RESPONDENT’S MOTION FOR PARTIAL SUMMARY JUDGMENT GRANTED;

RESPONDENT’S MOTION FOR PARTIAL SUMMARY JUDGMENT GRANTED;

APPELLANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT DENIED:

August 29, 2025

CBCA 8034

ALL PHASE SERVICES, INC.,

Appellant,

v.

DEPARTMENT OF VETERANS AFFAIRS,

Respondent.

Lawrence J. Sklute of Sklute & Associates, Potomac, MD, counsel for Appellant.

Jennifer L. Hedge, Office of General Counsel, Department of Veterans Affairs,

Pittsburgh, PA, counsel for Respondent.

Before Board Judges BEARDSLEY (Chair), SHERIDAN, and SULLIVAN.

SULLIVAN, Board Judge.

All Phase Services, Inc. (APS) appealed the termination for default issued by the

contracting officer for the Department of Veterans Affairs (VA). The parties filed crossmotions for summary judgment on various aspects of their respective burdens of proof. VA

asks that we find that, based upon the undisputed facts, APS was in default when VA

terminated the contract. We find that the contracting officer properly reestablished the

contract completion date (CCD) and based his termination of the contract on APS’s failure

to make progress on the contract to meet that date. APS failed to establish that the CCD was

CBCA 8034

2

later in time or that VA failed to consider its request to use a different roofing product. On

the basis of these findings, we grant VA’s motion for partial summary judgment asking us

to find that it has established a prima facie case of default and deny APS’s motion. With the

prima facie case of default now established, APS’s evidence and arguments as to why its

failure to perform should be excused will be the focus of the hearing scheduled for October

2025.

Background

I.

Contract Award and Relevant Terms

In October 2020, VA awarded to APS a contract to replace fifty-five roofs at the VA

Medical Center located in Buffalo, New York. Exhibits 7 at 2074; Respondent’s Statement

of Undisputed Material Facts ¶ 16. The period of performance was 730 days measured from

the notice to proceed issued at the contract kick-off meeting. Exhibit 7 at 2074, 2105.1 The

parties convened the kick-off meeting on November 12, 2020, which made the CCD

November 12, 2022. Exhibit 9 at 2156. The parties later modified the contract and added

thirty days to the performance period of the contract, pushing the CCD to December 12,

2022. Exhibit 39 at 2655.2

The contract incorporated by reference two clauses relevant to the Board’s

consideration of the parties’ motions: (1) Default (APR 1984) clause, Federal Acquisition

Regulation (FAR) 52.249-10 (48 CFR 52.249-10), which provides, in part, “[i]f 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

. . . the Government may, by written notice to the Contractor, terminate the right to proceed,”

Exhibit 7 at 2118; and (2) Permits and Responsibilities (NOV 1991) clause, FAR 52.236-7,

which provides, in part, that “[t]he Contractor shall be responsible for all materials delivered

and work performed until completion and acceptance of the entire work.” Id. The contract

did not include a provision allowing VA to assess liquidated damages.

1

“Exhibit XX at XXXX” refers to the exhibits in the appeal file and the bates

page numbers applied by the parties.

2

This exhibit incorrectly states that the CCD was November 12, 2022.

Respondent’s Statement of Undisputed Facts at 4 n.3. APS objects to this proposed finding,

but does not object to the finding that the original CCD was November 12, 2022.

Appellant’s Statement of Genuine Issues, ¶ 26. If one adds 30 days to the original CCD, the

new CCD would be December 12, 2022.

CBCA 8034

3

The contract contained two clauses which delegated contract administration functions

to the contracting officer’s representative (COR) but also limited the COR’s authority to

certain functions—Veterans Affairs Acquisition Regulation (VAAR) 852.242-70,

Government Construction Contract Administration (APR 2019) (Exhibit 7 at 2126), and

VAAR 852.270-1, Representatives of Contracting Officers (JAN 2008) (Exhibit 7 at 2129).

Pursuant to VAAR 852.270-1, the contracting officer issued a memorandum defining the

limits of the COR’s authority which included a limitation that the COR could not “encourage

the contractor by words, actions, or a failure to act to undertake new work or an extension

of existing work beyond the contract period.” Exhibit 8 at 2153. The memorandum further

advised that any unauthorized commitment made by a COR was not a binding commitment

on behalf of the Government. Id. The president of APS acknowledged receipt of this

memorandum in November 2020. Id. at 2155.

