DENIED: July 24, 2023

DENIED: July 24, 2023

CBCA 7283

ADVENTUS TECHNOLOGIES, INC.,

Appellant,

v.

DEPARTMENT OF AGRICULTURE,

Respondent.

Ibrahim D. Iscandri, Vice President and Chief Operations Officer of Adventus

Technologies, Inc., Houston, TX, appearing for Appellant.

Jennifer T. Newbold, Office of the General Counsel, Department of Agriculture,

Missoula, MT, counsel for Respondent.

Before Board Judges LESTER, KULLBERG, and SULLIVAN.

LESTER, Board Judge.

Appellant, Adventus Technologies, Inc. (ATI), appeals a contracting officer’s decision

terminating for cause ATI’s purchase order for janitorial services. Under that purchase order,

ATI was required to provide janitorial services several times a week at an office of the

United States Forest Service (USFS). At a certain point, ATI notified a contract specialist

for the USFS that its janitorial employee had quit, that it would let her know when ATI had

found someone new, and that the hiring process might take some time. After this disclosure,

the USFS contracting officer issued a cure notice, complaining that ATI had stopped

providing services. After three weeks without services, and with no response to his cure

notice, the USFS contracting officer terminated ATI’s contract for cause, an action that ATI

believes was unjustified. The parties have submitted this appeal for decision on the written

CBCA 7283

2

record under Board Rule 19 (48 CFR 6101.19 (2021)). For the reasons discussed below, we

sustain the contracting officer’s termination of ATI’s contract for cause and deny ATI’s

appeal.

Background

ATI’s Purchase Order

On March 18, 2020, the USFS awarded purchase order no. 12034320P0096 to ATI.

Under that purchase order, ATI was to provide janitorial services for the USFS at the Idaho

Panhandle National Forest’s offices in Avery, Idaho. Appeal File, Exhibit 1 at 1-2.1 The

base period of performance ran from May 1, 2020, through March 31, 2021, but the USFS

had the option to extend services on an annual basis for four additional years, up to and

including March 31, 2025. Id.

The main building of the Idaho Panhandle National Forest’s offices contained three

floors and approximately 6600 square feet of office space (inclusive of common areas) with

four bathrooms. Exhibit 1 at 22. Between May and September of each year, the contractor

was required to clean the main building three times a week, and, between October and April,

the contractor was to clean it two times a week. Id. at 5, 22.2 A nearby 500-square-foot,

single-story warehouse with two bathrooms was considered a part of the office and covered

by the purchase order. Id. at 22. The warehouse was to be cleaned three days a week but

only from May to September. Id. at 5, 22.

The purchase order required ATI to maintain the offices “in a clean condition and . . .

provide supplies, materials, and equipment to adequately maintain the premises at an

acceptable level.” Exhibit 1 at 24. To that effect, it contained “Performance Standards and

Guideline Requirements” that the contractor was required to satisfy throughout performance,

id. at 22, which were designed to meet “the industry standard of providing the intended level

of services.” Id. at 24. Minimum standards included that “[a]ll space covered by this

contract shall be free of obvious dirt, debris, and dust”; that “[t]rash cans shall be emptied

and kept clean and free of dirt, stains, and debris, and replace liners”; that “[f]urniture and

1

2

All exhibits are found in the appeal file, unless otherwise noted.

The purchase order also seems to indicate that each cleaning required five, six,

or seven workers, depending on the facility being cleaned and the season. See Exhibit 1 at

5-7. It appears, however, that ATI had only one janitorial services employee for the contract.

The record does not reflect that the USFS ever objected to ATI’s use of a single employee

to work this purchase order, and the USFS does not raise any such objection in its briefing.

CBCA 7283

3

all surfaces shall be free of obvious dust and dirt”; and that “all resilient floors” be “clean and

shine.” Id. at 24-25.

