Petition for Writ of Certiorari — ASG Solutions Corp., dba American Systems Group, Petitioner v. United States

No. _________

IN THE

Supreme Court of the United States

____________________________

ASG SOLUTIONS CORP., DBA AMERICAN

SYSTEMS GROUP,

Petitioner,

v.

UNITED STATES,

Respondent.

____________________________

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

____________________________

PETITION FOR WRIT OF CERTIORARI

____________________________

Owen M. Praskievicz

Counsel of Record

SOLOMON WARD

SEIDENWURM &

SMITH LLP

401 B Street, Suite 1200

San Diego, CA 92101

(619) 231-0303

opraskievicz@swsslaw.com

Counsel for Petitioner

i

QUESTION PRESENTED

Under the landmark decision Schlesinger v.

United States, 390 F.2d 702 (Ct. Cl. 1968), the

termination for default (“T4D”) of a federal contract is

void if the contracting officer abdicates their

independent administrative discretion. This core

principle was codified in the Federal Acquisition

Regulation (FAR) 49.402-3(f) factors adopted in 1984,

which mandate that a contracting officer “shall”

consider seven performance-related business factors

prior to T4D. In a series of decisions culminating in

Dep’t of Transp. v. Eagle Peak Rock & Paving, Inc., 69

F.4th 1367 (Fed. Cir. 2023), however, the Federal

Circuit has eradicated Schlesinger and the role of the

FAR factors, establishing that a contracting officer’s

failure to exercise independent judgment is legally

irrelevant and T4D is proper as an automatic

consequence of a contractor’s technical breach.

The questions presented are:

1. Whether the government must prove that a

contracting

officer

exercised

independent,

contemporaneous discretion prior to T4D, or whether

a T4D remains valid when the evidentiary record

contains zero evidence that the contracting officer

exercised any independent business discretion, so

long as an underlying breach occurred.

2. Whether the government may satisfy its

burden to prove the contemporaneous exercise of

administrative discretion by relying solely on an

unauthenticated memorandum that

appears

fraudulent on its face and is admitted “not for the

truth of its contents.”

ii

PARTIES TO THE PROCEEDING

The parties to the proceeding in the United States

Court of Appeals for the Federal Circuit were

Petitioner ASG Solutions Corp. DBA American

Systems Group and Respondent the United States of

America, acting by and through the Department of

Navy.

Pursuant to Supreme Court Rule 29.6,

Petitioner states that it has no parent corporation and

that no publicly held company owns 10 percent or

more of its stock.

iii

RELATED PROCEEDINGS

are:

The proceedings directly related to this petition

ASG Solutions Corp., dba American Systems

Group v. United States, No. 2024-1755, United States

Court of Appeals for the Federal Circuit, judgment

entered December 15, 2025, combined petition for

panel rehearing and rehearing en banc denied March

3, 2026.

ASG Solutions Corp., dba American Systems

Group v. United States, No. 23-1029, United States

Court of Federal Claims, judgment entered March 29,

2024.

ASG Solutions Corp., dba American Systems

Group v. United States, No. 24-1966 C, United States

Court of Federal Claims, judgment entered May 6,

2026.

iv

TABLE OF CONTENTS

QUESTION PRESENTED ......................................... i

PARTIES TO THE PROCEEDING........................... ii

RELATED PROCEEDINGS..................................... iii

TABLE OF AUTHORITIES ..................................... vi

PETITION FOR A WRIT OF CERTIORARI .............1

OPINIONS BELOW....................................................1

JURISDICTION..........................................................1

STATUTORY PROVISION INVOLVED ...................1

STATEMENT OF THE CASE ....................................3

A.

The Contractor and the Award ........................4

B.

The Disputes Over Interpretation of the

Task Order........................................................4

C.

Termination for Default and the Absence of

Contemporaneous Exercise of Discretion........5

D.

The Unauthenticated Memorandum ...............6

REASONS FOR GRANTING THE PETITION .........8

I.

The Federal Circuit Has Eradicated the

Foundational Requirement of Independent

Discretion Established in Schlesinger .............9

A.

The Federal Circuit’s Decision Conflicts

With Principles Established By This

Court That Require Exercise of

Independent Agency Discretion ............9

v

B.