The contract contained specifications for the submittals requesting approval of

products to be used on the contract. Exhibits 2 at 178-81, 7 at 2084. These specifications

included the requirement for a transmittal form, and, if the transmittal was a request for a

deviation, the submittal was to include “a side by side comparison of [the] item being

proposed against [the] item specified.” Exhibit 2 at 180. The specification further advised

that incomplete submittals would be returned without review. Id. at 179. VA kept a log for

all submittals. Exhibits 7 at 2084, 104 at 4049.

II.

Extension of the CCD

The parties agree that VA did not enforce the CCD of December 2022, but dispute

what date was agreed to as the new CCD. APS asserts that the VA contracting officer

approved an extension to July or October 2025. VA maintains that the parties agreed that the

CCD would be October 2024. We set forth here the facts that underlie the parties’

contentions.

On September 22, 2022, APS submitted to the COR a proposed schedule showing

performance through June 2025. Exhibit 220 at 3127-31. On September 26, 2022, the COR

responded indicating that the schedule was approved. Id. at 3125. Similarly, on October 24,

2022, the COR approved another schedule update showing performance through June 2025.

Exhibit 222 at 3319-28. The contracting officer was included on both of the COR’s emails.

CBCA 8034

4

On October 28, 2022, APS submitted its request for a contract extension to July 3,

2025, to the contracting officer. Exhibit 75 at 3666.3 By email the same day, the VA

contracting officer responded and disagreed with APS’s explanations of the need for an

extension. Id. at 3665. He also suggested that APS revise its extension request. Id.

On January 5, 2023, APS submitted a request for a contract extension to October 3,

2025. Exhibit 143 at 4574, 4585-86. After a further exchange of emails regarding the status

of APS’s efforts to hire a new roofing subcontractor, on January 26, 2023, the contracting

officer stated that he was willing to allow the contact to proceed and requested that APS

submit a “request for contract extension since this [s]chedule extends into 2024 when the

original stated the project would be completed in 2022.”4 Exhibit 88 at 3795. The

contracting officer further stated that “[f]or the contract [period of performance (POP)]

extension request I will attach what was sent by [APS’s former project manager] and our

comments in response. I need this right away to develop a modification to the contract.

Complete this POP request ASAP and send to [COR] and I for review.” Id. To the email,

the contracting officer attached APS’s previous request for an extension to October 3, 2025,

with an accompanying schedule. Id. at 3810-12.5

By letter dated January 30, 2023, APS submitted to the contracting officer a POP

extension request, seeking an extension to October 10, 2025. Exhibit 147. On March 7,

2023, the contracting officer issued a cure notice pursuant to FAR 52.211-10,

Commencement, Prosecution and Completion of Work (APR 1994). Exhibit 92. The

contracting officer stated that the proposed schedule extension to October 10, 2025, was not

3

APS disputes that this letter was a request for an extension because the COR

had already approved the requested extension. Appellant’s Revised Statement of Genuine

Issues, ¶ 56. APS’s contention is contradicted by the text of the letter itself wherein APS

“requests an extension to July 3, 2025.” Exhibit 75 at 3666.

4

APS noted that the contracting officer’s email did not accord with their request.

In an email to the COR the following day the president of APS noted that the contracting

officer had said the schedule went to 2024, but their request was for 2025. Exhibit 146 at

4647.

5

Exhibit 145 contains the same email exchanges between the contracting officer

and APS and appends the schedule showing the proposed completion date of October 2025.

Exhibit 145 at 4640-41. But, this exhibit accords with the contracting officer’s note that he

was attaching the previous request for an extension through July 3, 2025, and VA’s previous

response. Id. at 4642-44.

CBCA 8034

5

acceptable to the VA. Id. at 3848. Instead, the contracting officer directed APS to submit

a revised schedule with a CCD of October 10, 2024. Id. at 3849.