The purchase order included the clause titled “Contract Terms and

Conditions—Commercial Items (Oct 2018)” from Federal Acquisition Regulation (FAR)

52.212-4 (48 CFR 52.212-4 (2019)). See Exhibit 1 at 1, 9-11. That clause contained a

termination for cause provision, which read as follows:

The Government may terminate this contract, or any part hereof, for cause in

the event of any default by the Contractor, or if the Contractor fails to comply

with any contract terms and conditions, or fails to provide the Government,

upon request, with adequate assurances of future performance. In the event of

termination for cause, the Government shall not be liable to the Contractor for

any amount for supplies or services not accepted . . . .

Id. at 10 (quoting FAR 52.212-4(m)). It also included the following excusable delays

provision:

The Contractor shall be liable for default unless nonperformance is caused by

an occurrence beyond the reasonable control of the Contractor and without its

fault or negligence such as, acts of God or the public enemy, acts of the

Government in either its sovereign or contractual capacity, fires, floods,

epidemics, quarantine restrictions, strikes, unusually severe weather, and

delays of common carriers. The Contractor shall notify the Contracting

Officer in writing as soon as it is reasonably possible after the commencement

of any excusable delay, setting forth the full particulars in connection

therewith, shall remedy such occurrence with all reasonable dispatch, and shall

promptly give written notice to the Contracting Officer of the cessation of such

occurrence.

Id. at 9 (quoting FAR 52.212-4(f)).

On March 30, 2021, the USFS contracting officer exercised the USFS’s first option

to extend the contract through March 31, 2022. Exhibit 8 at 1.

ATI’s Performance Issues

ATI received several notices of noncompliance during contract performance, both

before (Exhibits 3, 4, 6, 7) and after (Exhibits 9, 11) the USFS exercised the first option. In

an August 19, 2021, email to the contractor which attached a notice of noncompliance dated

the same day, the USFS contracting officer reported that “[c]leaning has not been meeting

CBCA 7283

4

the contract standard and requires an equitable price reduction for the month of [August] for

nonconforming services.” Exhibit 10 at 5. In the notice, the contracting officer informed

ATI that “[t]he Office garbage and bathrooms have not been clean[ed]/removed by the

contractor for over a week,” that “[f]requency of work completed is approximately 5 times

over the last six weeks” and was “not free of obvious dirt and debris upon government visual

inspection,” and that “[t]he floors have only been vacuumed” and “[h]ard surfaced floors

have only been cleaned approximately 5 times in the past six weeks, not free of obvious dirt

and debris.” Exhibit 9. He also stated in the notice that “government personnel have been

cleaning the bathrooms, showers, and emptying multiple garbage cans in an effort to meet

a minimum cleaning standard for the Avery Janitorial.” Id.

In response, ATI reported that “[t]hrough discussions with our employee, we have

validated the concerns you noted in the Notice of Noncompliance” and indicated that the

employee had acknowledged not having performed two of the three required cleanings

during the week of August 13. Exhibit 10 at 1. ATI stated that its employee “was not very

cooperative when [ATI] read [her] the Notice of Noncompliance” and “immediately

terminated the call.” Id. ATI asserted that it “called her back several times with no success,”

had “sent her an email requesting to let us know if she is going to continue working for us,”

and had received no reply. Id. ATI indicated that “[b]ased on [the employee’s] actions on

the phone and her non[-]response to [ATI’s] email, we have begun searching for a

replacement just in case she does not return.” Id. It “ask[ed] for [the USFS’s] patience as

[ATI] work[s] diligently to find a new Janitor.” Id.

On August 27, 2021, the USFS contracting officer’s representative (COR) issued

another notice of noncompliance addressing issues identified during an inspection earlier that

day, including the fact that services were provided only once during the week of August 17

and that the only services provided on that day were trash removal, trash receptacle liner

changes, and restroom fixture cleaning and disinfection. Exhibit 11 at 1. The USFS asked

that deficiencies be corrected. Exhibits 11 at 1, 12 at 1-2.