The Federal Circuit’s Jurisprudence Has

Reduced the FAR to an Unforceable

Suggestion............................................11

II.

Allowing the Government to “Prove” Discretion

via Unauthenticated Memoranda..................13

III.

The Questions Presented are of Exceptional

National

Importance

to

the

Federal

Procurement System ......................................15

IV.

A.

T4D Is a “Corporate Death Sentence”

Demanding Procedural Safeguards ....15

B.

This Court Is the Only Venue Capable of

Correcting the Federal Circuit............16

This Case Is an Ideal Vehicle to Restore the

Schlesinger Standard .....................................17

CONCLUSION..........................................................18

APPENDIX A: United States Court of Appeals for the

Federal Circuit, Opinion, December 15, 2025..........1a

APPENDIX B: United States Court of Federal

Claims, Memorandum Opinion, March 29, 2024.....9a

APPENDIX C: United States Court of Appeals for the

Federal Circuit, Order Denying Rehearing, March 3,

2026 .........................................................................63a

APPENDIX D: Department of the Navy, Notice

of Termination to Prime Contractor, October 30,

2024 .........................................................................65a

APPENDIX E: Department of the Navy, Request to

Terminate for Default .............................................79a

APPENDIX F: Statutory and Regulatory

Provisions ..............................................................113a

vi

TABLE OF AUTHORITIES

Cases:

Darwin Constr. Co. v. United States

811 F.2d 593 (Fed. Cir. 1987) ...............................9

DCX, Inc. v. Perry

79 F.3d 132 (Fed. Cir. 1996) ............................i, 11

Dep’t of Transp. v. Eagle Peak Rock & Paving, Inc.

69 F.4th 1367 (Fed. Cir. 2023) ..................i, 12, 13

DeVito v. United States

413 F.2d 1147 (Ct. Cl. 1969)...............................11

J.D. Hedin Constr. Co. v. United States

408 F.2d 424 (Ct. Cl. 1969)...........................10, 11

McDonnell Douglas Corp. v. United States

182 F.3d 1319 (Fed. Cir. 1999) .....................11, 12

Motor Vehicle Mfrs. Ass’n v. State Farm

463 U.S. 29 (1983)...............................................10

Nuclear Research Corp. v. United States

814 F.2d 647 (Fed. Cir. 1987) ...............................9

Schlesinger v. United States

390 F.2d 702 (Ct. Cl. 1968)

..................................... 9, 10, 11, 12, 13, 15, 16, 17

SEC v. Chenery Corp.

318 U.S. 80 (1943)...............................................10

vii

Statutes

28 U.S.C. section 1254(1) ...........................................1

28 U.S.C. section 1295(a)(3), (10) ............................16

Regulations

Title 48 Code of Federal Regulations, section 49.4023(f) ..................... 1, 2, 3, 4, 5, 6, 8, 9, 11, 13, 14, 15

Title 48 Code of Federal Regulations, section 52.2498(a) ........................................................................3

Title 48 Code of Federal Regulations, section 52.2498(a)(1) ..................................................................10

Court Rules

Federal Rules of Evidence Standards 803(6) ..........14

Federal Rules of Evidence Standards 901 ..............14

1

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The unreported opinion of the United States

Court of Appeals for the Federal Circuit (App. 1a-8a)

is available at 2025 U.S. App. LEXIS 32663. The

order of the Federal Circuit denying the combined

petition for panel rehearing and rehearing en banc

(App. 63a-64a) is unreported. The opinion of the

United States Court of Federal Claims granting

summary judgment to the United States (App. 9a62a) is reported at 170 Fed. Cl. 485.

JURISDICTION

The judgment of the court of appeals was entered

on December 15, 2025 (App. 1a-8a). A combined

petition for panel rehearing and rehearing en banc

was denied March 3, 2026. App. 63a-64a. The

jurisdiction of this Court is invoked under 28 U.S.C. §

1254(1).

STATUTORY PROVISION INVOLVED

This case involves the Federal Acquisition

Regulations provision governing the contracting

officer’s exercise of discretion prior to terminating a

government contract for default. Title 48, Code of

Federal Regulations, § 49.402-3(f) provides in

pertinent part:

(f)

The contracting officer shall

consider the following factors in

determining whether to terminate

a contract for default:

2

(1)

The terms of the contract and

applicable laws and regulations.