By letter dated March 17, 2023, APS responded to the cure notice and submitted a

schedule showing final inspection in October 2024. Exhibit 93 at 3850-51, 3908-09. APS

described the construction schedule as part of its “plan of action” and did not object to the

contracting officer’s direction that it assemble the schedule based upon a CCD of October

10, 2024. Id. at 3851.

III.

Contracting Officer’s Termination Decision

On December 12, 2023, the contracting officer issued a decision terminating the

contract for default because APS had “failed to diligently pursue the remaining work on the

contract in order to ensure completion.” Exhibit 123 at 4252. The contracting officer

terminated the contract after issuing two cure notices in which the contracting officer sought

assurances of APS’s ability to perform. Exhibits 92, 109. At the point the contract was

terminated, APS had performed thirteen percent of the work on the contract. Respondent’s

Statement of Undisputed Material Facts ¶¶ 117, 123 (citing Exhibit 123 at 4259). At

termination, APS had not finalized a contract with a subcontractor to complete the roofing

work. Id. ¶ 124 (citing Exhibit 184 at 3404). At termination, APS had not completed the

punch list on the seven roofs on which it had worked. Id. ¶¶ 64, 125 (citing Exhibit 185

¶ 14). At termination, APS had not begun work on forty-eight of the roofs to be re-roofed

in performance of the contract. Id. ¶ 126 (citing Exhibit 185 ¶ 16). APS does not dispute any

of these proposed material facts. Appellant’s Statement of Genuine Issues ¶¶ 64, 117,

123-126.

IV.

Evidence of Workmanship Defects/Issues

VA asserts that the evidence of poor workmanship by APS on the roofs that it

completed provides another basis for the default termination. In support of this allegation,

VA cited to emails and contract reports that discuss damage to roofs thirty-six and forty.

Respondent’s Supplemental Statement of Undisputed Material Fact ¶¶ 35, 48, 50-54, 154;

Exhibits 68, 177-179. In response, APS provided a declaration of its project superintendent

explaining that the issues related to roofs thirty-six and forty were fixed by APS. Exhibit 296

at 6834.

V.

Request for Consideration of Use of Kemper Products

Because it was having difficulty obtaining a subcontractor that was certified to use the

already-approved Tremco roofing products, APS, in response to the second cure notice,

CBCA 8034

6

offered to switch to Kemper roofing products. Exhibit 164 at 4822. As part of its response,

APS offered a single sheet listing, for comparison purposes, the properties of both the

Tremco and Kemper roofing materials. APS indicated that the sheet was provided for the

contracting officer’s “review and approval.” Id. APS does not cite to any other

documentation that it provided for VA’s review and approval of its request to switch to

Kemper products. The submittal log does not list a submittal for use of the Kemper products.

Exhibit 104.

Discussion

Standards for Review

APS seeks to overturn the contracting officer’s termination of its contract for default.

Termination for default is a drastic sanction. J.D. Hedin Construction Co. v. United States,

408 F.2d 424, 431 (Ct. Cl. 1969). VA bears the burden of establishing a prima facie case

that the contractor was in default, and, if VA satisfies that burden, APS bears the burden of

establishing that its failure to perform should be excused. CDA, Inc. v. Social Security

Administration, CBCA 1558, 12-1 BCA ¶ 34,990, at 171,971 (citing Integrated Systems

Group, Inc. v. Social Security Administration, GSBCA 14054-SSA, 98-2 BCA ¶ 29,848, at

147,742).

“In deciding a motion for summary judgment, we initially determine if there are

material facts in dispute; we will not weigh the facts and evidence. Only when there are no

material facts in dispute do we look to whether the movant is entitled to judgment as a matter

of law.” Centex Bateson Construction Co., VABCA 5166, et al., 97-2 BCA ¶ 29,196, at

145,252. While “[a]ny doubt as to the existence of a disputed issue of material fact must be

resolved against the non-moving party,” Campos Construction Co., VABCA 3019, 90-3

BCA ¶ 23,108, at 116,012, the non-moving party “must present sufficient evidence, by

pointing to some part of the record or additional evidence, indicating that the facts differ

significantly from the way the non-movant has presented them.” Centex Bateson, 97-2 BCA

at 145,252.