On September 9, 2021, ATI’s janitorial employee quit. Exhibit 14 at 2-3. ATI did

not have anyone to take her place. On September 10, 2021, ATI sent an email notifying the

USFS COR of the employee’s resignation, stating that it would begin looking for a

replacement and representing that it would let the USFS know when a replacement was

found. Id. After the employee resigned, ATI did not provide any janitorial services.

The Cure Notice

On September 15, 2021, the USFS contracting officer issued ATI a cure notice, stating

that ATI was in breach of contract for its failure to provide janitorial services:

CBCA 7283

5

The cure notice is regarding the non-performance since 09/09/2021, you are

currently in breach of the contract terms and conditions. Due to your

employee’s recent resignation and abruptly quitting with no prior notice in

addition to recent performance issues, this has rendered the government with

no janitorial services and is a health and safety concern for the employee’s

[sic] within the government facilities. I have significant concern that the

current non-performance and ongoing performance issues have become a

major issue for the Avery office and require a written response with an

acceptable solution to cure the issue . . . to be submitted to [the contracting

officer].

Exhibit 13 at 1; see id. (“You are notified that the Government considers your contract

performance is non-compliant due to non-performance for the Avery Janitorial contract . . .

and is a condition that is endangering performance of the contract.”). ATI was to “respond

with a clear explanation and remedy to fulfill the contract requirements and to provide

continued janitorial services with a permanent solution regarding new employees and any

additional corrective actions.” Id. The contracting officer gave ATI ten days to cure the

condition and reserved the right to terminate for cause under FAR 52.212-4(m) if ATI failed

to do so. Id.

ATI did not respond to the cure notice.

Termination for Cause

On September 30, 2021, the USFS contracting officer issued a notice terminating the

contract for cause “due to failure to comply with the contract terms and conditions and the

failure to provide the Government with adequate assurances of future performance.”

Exhibit 15 at 1. The contracting officer indicated that because ATI had not responded to the

cure notice issued on September 15 and had not attempted to “remedy the performance

issue,” he was terminating the contract. Id. The contracting officer also cited to prior notices

of noncompliance from August 19 and 27, 2021. Id. He provided ATI with notice of its

appeal rights. Id. at 2.

On November 9, 2021, ATI sent a letter to the contracting officer responding to the

termination notice. Exhibit 18 at 2. As for the contracting officer’s complaint that ATI had

not responded to the September 15 cure notice, ATI indicated that it had not needed to

respond because, on September 9, it had told the USFS contract specialist that it was looking

for a replacement employee who would provide janitorial services under the contract, and

it would let the USFS know when it had found someone. Exhibit 17 at 1. ATI also objected

to the contracting officer’s citation to earlier performance problems and notices of

noncompliance, asserting that they could not be used as a basis for a termination for cause

CBCA 7283

6

because they had been corrected. Id. at 1-2. ATI asserted that the issues cited in the

termination notice “might have created inconveniences for the government, but we disagree

that these are necessary and sufficient reasons to demonstrate that [ATI] has acted in any way

that is substantially prejudicial to the goals and objectives of the contract or has performed

in a way or ways that fundamentally breached the contract.” Id. at 2 (internal quotation

marks omitted).

The USFS contracting officer responded by email on November 10, 2021, indicating

that the basis of the termination was ATI’s failure to perform, and he reiterated that he had

included appeal information in the termination notice through which ATI could challenge his

decision:

I have reviewed your response in your letter dated 11/09/2021 to the

Termination for Cause for [Purchase Order] No.: 12034320P0096 Avery

Janitorial that was issued on 09/30/2021. Overall, the termination is due to the

failure to perform.

Overview for Termination for Cause

•

•

09/15/2021 – Cure Notice sent and required a written response within

10 days. No written response to the email was received by the

Contracting Officer from [ATI].