(2)

The specific failure of the

contractor and the excuses for the

failure.

(3)

The availability of the supplies or

services from other sources.

(4)

The urgency of the need for the

supplies or services and the period

of time required to obtain them

from other sources, as compared

with the time delivery could be

obtained from the delinquent

contractor.

(5)

The degree of essentiality of the

contractor in the Government

acquisition program and the effect

of a termination for default upon

the contractor’s capability as a

supplier under other contracts.

(6)

The effect of a termination for

default on the ability of the

contractor to liquidate guaranteed

loans, progress payments, or

advance payments.

(7)

Any other pertinent facts and

circumstances.

48 C.F.R. § 49.402-3(f) (2023) (emphasis added).

3

Title 48, Code of Federal Regulations, § 52.249-8

provides in pertinent part:

Default (Fixed-Price Supply and Service)

(Apr 1984)

(a) (1) The Government may, subject to

paragraphs (c) and (d) of this clause, by

written notice of default to the

Contractor, terminate this contract in

whole or in part if the Contractor fails to(i) Deliver the supplies or to perform

the services within the time specified

in this contract or any extension;

(ii) Make progress, so as to endanger

performance of this contract (but see

paragraph (a)(2) of this clause); or

(iii) Perform any of the other

provisions of this contract (but see

paragraph (a)(2) of this clause).

48 C.F.R. § 52.249-8(a) (2023) (emphasis added).

STATEMENT OF THE CASE

This case arises from the Department of the

Navy’s (“Navy”) termination for default (“T4D”) of a

non-personal service firm-fixed price task order

contract issued to ASG Solutions Corp., dba American

Systems Group (“ASG”). Appx2958-2992 1. Before

Citations to “Appx” refer to the joint appendix filed in the

United States Court of Appeals for the Federal Circuit.

1

4

executing a T4D the Government must exercise

independent discretion. That discretion is typically

evidenced by the consideration of the mandatory

factors enumerated in FAR 49.402-3(f). Here, the

courts below sustained the drastic sanction of T4D

finding that (1) because the contractor failed to

perform the contract there is no abuse of discretion;

and (2) the evidence of considering the FAR factors is

satisfied by an unauthenticated, memorandum

(“Memorandum”) that appears fraudulent on its face

that was produced and referenced for the first time

just 5 days prior to summary judgment. (App. 61a

(CFC Opinion); App. 79a-112a (Memorandum);

Appx4654 (Navy Reply).

A. The Contractor and the Award

ASG is a small business that for more than two

decades and across more than 125 task orders valued

in excess of $100 million, has performed federal

contracts without a single termination, cure notice, or

sub-satisfactory CPARS rating. Appx79. On

September 28, 2022, the Navy awarded ASG the Task

Order to provide advisory assistance services to

NAVFAC Southeast at Naval Air Station

Jacksonville. Appx2958.

B. The Disputes Over Interpretation of the

Task Order

Disputes arose immediately following award.

Appx4621-4622. Navy told ASG that it must supply

20 professionals that matched Attachment 2 to the

Task Order. Appx4610-4611. Appx4621-4622. Navy

asserted the right to unilaterally reject resumes.

Appx3688. Navy refused to provide any indication of

5

the work to actually be performed and refused to issue

work tasks under the performance work statement

(“PWS”) to ASG. Appx4624. ASG disputed Navy’s

interpretations of the Contract. Appx4621-4624.

Nevertheless, ASG at all times during the term of the

Contract in good faith attempted to comply with

Navy’s interpretations and demands. Appx46124617. In fact, ASG performed every task it was

assigned during the 186 days prior to T4D. Appx4625.

C. Termination for Default and the Absence

of

Contemporaneous

Exercise

of

Discretion

On April 4, 2023, Navy issued T4D. App.65a-78a.

Following T4D, ASG filed the Complaint on July 3,

2023. Appx78-114. ASG’s complaint alleged that the

Navy had terminated ASG in bad faith and failed to

exercise the discretion evidenced by consideration of

the FAR 49.402-3(f) factors. Appx99-109. Navy filed

its Answer September 29, 2023. Appx419-452. The

Answer does not include an allegation that Navy

exercised discretion prior to T4D. Id.

