pleading phase – especially where
respondent will have the initial burden of proof to justify its default termination.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
Appellant Colony Construction (Colony) was awarded a $156,000 contract to
upgrade a campground electrical system (R4, tab 3). After several preconstruction
exchanges between the parties, and no work in the field, USACE became dissatisfied
with Colony’s submittals and issued a cure notice and a show cause notice, to which
Colony responded (R4, tabs 18-19, 21-22, 24-26). Considering those responses
insufficient, USACE terminated Colony’s contract for default (R4, tab 2). Proceeding
pro se, Colony challenges the default termination here. In addition to its
contemporaneous communications with USACE, Colony has made submissions to the
Board that contain contentions that challenge specific aspects of USACE’s termination
decision and seeks conversion of the termination from default to convenience.
DECISION
Our rules are prefaced upon informal, expeditious, and inexpensive resolution
of disputes and Rule 15 allows appellants to proceed without counsel. Here, Colony is
proceeding pro se, its submissions are informal, and some have been untimely. But
we do not penalize contractor-appellants who are inexperienced in Board litigation or
unfamiliar with forms of pleadings and other submissions. Elizabeth Constr. Co.,
ASBCA No. 60723, 17-1 BCA ¶ 36,839 at 179,519 (citing Haines v. Kerner, 404 U.S.
519, 520 (1972)).
Looking at the sum of Colony’s submissions and drawing reasonable inferences
in Colony’s favor, we readily discern Colony’s claim which it succinctly states as
follows. “Colony Construction claims that the Corps has wrongly terminated contract
#W912WJ-22P-0131 for ‘default’ and not ‘convenience.’ We pray that the Board will
change the designation accordingly. Colony is asking for no monetary damages” (app.
resp. at 1). This is a vintage claim upon which relief can be granted. Kellogg Brown
& Root Services, Inc. v. United States, 728 F.3d 1348, 1365 (Fed. Cir. 2013).
Respondent’s motion to dismiss is denied.
USACE’s request for a more definite Complaint because “. . . it is difficult to
determine from the Complaint what Colony may be attempting to plead” (gov’t mot.
at 3), is similarly unconvincing. USACE bears the initial burden to justify its default
termination and has already provided an explanation in the termination notice/final
decision (R4, tab 2). Johnson Mgmt. Grp. CFC, Inc. v. Martinez, 308 F.3d 1245,
1249 (Fed. Cir. 2002). (“The government bears the burden of proof in establishing the
validity of a default termination”). USACE has also submitted a 164-page Rule 4 file
which contains 26 documents showing the events that lead to the termination.
In response, Colony’s contemporaneous documents and its submissions here
make contentions regarding the timeliness of its submittal documents and USACE’s
responses or lack thereof (R4, tabs 22, 25-26). This includes Colony’s specific
allegation that it sent substantially more submittal documents than USACE has
acknowledged (compl. ¶ 13).
Considering USACE’s burden of proof, the Rule 4 record, and Colony’s
submissions, we conclude that the issues before the Board are sufficiently defined per
Rule 6. This appeal is a garden-variety default termination challenge by a pro se
contractor-appellant. USACE should be equipped to move forward in the proceedings
and attempt to justify its termination decision, to which Colony will have an
opportunity to respond.
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CONCLUSION
Respondent’s motion is denied. Our September 26, 2023, suspension is lifted
and the response to appellant’s complaint is due within 30 days of receipt of this
decision. *
Dated: November 22, 2023
BRIAN S. SMITH
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD OWEN C. WILSON
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. 63630, Appeal of Colony
Construction, rendered in conformance with the Board’s Charter.
Dated: November 22, 2023
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
*
We note that our rules provide for expedited resolution of uncomplicated or
small-dollar appeals, which the parties should consider.
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