09/30/2021 – Termination for Cause sent for failure to perform and to

provide services (no response received to the cure notice email sent on

09/15 and no performance provided for the contract since 09/09/2021

when the custodian quit).

Failure to perform is cause to terminate for cause within the terms and

conditions of the contract. The appeal process information was sent in the

notice of termination letter with additional information.

Exhibit 18 at 1.

ATI’s Release

When the contracting officer issued the notice of termination on September 30, 2021,

he also requested that ATI submit its final invoice for payment. Exhibit 22 at 5. On

November 23, 2021, he sent a draft copy of modification no. P00003 for ATI’s signature.

The purpose of the modification was to effectuate the termination for cause in a contract

modification and to deobligate excess funds. Id. at 2. Along with the modification, the

CBCA 7283

7

contracting officer provided ATI with a Contractor Notification and Release of Claims,

which the USFS needed to process final payment. Id.

ATI executed the release of claims document on November 23, 2021, through which

it agreed that, upon payment, ATI “does remise, release and discharge the Government, its

officers, agents, and employees of and from all liabilities, obligations, claims, and demands

whatsoever under or arising from the said contract.” Exhibit 19 at 3. The USFS indicates

that ATI also executed modification no. 3, but neither of the two copies of modification no. 3

in the record contains an ATI signature. See Exhibits 20, 21.

ATI’s Appeal to the Board

On December 23, 2021, ATI filed a notice of appeal with the Board, challenging the

termination for cause. In its notice of appeal, ATI alleged that, when it notified the COR on

September 9, 2021, that its janitorial employee had quit, it indicated that it would take time

to recruit and hire a replacement because of the staffing shortages that had resulted from the

COVID-19 pandemic and the need to find a qualified candidate. ATI attached four

documents to its notice of appeal: (1) a copy of the USFS contracting officer’s termination

decision; (2) the pages from its contract that reprint FAR 52.212-4; (3) the definition of

“force majeure” from a www.wifcon.com page; and (4) a “Record of Pre-Work Meeting”

that the parties signed on April 21, 2020. The USFS subsequently submitted the Rule 4

appeal file consisting of the parties’ contract and modifications, various notices of

noncompliance and related email communications, the cure notice, the termination decision,

and subsequent email communications regarding the termination.

The Board scheduled a hearing in this appeal to commence on May 31, 2023. The

USFS filed a pre-hearing brief, plus one additional appeal file exhibit, but ATI filed nothing.

The parties then elected to submit this appeal for decision on the written record under Board

Rule 19 rather than participate in a live hearing, and the Board provided both parties the

opportunity to add additional evidence, including declarations, to the record. Neither party

submitted anything.

Discussion

I.

Standard of Review

Under Board Rule 19 (48 CFR 6101.19), the parties can include in the written record

“(1) any relevant documents or other tangible things they want the Board to admit into

evidence; (2) affidavits, depositions, and other discovery materials that set forth relevant

evidence; and (3) briefs or memoranda of law that explain each party’s positions and

defenses.” 1-A Construction & Fire, LLP v. Department of Agriculture, CBCA 2693, 15-1

CBCA 7283

8

BCA ¶ 35,913, at 175,551 (citing Rule 19). “Based on the parties’ submissions, the Board

is authorized to make findings of fact, even if such findings require ‘credibility

determinations on a cold [paper] record, without the benefit of questioning the persons

involved,’ and can decide issues of law based on those factual findings.” Sylvan B. Orr v.

Department of Agriculture, CBCA 5299, 17-1 BCA ¶ 36,863, at 179,613 (quoting Bryant

Co., GSBCA 6299, 83-1 BCA ¶ 16,487, at 81,967).