The Contract Completion Date Was October 10, 2024

VA terminated the contract based upon APS’s failure to make progress and concern

that APS would not complete the contract on time. To decide this issue, we first need to

determine the CCD. See Omni Development Corp., AGBCA 97-203-1, et al., 05-2 BCA

¶ 32,982, at 163,433 (“Since the endangerment issue is tied to final completion and

occupancy, we need to determine how much time [the contractor] had remaining for

performance at the time of termination.”).

CBCA 8034

7

The parties do not dispute that VA did not enforce the original CCD. In January 2023,

more than a month past the December 2022 CCD, the contracting officer told APS that he

was willing to allow APS to continue with the contract. “Where the Government elects to

permit a delinquent contractor to continue performance past a due date, it surrenders its

alternative and inconsistent right under the Default clause to terminate, assuming the

contractor has not abandoned performance and a reasonable time has expired for a

termination notice to be given.” DeVito v. United States, 413 F.2d 1147, 1153 (Ct. Cl. 1969).

The parties disagree as to the date of the new CCD. APS urges the Board to find that

the new CCD was either in July or October 2025, based upon the contracting officer’s

purported approval of APS’s extension requests. For the July 2025 date, APS recites facts

regarding the COR’s efforts to help APS develop the schedule and then his communications

indicating that he approved the schedule submissions. Pursuant to the terms of the contract,

the COR did not have the authority to approve such a schedule extension. APS demonstrated

its understanding of this limitation when it submitted the July 2025 schedule extension

request to the contracting officer. Moreover, while the fact that the contracting officer was

included on the emails between the COR and APS regarding his “approval” of the schedule

extensions may constitute knowledge of the COR’s actions, APS cannot establish ratification

by the contracting officer because he rejected the subsequent schedule extension request. See

Winter v. Cath-dr/Balti Joint Venture, 497 F.3d 1339, 1347 (Fed. Cir. 2007) (“Ratification

requires knowledge of material facts involving the unauthorized act and approval of the

activity by one with authority.”).

For the October 2025 schedule extension request, APS relies upon the fact that the

contracting officer attached to his email the schedule showing performance through October

2025. But, this attachment does not comport with the text of the contracting officer’s email

which requested a schedule with a CCD in 2024. And, the contracting officer asked for a

proper extension request, which APS submitted based upon the October 2025 date, and the

contracting officer rejected the request. This record does not provide a basis for us to find

that the contracting officer is somehow bound to an October 2025 performance extension due

to an inadvertent attachment.

VA asserts that the contracting officer set the new CCD of October 2024 in the first

cure notice. VA further asserts that APS agreed to this date by submitting a schedule that

complied with the new CCD date. Bilateral agreement on a new schedule date has been

found when the contracting officer requests a new date from the contractor, the contractor

supplies a new date in a proposed schedule, and the contracting officer adopts the schedule

as the one for the contract. ASC Systems Corp., DOTCAB 73-37, et al., 78-1 BCA ¶ 13,119,

at 64,137.

CBCA 8034

8

APS challenges this assertion, claiming that APS only submitted the schedule based

on the October 2024 CCD under threat of termination, a form of economic duress. To

establish economic duress, APS has to establish that (1) it involuntarily accepted VA’s date,

(2) the circumstances permitted no alternative, and (3) the circumstances were the result of

VA’s coercive acts. Fortis Industries, LLC v. General Services Administration, CBCA 7967,

24-1 BCA ¶ 38,668, at 187,969. To establish that VA’s actions were coercive, APS would

have to show “a wrongful action by the Government that was illegal, a breach of an express

provision of the contract without a good-faith belief that the action was permissible under

the contract, or a breach of the implied covenant of good faith and fair dealing.” Id. The

contracting officer properly reset the CCD in a cure notice issued pursuant to the Default

clause. “The proper way thereafter for time to again become of the essence is for the

Government to issue a notice under the Default clause setting a reasonable but specific time

for performance.” DeVito, 413 F.2d at 1154; see also id. at 1155 (noting that the contracting

officer would have been well-advised to issue a cure notice setting a reasonable time for

performance). Asking APS for a schedule to reestablish the CCD on the contract did not

violate the terms of the contract or the implied covenant of good faith and fair dealing. APS

has failed to rebut VA’s showing that the CCD was established as October 10, 2024.