On December 22, 2023, ASG filed its motion for

summary judgment (“ASG MSJ”). Appx453-503.The

ASG MSJ reiterated and developed the argument

that the Agency had not pleaded the exercise of the

discretion typically evidenced by the mandatory FAR

49.402-3(f) factors, and therefore the T4D must be

converted to termination for convenience (“T4C”).

Appx500-501.

On February 12, 2024, Navy filed its cross-motion

for MSJ (Appx2893-2950) and its reply brief on March

7, 2024. Appx4654. However, the supporting

6

declarations of the contracting officer did not describe

any conduct amounting to an exercise of discretion by

the Navy prior to T4D, nor did they identify, attach,

reference, or authenticate a contemporaneous

document reflecting conduct amounting to an exercise

of discretion or consideration of the FAR 49.402-3(f)

factors. Appx4564-4570; Appx4749-4751.

On February 26, 2024, ASG filed its Response.

Appx4571-4607. ASG emphasized the position of ASG

that the Navy had admittedly abdicated its duty to

exercise discretion prior to T4D. Appx4578;

Appx4600-4602.

D. The Unauthenticated Memorandum

On March 7, 2024, Navy filed its Reply.

Appx4654-4679. This Reply was supported by an

unauthenticated Memorandum titled “Request to

Terminate for Default” (App. 79a-112a) bearing a

typed date of March 17, 2023 and a digital signature

block that did not contain a date-stamp, as follows:

/ / / / /

/ / / / /

/ / / / /

/ / / / /

/ / / / /

/ / / / /

/ / / / /

7

App. 111a-112a. This Memorandum was not

accompanied by any transmittal email. App. 79a112a. It bore no page numbers, no Navy standard

subject identification code, and no originator’s code,

contrary to the Department of the Navy’s

Correspondence Manual SECNAV M-5216.5. App.

79a-112a (Memorandum); Dep’t of Navy, SECNAV M5216.5, Department of the Navy Correspondence

Manual,

ch.

7

(2015),

https://www.secnav.navy.mil/doni/SECNAV%20Man

uals1/5216.5%20%20CH-1.pdf. The digital signature

lacks the date-and-time stamp present on every other

digitally signed Navy document in the record. The

memorandum referenced an incorrect contract

number. See App. 79a. The signature page is a

8

standalone page detached from the body of the

document. App. 111a-112a.

On March 12, 2024, oral argument was heard.

Appx34-35, Appx59. ASG objected to the

Memorandum at oral argument on the grounds of

lacking foundation and waiver. Appx36-37. On March

29, 2024, the Court of Federal Claims entered its

memorandum opinion denying the ASG MSJ and

granting the Navy’s cross-motion. App. 9a-62a.

Notably, the court relied on the Memorandum to find

that “the contracting officer considered the relevant

factors before the Navy made the decision to

terminate for default.” App. 61a n.8. The trial court

further held in the alternative that “even without the

Navy’s analysis of the [FAR 49.402-3(f)] factors, the

termination for default would not be an abuse of

Navy’s discretion because ASG failed to perform the

contract.” App. 61a. The Federal Circuit affirmed,

stating it “agree[d] with the Claims Court’s analysis,”

thereby sustaining the judgment and the lower

court’s

reliance

on

the

unauthenticated

Memorandum. App. 2a. ASG’s combined petition for

panel and en banc rehearing was subsequently

denied. App. 63a-64a.

REASONS FOR GRANTING THE PETITION

The decision below sanctions a regime in which

the government need not present evidence that it

exercised discretion prior to issuing the “drastic

sanction” of termination for default. The Federal

Circuit’s affirmance further erodes the FAR 49.4023(f) mandatory deliberative safeguards into an

optional paperwork formality.

9

This Court’s review is warranted.

I.

The Federal Circuit Has Eradicated the

Foundational Requirement of Independent

Discretion Established in Schlesinger

A. The Federal Circuit’s Decision Conflicts

With Principles Established By This

Court That Require Exercise Of

Independent Agency Discretion

It has long been the law that a default

termination is a drastic sanction that may be

sustained only where the contracting officer has, in

fact, exercised “fair and reasonable” discretion and

acted “in the best interests of the Government.”