Because ATI is being represented by a corporate representative rather than a lawyer,

we have provided ATI with “greater procedural latitude” than we otherwise might. See 1-A

Construction, 15-1 BCA at 175,551-52. Nevertheless, neither ATI’s representation decision

nor the parties’ submission on the record under Rule 19 alleviates the parties’ respective

obligations to prove the facts supporting their allegations or defenses. Sylvan B. Orr, 17-1

BCA at 179,613. “‘While [the Board] can make inferences from th[e] evidence and either

accept or deny the probative value of documents, statements or other extrinsic evidence, in

order for us to find for a party, that party’s evidence must establish,’ by a preponderance of

the evidence, ‘that it is entitled to relief.’” 1-A Construction, 15-1 BCA at 175,551 (quoting

Schoenfeld Associates, Inc., VABCA 2104, et al., 87-1 BCA ¶ 19,648, at 99,472).

II.

ATI’s Release of Claims

The USFS argues that because ATI executed a release of claims in order to obtain

final payment under this contract, it can no longer challenge the termination of its contract

for cause. Through the release language, ATI only released its own claims. A termination

for cause is a government claim. Malone v. United States, 849 F.2d 1441, 1443, clarified and

petition for rehearing denied, 849 F.2d 1441 (Fed. Cir. 1988). Nothing in the release

language bars ATI’s ability to defend against that government claim. Even if the release

could be interpreted more broadly to encompass ATI’s defenses, the USFS’s knowledge that

ATI was objecting to the termination for cause when ATI executed the release precludes the

USFS’s argument that the release covers ATI’s objections to the USFS’s claim. See Ahtna

Environmental, Inc. v. Department of Transportation, CBCA 5456, 17-1 BCA ¶ 36,600, at

178,306 (2016). To the extent that the USFS believes that modification no. 3 constitutes an

accord and satisfaction, there is no evidence in the record that ATI ever signed that

modification.

III.

The Applicability of FAR 52.212-4 to ATI’s Contract

The termination for cause provision upon which the USFS contracting officer relied

in terminating ATI’s contract is contained within the standard commercial items clause from

the version of FAR 52.212-4 that was in effect in 2020. The Court of Appeals for the Federal

Circuit’s decision in JBK Solutions & Services, LLC v. United States, 18 F.4th 704 (Fed. Cir.

2021), raises a question about that clause’s applicability to service contracts. In that

CBCA 7283

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decision, the Federal Circuit, dealing with the termination for convenience portion of that

clause, stated that “FAR 52.212-4 governs the termination of commercial item contracts for

the government’s convenience, and it does not apply to service contracts, such as the contract

at issue in this case.” Id. at 710. It then held that, “[b]ecause FAR 52.212-4 applies only to

commercial item contracts and because . . . [appellant’s] contract is not a commercial item

contract, the Claims Court erred in relying on FAR 52.212-4 to supply an applicable

termination for convenience clause.” Id.

On its face, it might be possible to read the sentence in JBK Solutions as holding that

the Government cannot apply FAR 52.212-4 to any service contract, whether it is one for

commercial services or not. Any such interpretation would directly conflict with the FAR

definition of a “commercial item” that was applicable when ATI executed its contract, a

definition that expressly viewed commercial services as a “commercial item”:3

Commercial item means—

....

(5)

Installation services, maintenance services, repair services, training

services, and other services if—

(i)

Such services are procured for support of an item referred to in

paragraphs (1), (2), (3), or (4) of this definition, regardless of whether

such services are provided by the same source or at the same time as

the item; and

(ii)

The source of such services provides similar services

contemporaneously to the general public under terms and conditions

similar to those offered to the Federal Government;

(6)

Services of a type offered and sold competitively in substantial

quantities in the commercial marketplace based on established catalog or

market prices for specific tasks performed or specific outcomes to be achieved

and under standard commercial terms and conditions. For purposes of these

services—

(i)

Catalog price means a price included in a catalog, price list,

schedule, or other form that is regularly maintained by the manufacturer

or vendor, is either published or otherwise available for inspection by

customers, and states prices at which sales are currently, or were last,

3

Effective December 6, 2021, the FAR was amended to replace the definition

of “commercial item,” which included commercial services, with separate definitions for the

terms “commercial product” and “commercial service.” 86 Fed. Reg. 61017 (Nov. 4, 2021).