VA Has Established a Prima Facie Case That APS Was In Default

The contracting officer terminated the contract because APS had failed to make

sufficient progress on the contract to ensure timely completion. A termination for default for

failure to prosecute the work requires “a reasonable belief on the part of the contracting

officer that there was ‘no reasonable likelihood that the [contractor] could perform the entire

contract effort within the time remaining for contract performance.’” Lisbon Contractors,

Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987) (quoting RFI Shield-Rooms,

ASBCA 17374, et al., 77-2 BCA ¶ 12,714, at 61,735). The agency is not required to prove

that performance was impossible. RFI Shield-Rooms, 77-2 BCA at 61,735. Instead, the

termination will be upheld where “a demonstrated lack of diligence indicates that [the

agency] could not be assured of timely completion.” Id.

At the time the contract was terminated, with one roofing season left to complete the

contract, APS had not started work on forty-eight of the fifty-five roofs that it was to

complete on the contract and had not completed the punch list on the seven roofs on which

it had worked. APS also did not have a subcontractor to perform the roofing work. Based

upon these undisputed material facts, VA has established that the contracting officer had a

reasonable belief that APS would be unable to complete the contract within the time

remaining.

CBCA 8034

9

“Once the Government establishes the existence of default,” as VA has done here,

“the burden shifts to the contractor to prove that there were excusable delays under the terms

of the default provision of the contract that render the termination inappropriate . . . or that

it was making sufficient progress on the contract such that timely contract completion was

not endangered.” 1-A Construction & Fire, LLP v. Department of Agriculture, CBCA 2693,

15-1 BCA ¶ 35,913, at 175,553. APS did not include in its motion any grounds for why its

failure to make progress should be excused. This issue will be the focus of the hearing

scheduled for October 2025.

VA Has Not Established That the Roof Leaks Provide an Alternate Basis for Termination

VA terminated APS’s contract based upon APS’s failure to make progress. Since the

appeal was filed, VA has offered an alternate basis for the termination—poor workmanship

by APS led to leaks in the roofs that APS worked on. “[I]t is well-settled that a default

termination can be sustained ‘if justified by circumstances at the time of termination,

regardless of whether the Government originally removed the contractor for another

reason.’” 1-A Construction, 15-1 BCA at 175,554 (quoting Kelso v. Kirk Brothers

Mechanical Contractors, Inc., 16 F.3d 1173, 1175 (Fed. Cir. 1994)). Poor workmanship can

be a proper basis for a default termination. M.C. & D. Capital Corp. v. United States, 948

F.2d 1251, 1256 (Fed. Cir. 1991).

As evidence of the poor workmanship, VA provides proposed findings based upon

emails detailing leaks in two roofs in the 2021 and 2022 timeframe. APS rebuts these

findings with evidence that states these leaks were repaired. On this record, applying the

standards for summary judgment, the Board is unable to find that the alleged workmanship

failures provided an alternate basis for termination.

APS Has Not Established That VA Failed to Consider a Proper Request to Use Kemper

Products

APS alleges that VA violated the duty of good faith and fair dealing not to interfere

in the performance of the contract by failing to investigate the use of Kemper roofing

products on the contract. VA responds that APS failed to make a proper submission for VA

to consider.

As noted above, the contract contains specific requirements regarding the submittal

of information for the approval by VA. As support for its contention that VA failed to

consider the Kemper product, APS points to its response to the second cure notice wherein

it stated that it was providing, for the contracting officer’s review and approval, a single sheet

that compared the properties of the Tremco and Kemper products. VA counters that this

CBCA 8034

10

single sheet does not comport with the contract requirements for submittals. APS has not

shown on the current record that it made a proper submission for VA to consider.

Decision

VA’s motion for partial summary judgment is GRANTED, and APS’s motion is

DENIED. The parties’ presentations at hearing in October 2025 will be limited to the

evidence and arguments regarding why APS’s failure to perform should be excused.

Marian E. Sullivan

MARIAN E. SULLIVAN

Board Judge

We concur:

Erica S. Beardsley

ERICA S. BEARDSLEY

Board Judge

Patricia J. Sheridan

PATRICIA J. SHERIDAN

Board Judge