Darwin Constr. Co. v. United States, 811 F.2d 593,

596–98 (Fed. Cir. 1987); Nuclear Research Corp. v.

United States, 814 F.2d 647, 649 (Fed. Cir. 1987).

That requirement is not aspirational. The FAR

codifies it in mandatory terms: a contracting officer

“shall consider” each of the seven factors enumerated

at FAR 49.402-3(f) before declaring default—

including the contractor's excuses, the availability of

alternative sources, the urgency of need, the

essentiality of the contractor, and “any other

pertinent facts and circumstances.” FAR 49.402-3(f).

Where that discretion is abdicated, the default

termination “will be set aside.” Darwin, 811 F.2d at

597-98.

The roots of this doctrine trace back to

Schlesinger v. United States, 390 F.2d 702, 707 (Ct.

Cl. 1968), where the Court of Claims emphasized that

even when a contractor is in a “technical default” or a

“bare default”, the government is not automatically

10

forced to terminate the contract. Because the decision

to terminate for default is a discretionary act (see FAR

52.249-8(a)(1) [“The Government may…terminate

this contract…”], the Schlesinger court recognized

that procurement officials must exercise judgment in

terminating an agreement for default and may not act

as automatons. Id. at 708. Thus, when a contract

vests a contracting officer with administrative

discretion, the “abdication of responsibility [can never

be] sanction[ed].” Id. at 709. This ruling is a

procurement-law

corollary

to

this

Court’s

foundational administrative law precedents.

As this Court established in SEC v. Chenery

Corp., 318 U.S. 80 (1943), and Motor Vehicle Mfrs.

Ass’n v. State Farm, 463 U.S. 29 (1983), agency action

cannot be sustained by post-hoc rationalizations, nor

can it survive when the agency fails to examine the

relevant data and articulate a rational connection

between the facts and the choice made. Yet, by

holding that a T4D may be sustained even when the

record demonstrates a total abdication of the

Contracting Officer’s independent discretion and an

abject failure to consider mandatory regulatory

factors, the Federal Circuit has created, without

justification, an unwarranted carve-out to Chenery

and State Farm. The Supreme Court must grant

certiorari to clarify that federal agencies cannot

escape

the

requirement

of

reasoned,

contemporaneous discretion simply because they are

acting in a procurement capacity.

Last but not least, fundamental to Schlesinger

and the importance that some discretion be exercised,

is the undeniable fact that T4D has harsh

consequences and repercussions on the contractor and

11

the government. T4D is a “drastic sanction.” J.D.

Hedin Constr. Co. v. United States, 408 F.2d 424, 431

(Ct. Cl. 1969). T4D is a species of forfeiture that is

strictly construed. DeVito v. United States, 413 F.2d

1147, 1153 (Ct. Cl. 1969). This is the case today as it

was in 1969. T4D is the death knell for a federal

contractor. This fact compels that discretion be

exercised prior to T4D.

B. The Federal Circuit’s Jurisprudence Has

Reduced the FAR to an Unenforceable

Suggestion

The Federal Circuit began to shift away from

Schlesinger in the case of DCX, Inc. v. Perry, 79 F.3d

132 (Fed. Cir. 1996). In DCX, the contractor claimed

the T4D invalid because the government had failed to

consider the FAR 49.402-3(f) factors. Id. at 135. The

court affirmed the government’s T4D and commented

that the contracting officer’s failure to consider one or

more of these factors does not require conversion of

T4D to termination for convenience. Id. at 135.

However, notably, in DCX, in place of consideration of

the FAR factors, was testimony by the contracting

officer explaining conduct of the government

including periods of forbearing from termination. Id.

Thus, the record in DCX is not devoid of evidence of

conduct equating to the exercise of contemporaneous

discretion. Based on this fact, DCX is arguably

consistent with the rule laid out in Schlesinger,

although it completely gutted the role of FAR 49.4023(f) by finding that evidence of these factors was not

a prerequisite to finding discretion was exercised.

DCX, 79 F.3d at 135.

12

The Federal Circuit’s decision in McDonnell

Douglas Corp. v. United States, 182 F.3d 1319 (Fed.