CBCA 7283

10

made to a significant number of buyers constituting the general public;

and

(ii)

Market prices means current prices that are established in the

course of ordinary trade between buyers and sellers free to bargain and

that can be substantiated through competition or from sources

independent of the offerors.

(7)

Any item, combination of items, or service referred to in paragraphs (1)

through (6) of this definition, notwithstanding the fact that the item,

combination of items, or service is transferred between or among separate

divisions, subsidiaries, or affiliates of a contractor . . . .

FAR 2.101. The plain intent behind this regulatory definition was to “include[] certain

commercial services” in the “commercial item” regulatory contracting scheme. 60 Fed. Reg.

48231, 48232 (Sept. 18, 1995).

The Court in JKB Solutions based its statement excluding “services” from the

“commercial item” definition on the Government’s concession at oral argument that the

contract at issue there was “a service contract (and not a commercial item contract).” JKB

Solutions, 18 4th at 710 n.2. As at least one commentator has noted, perhaps “[t]he

appropriate distinction would have been between a contract for commercial services and a

contract for noncommercial services.” Vernon J. Edwards, “Commercial Items: Confusion

in Court,” 35 Nash & Cibinic Rep. ¶ 72 (Dec. 2021). Nevertheless, tribunals have

recognized, post-JKB Solutions, that FAR 52.212-4 properly continues to apply to contracts

that involve commercial services. See, e.g., Heroes Hire LLC v. Department of Veterans

Affairs, CBCA 7195, et al., 22-1 BCA ¶ 38,101, at 185,039-40; Heartland Energy Partners

LLC, ASBCA 62979, 22-1 BCA ¶ 38,200, at 185,520; Fluor Intercontinental, Inc., ASBCA

62550, et al., 22-1 BCA ¶ 38,105, at 185,101 n.4. We interpret JKB Solutions as meaning,

consistent with the stipulation of the parties underlying that decision, that contracts for

noncommercial services (or “other than commercial” services, as the FAR now calls them,

86 Fed. Reg. at 61017) are not covered by FAR 52.212-4.

Here, the janitorial services that ATI was providing were commercial services and,

therefore, within the then-applicable definition of a “commercial item.” They have a

product/service code (S201) and a product/service description (“Housekeeping–Custodial

Janitorial”), and commercial cleaning services are commercially available at catalog prices

on an hourly basis in the commercial market. Accordingly, the USFS acted appropriately in

applying FAR 52.212-4.

CBCA 7283

IV.

11

ATI’s Failure to Provide Janitorial Services

A.

ATI’s Default

In defending a challenge to a termination for cause, the Government bears the initial

burden of showing that termination was justified. Lisbon Contractors, Inc. v. United States,

828 F.2d 759, 765 (Fed. Cir. 1987); Care One EMS, LLC v. Department of Veterans Affairs,

CBCA 3170, 13 BCA ¶ 35,382, at 173,624.

Here, it is clear that ATI defaulted on its contractual obligation to provide continuous

janitorial services. Beginning in August 2021, ATI failed to provide janitorial services at the

Avery main building and warehouse three times a week, as required by the contract. From

September 10, 2021, until the purchase order was terminated on September 30, 2021, ATI

provided no services at all. “The Government is entitled to strict compliance with the

provisions of its service contracts.” Johnson Management Group CFC Inc., HUD BCA

97-C-109-C2, 99-2 BCA ¶ 30,520, at 150,705. “When the Government shows that a

contractor with a service contract requiring daily [or regularly scheduled] performance of

necessary services . . . has failed to perform those services over the course of even a short

period of time, it has established default.” Heroes Hire, 22-1 BCA at 185,037.