Cir. 1999) further narrowed the role of Schlesinger. In

McDonnell, the court parsed the Schlesinger decision

and erroneously concluded: “In short, Schlesinger

bars only a termination for default in which there is

no considered nexus between the default termination

and the contractor’s performance under the contract.”

Id. at 1326 (italics in original). This conclusion

distorts the rationale underlying Schlesinger and

unduly focuses on the facts of that case and the

outcome. As detailed above, the Schlesinger court

recognized that there is discretion in the decision to

terminate and, where there is discretion afforded an

agency, that discretion must be exercised. True, the

McDonnell court pays lip service to this requirement

by stating the rule: “The level of discretion that must

be exercised by the government before terminating a

contract for default is a question of law, which we

review de novo.” McDonnel Douglas Corp.. 182 F.3d

at 1325. However, the consideration of the “level of

discretion” is completely eliminated by adopting a

self-fulfilling rule that the only discretion that need

be exercised must be as to whether there is in fact a

contractor default that is a breach of the contract.

Thus, McDonnell paved the way to destroy any

review of discretion by the courts in connection with

T4D, which culminated in the Federal Circuit in Dep’t

of Transp. v. Eagle Peak Rock & Paving, Inc., 69 F.4th

1367 (Fed. Cir. 2023). In Eagle Peak, the Court

concluded: “as long as ‘the termination for default was

predicated on contract-related issues,’ i.e., ‘the

government’s default termination was not pretextual

or unrelated to Contractors’ alleged inability to fulfill

their obligations under the contract,’…the reasoning

13

of the contracting officer at the time of termination is

not the subject of the CDA adjudication…” Id. at 1377

(quoting McDonnell, 182 F.3d at 1321, 1326). By

focusing solely on whether the contracting officer was

considering issues as to the materiality of an alleged

breach, the court in Eagle Peak eliminates any

consideration of the performance and businessrelated factors contemplated by Schlesinger and its

progeny and codified in FAR 49.402-3(f).

In sum, after Eagle Peak, there is no requirement

at all for consideration of the drastic impacts of T4D

on the contractor or the government. The only “nexus”

for consideration involves the materiality of the

alleged breach. This effectively eradicates the

Schlesinger line of decisions, and ignores this Court’s

direction that where an agency is afforded discretion,

that discretion must be exercised.

II. Allowing the Government to “Prove”

Discretion via Unauthenticated Memoranda

The government did not plead its exercise of

discretion in this case. Appx419-452. It identified no

contemporaneous deliberation in its pleadings. Id. It

filed a cross motion seeking summary judgment that

did not allege or provide any evidence of the

contemporaneous exercise of discretion. Appx28932950. Thus, incredibly, no contracting officer

declaration evidencing the consideration of anything

beyond the alleged contract interpretation issues in

dispute. Appx4564-4570; Appx4749-4751. It is

apparent from the record that the government does

not consider itself bound to consider anything beyond

the alleged breaches of contract at issue.

14

Only when confronted with the arguments laid

out by ASG in its opposition filing did the government

change tack ever so slightly. The government filed

with its reply brief additional “evidence” including the

unauthenticated Memorandum. App. 79a-112a. The

dubious origin of this Memorandum is undeniable.

The Memorandum is rife with problems, including it

was presented without any foundation and fails basic

Federal Rules of Evidence Standards (FRE 901, FRE

803(6)).

Appx4749-4751. Its most damning

characteristic, however, is what appears to be the

fraudulent digital signature of the contracting officer

which does not include a time and date stamp. App.

111a. The government has not, will not and can not

explain how a digital signature may be legitimately

generated without a time and date stamp.

The Memorandum violates Navy policy

requirements of the Department of the Navy's

Correspondence Manual 5216.5. Dep’t of Navy,

SECNAV M-5216.5, Department of the Navy

Correspondence

Manual,

ch.

7

(2015),

https://www.secnav.navy.mil/doni/SECNAV%20Man

uals1/5216.5%20%20CH-1.pdf. The Federal Circuit

nevertheless held that the memorandum was

admissible—"not for the truth of its contents, but only

to show that the contracting officer addressed the

factors required by FAR 49.402-3(f).” App. 8a n. 3.