“Since occasional failures to render perfect performance during each service

performance [are] inherent in such contracts, a termination for default will be sustained only

if the performance failure is more than de minimis and reasonably substantial.” Johnson

Management Group, 99-2 BCA at 150,705. Here, though, ATI acknowledged during

performance that the only person tasked with providing services under this purchase order

skipped some days of required performance in August, and ATI failed to provide any

services for the three weeks in September leading to termination. “A breach is material when

it . . . goes to the essence of the contract.” Kiewit-Turner, a Joint Venture v. Department of

Veterans Affairs, CBCA 3450, 15-1 BCA ¶ 35,820, at 175,175 (2014) (quoting Thomas v.

Department of Housing & Urban Development, 124 F.3d 1439, 1442 (Fed. Cir. 1997)). The

essence of ATI’s purchase order was to provide janitorial services. Its failure to provide any

services after September 9, in and of itself, justifies termination.4

4

ATI argues that it was inappropriate for the contracting officer to cite to its

performance issues from August 2021 as support for termination because it had rectified that

month’s cleaning deficiencies by early September 2021. Even if it was, ATI does not deny

that it provided no cleaning services after September 9, 2021, which, in and of itself,

constitutes a default.

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12

In its notice of appeal, ATI asserts that the contracting officer “made a very serious

legal mistake when he did not follow the contract’s Record of Pre-Work Meeting . . .

definitization guidelines and instructions.” Soon after executing the purchase order, the

parties conducted a pre-work meeting on April 24, 2020, during which, according to the

typed-in discussion on the record of that meeting, the USFS represented that if ATI “failed

to prosecute the work w/ diligence to insure completion w/in specified time, govt may take

over & contractor may be liable for increased costs.” Notice of Appeal, Exhibit 4. In a list

of clauses on the pre-printed “Record of Pre-Work Meeting” form that the parties signed, the

box for “Termination for Default” was “not marked with an ‘X,’” which ATI argues was

necessary to “correctly execute and definitize” the contract. Yet, it is clear from the report

that the termination provisions of the purchase order were discussed during the meeting. In

any event, contrary to ATI’s understanding, it is the written contract, not the “Record of

Pre-Work Meeting,” that identifies the terms of the parties’ agreement and establishes their

rights and obligations. See H.N. Bailey & Associates, ASBCA 29298, 87-2 BCA ¶ 19,763,

at 100,004 (“[W]here the parties have entered into a written contract, the rights, duties and

obligations of appellant and respondent are determined by the provisions found in the

contract.”). Any minuscule error on the pre-work meeting form does not modify ATI’s

previously executed contract, eliminate ATI’s obligation to perform that contract, or bar the

USFS from terminating the contract for cause.

B.

ATI’s Allegations That Default Was Excusable

“Once the Government has satisfied its burden and default has been established, the

burden shifts to the contractor to demonstrate that the causes of the default were excusable

under the terms of the contract—that is, that they were beyond the contractor’s control and

not due to its own fault or negligence.” Heroes Hire LLC v. Department of Veterans Affairs,

CBCA 7195, et al., 22-1 BCA ¶ 38,101, at 185,037.

In its notice of appeal, ATI asserts that it was unable to perform because, after its sole

employee quit, it could not hire another because of the effects of COVID-19. Under FAR

52.212-4(f), performance failures will be excused if “nonperformance is caused by an

occurrence beyond the reasonable control of the Contractor and without its fault or

negligence such as . . . epidemics.” Were ATI able to show that the COVID-19 pandemic

precluded it from hiring a replacement worker, it might be able to establish a basis for

overturning the termination for cause.