That reasoning is doubly flawed. The non-hearsay use

the Federal Circuit endorsed—offering the document

“to show” that the factors were addressed—is

precisely a use for the truth of what the memorandum

asserts. And, in any event, an unauthenticated

document of unknown provenance cannot supply that

showing. It cannot demonstrate that the contracting

officer engaged in the requisite deliberation any more

15

than it can demonstrate what that deliberation

concluded.

Based on what appears on its face to have been a

fraudulently prepared post-hoc memorandum, the

lower courts allowed the government to terminate

without meeting its burden of proving the exercise of

independent judgment prior to T4D. The result is

that the Schlesinger doctrine is reduced to a

paperwork exercise that agencies can backfill on the

eve of dispositive motions, and without being crossexamined.

III. The Questions Presented are of Exceptional

National Importance to the Federal

Procurement System

A. T4D Is a “Corporate Death Sentence”

Demanding Procedural Safeguards

The Federal Government enters into hundreds of

thousands of contracts annually. T4D is the most

consequential remedial tool the government wields

against its contractors. Under the rule the Federal

Circuit has now embraced, the nominal safeguard

against retaliatory and arbitrary abuse by the

government established by the prior case law and the

FAR 49.402-3(f) factors is completely eliminated.

Provided the government can later show a breach, it

need not give a second thought to the performance

and business-related considerations of FAR 49.4023(f). The ripple effect on federal contracting is

significant.

T4D triggers reprocurement liability for the

contractor. The contractor’s performance history is

16

scarred irretrievably and reported in the Federal

Awardee Performance and Integrity Information

System. This jeopardizes the contractor’s ability to

compete for future federal work and for practical

purposes, due to the stigma of a T4D past

performance record, deprives the government of that

contractor’s future participation. T4D may be the

basis for initiation of debarment as occurred in this

case. See Notice of Proposed Debarment, C.A. Doc. 11

(judicially noticed by the court of appeals, C.A. Doc.

58). Because the consequences are so severe and so

asymmetrical, the law has always insisted that the

government make a contemporaneous, deliberate,

and documented judgment that default is warranted.

Notably, the Schlesinger doctrine protects the

taxpayers also, by ensuring contracting officers

actually weigh the massive reprocurement costs and

project delays before reflexively firing contractors

with a default termination.

B. This Court Is the Only Venue Capable of

Correcting the Federal Circuit

The Federal Circuit possesses exclusive

jurisdiction over appeals from the Court of Federal

Claims and the boards of contract appeals. 28 U.S.C.

§ 1295(a)(3), (10). No other circuit will correct the

error. Only this Court’s intervention can restore the

rule that the government must, in fact and in good

faith, exercise the reasoned discretion before invoking

the drastic sanction of default.

17

IV. This Case Is an Ideal Vehicle to Restore the

Schlesinger Standard

This petition presents a straightforward vehicle

to resolve the Federal Circuit’s departure from

Schlesinger because the trial court’s dual holdings

perfectly encapsulate the lower courts’ hostility to the

requirement that the government exercise its

administrative discretion prior to T4D.

The trial court held in part: “…even without the

Navy’s analysis…the termination for default would

not be an abuse of Navy’s discretion because ASG

failed to perform.” App. 61a. This alternative holding

squarely presents the first question for review. It

exposes the Federal Circuit’s current rule that

technical non-performance automatically justifies a

T4D,

explicitly

nullifying

the

Schlesinger

requirement that the contracting officer exercise

independent judgment.

Simultaneously, the trial court held in part that

the discretion was exercised by Navy based solely on

a facially defective, unauthenticated, and undated

memorandum. App. 60a-61a. This alternative holding

squarely presents the second question for review. It

demonstrates the twisting of evidentiary standards to

rubber-stamp an agency decision.

Because both of the trial court’s independent

grounds for upholding the T4D are infected by these

related legal errors, the Court is presented with a

clean opportunity to address both the substantive

necessity of discretion under Schlesinger and the

evidentiary burden required for the government to

prove it.

18

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Owen M. Praskievicz

SOLOMON WARD SEIDENWURM

& SMITH LLP

401 B. Street

San Diego, California 92101

619-238-4884

opraskievicz@swsslaw.com

Counsel for Petitioner

June 1, 2026