ATI has submitted no evidence to support its position. It has not detailed any efforts

that it made to hire a replacement, provided any analyses of the job market in and around

September 2021 that reflect worker unavailability, or submitted any evidence showing that

it acted with any sense of urgency after its sole janitorial services employee quit. The record

evidence shows that, for a full month before the employee quit, ATI was well aware that she

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13

was disgruntled, was not performing well, and might quit. Although it stated in mid-August

2021, after it became skeptical about her continued employment, that it was going to start

looking for a replacement, there is no evidence in the record that it actually did. As we have

previously held, “[m]erely citing the word ‘COVID,’ without more, does not provide a basis

for excusing a failure.” GC Columbia, LC v. General Services Administration, CBCA 7374,

22-1 BCA ¶ 38,197, at 185,503 (quoting United Facility Services Corp. v. General Services

Administration, CBCA 5272, 22-1 BCA ¶ 38,090, at 184,977). The contractor has to show,

through evidence, how COVID affected its ability to perform. Central Co., ASBCA 62624,

22-1 BCA ¶ 38,057, at 184,790. ATI has presented no such evidence. It cannot excuse

nonperformance without it.

V.

ATI’s Failure to Respond to the Cure Notice

Even though not required to do so in the circumstances here,5 the USFS contracting

officer issued a cure notice to ATI on September 15, 2021, providing ATI with ten days to

cure its failure to provide services. ATI did not respond to the cure notice. ATI asserts,

however, that it did not need to respond because, before the cure notice was issued, it had

told the USFS COR that it was looking for a replacement and would let her know when it had

found one.

Through the cure notice, the contracting officer asked for more information than what

ATI had provided the COR. He had previously notified ATI that government employees

working in the Avery offices were cleaning floors and bathrooms themselves—tasks outside

of their job responsibilities—so that they could continue to perform the regular duties that

they were hired to perform. See Exhibit 9 at 1. Because that situation could not continue,

the contracting officer directed ATI to provide “a clear explanation and remedy to fulfill the

contract requirements and to provide continued janitorial services with a permanent solution

regarding new employees and any corrective action.” Exhibit 13 at 1. FAR 52.212-4(m)

allows a contracting officer “to seek adequate assurances of future performance and

terminate the contract if such assurances are not received.” Alan E. Fricke Memorials, Inc.

v. Department of Veterans Affairs, CBCA 7352, et al., 23-1 BCA ¶ 38,262, at 185,794; see

FAR 52.212-4(m) (“The Government may terminate this contract, or any part hereof, for

cause . . . if the Contractor . . . fails to provide the Government, upon request, with adequate

assurances of future performance.”). ATI informed the COR only that, at some indefinite

5

“[A] cure notice is not necessary [under a commercial items contract] if the

contractor has already failed to perform some services that were previously due.” Heroes

Hire, 22-1 BCA at 185,039; see, e.g., NDJ Restoration, Inc. v. General Services

Administration, GSBCA 14487, 98-2 BCA ¶ 29,987, at 148,316; Chambers-Thompason

Moving & Storage, Inc., ASBCA 43260, 93-3 BCA ¶ 26,033, at 129,408.

CBCA 7283

14

time in the future, it hoped to have a new employee. ATI’s actions made clear that, until

then, there would be no janitorial services.

In the circumstances here, ATI’s failure to present the contracting officer with a more

definite plan or to respond to the cure notice at all provides a separate basis justifying the

contracting officer’s termination for cause decision. See Danzig v. AEC Corp., 224 F.3d

1333, 1338 (Fed. Cir. 2000) (A contractor must “give reasonable assurances of performance

in response to a validly issued cure notice.”); International Verbatim Reporters, Inc. v.

United States, 9 Cl. Ct. 710, 723 (1986) (“Once the 10-day cure notice was issued to

plaintiff, its failure to correct, explain or communicate with defendant during the period what

corrective action that would be taken, justified a termination for default.”).

Decision

ATI’s appeal is DENIED. The USFS’s termination for cause is sustained.

Harold D. Lester, Jr.

HAROLD D. LESTER, JR.

Board Judge

We concur:

H. Chuck Kullberg

H. CHUCK KULLBERG

Board Judge

Marian E. Sullivan

MARIAN E. SULLIVAN

Board Judge