North Wind Construction Services, LLC
Docket: ASBCA 63641, ASBCA 63642, ASBCA 63750, ASBCA 63751, ASBCA 63759, ASBCA 63760, ASBCA 63761, ASBCA 63762
Decision date: 2024-02-13

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MELNICK GRANTING THE 
GOVERNMENT’S MOTION TO DISMISS ASBCA NOS. 63548 AND 63549  
AS MOOT 
 
On July 15, 2021, the Army Corps of Engineers (government) awarded  
North Wind Construction Services, LLC (NWCS), the contract identified above for the 
design and construction of a seepage barrier at the Portsmouth, Ohio levee (ASBCA  
Nos. 63548, 63549 compl. ¶¶ 5, 16).
1  NWCS proposed a secant wall for the barrier 
(compl. ¶ 15).  After NWCS began construction, the government claimed its work did 
not meet contract specifications because there was no bonded interface between piles 
and NWCS was required to employ joint cleaning procedures between bonded joints 
(compl. ¶ 20).  NWCS believes that the contract specifications only required barriers 
 
1 This complaint, one of several from these consolidated appeals, is cited throughout 
unless otherwise indicated. 
Appeals of - )  
 )  
North Wind Construction Services, LLC ) 
) 
) 
) 
ASBCA Nos. 63548, 63549, 63641 
                       63642, 63733, 63750 
                       63751, 63759, 63760 
                       63761, 63762 
 )  
Under Contract No. W91237-21-C-0003 )  
   
APPEARANCES FOR THE APPELLANT: Dana W. Lang, Esq. 
  Womble Bond Dickson (US) LLP 
  Charleston, SC 
 
Joshua A. Mullen, Esq. 
Joshua R. Funderburke, Esq. 
    Womble Bond Dickinson (US) LLP 
    Nashville, TN 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Matt D. Coakley, Esq. 
Joshua J. McCarroll, Esq. 
Jack D. Myers, Esq. 
    Engineer Trial Attorneys 
    U.S. Army Engineer District, Huntington 

2 
 
containing panel joints to have a bonded interface.  It maintains that a secant wall is 
not composed of panels.  (Compl. ¶¶ 21-26)  Additionally, NWCS expected that 
permeability and strength would be tested from cores taken out of the solid mass of the 
piles, while the government directed the use of cores taken from the intersections of 
the primary and secondary piles (compl. ¶¶ 34-38). 
 
 On October 20, 2022, NWCS submitted non-monetary claims to the contracting 
officer for contract interpretation (compl. ¶ 45).  On March 1, 2023, NWCS filed two 
notices of appeal from the contracting officer’s decision that were docketed as ASBCA 
Nos. 63548 and 63549 and consolidated.  The combined complaint seeks a declaration 
that NWCS’ technical proposal, including its selection of a secant wall, was part of the 
contract.  It also asks the Board to declare that use of a secant wall was not a deviation 
from the specifications and therefore did not require a variance, specifications 
applicable to a panel type wall were inapplicable to verifying the properties of a secant 
wall, and both permeability and strength could be measured through the solid portions 
of the piles.  (Compl. ¶¶ 56, 63) 
 
On July 21, 2023, after NWCS appealed its contract interpretation claims, the 
government terminated the contract for default (gov’t mot. at 3; app. resp. at 3).  
NWCS appealed the default, which is docketed as ASBCA No. 63733 and 
consolidated with these appeals.  Among the allegations NWCS advances in that 
appeal are that the government imposed the improper contract requirements that 
NWCS raised in the declaratory relief appeals (ASBCA No. 63733 compl. ¶¶ 49-77).  
Also consolidated here are NWCS’ appeals from claims for the costs arising from a 
secant wall demonstration section, a haul road, and for associated government delays 
(ASBCA Nos. 63641, 63642, 63750, 63751, 63759, 63760, 63761, 63762). 
 
Because the contract has now been terminated for default, the government asks 
us to dismiss as moot the two original appeals seeking declarations of the contract’s 
terms (ASBCA Nos. 63548 and 63549). 
 
It has long been recognized that this Board’s Contract Disputes Act (CDA) 
jurisdiction includes granting declaratory relief when appropriate.  See 41 U.S.C. 
§§ 7101-09; Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1269-70 (Fed. 
Cir. 1999).  Actions seeking only a declaration of a contract’s terms are potentially 
proper when additional contract performance remains to be accomplished, the costs of 
which might be affected by the ruling.  As NWCS concedes, “a nonmonetary appeal 
should survive if a favorable ruling . . . results in the avoidance of costs rather than a 
recovery of money” (app. resp. at 7 (citing J&J Maint., Inc., ASBCA No. 63013,  
23-1 BCA ¶ 38,353)).  Given that this contract has now been terminated, and there are 
no future performance costs that could be avoided, there is no purpose for these 
actions.  For this reason, we have historically dismissed as moot appeals seeking a 
declaration of the terms of fully performed or terminated contracts.  See Windamir 

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Dev., Inc., ASBCA No. 63461, 24-1 BCA ¶ 38,484 at 187,045; Shirley Constr. Corp., 
ASBCA No. 35868, 89-2 BCA ¶ 21,590 at 108,720; Poysky Bros., ASBCA No. 33935, 
87-3 BCA ¶ 20,180 at 102,146.  The law also disfavors affording declaratory relief 
such as what NWCS seeks in these two appeals when standard legal remedies are 
available to adequately protect its interests.  See Securiforce Int’l Am., LLC v. United 
States, 879 F.3d 1354, 1360-62 (Fed. Cir. 2018); Alliant, 178 F.3d at 1271-72. 
 
NWCS’ citation to Tactical Network Corp., ASBCA No. 62963, 21-1 BCA 
¶ 37,942, does not alter our conclusion.  There, after a pro se appellant appealed to us 
the government’s interpretation of its contract, the government terminated the contract 
for default.  The appellant then filed a “motion to join” in the existing appeal seeking 
the Board to convert the termination for default to a termination for convenience.  The 
Board treated the motion to join as a new notice of appeal challenging the default.  It 
consolidated the appeals and declined the government’s request to dismiss the 
declaratory action as moot, saying the issues it presented were relevant to the default.  
Instead of overturning our prior precedent dismissing appeals seeking declarations of 
the terms of terminated contracts, which it could not do, we view Tactical Network as 
limited to its circumstances, giving administrative leeway to a pro se appellant so that 
it could fully join the issues it sought to present.  See GLJ, Inc., ASBCA No. 62964, 
22-1 BCA ¶ 38,121 at 185,184.  NWCS is represented by counsel and does not require 
the kind of accommodation afforded to the pro se appellant in Tactical Network. 
 
NWCS suggests that retention of these two appeals on our docket is also 
required by M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (Fed. Cir. 
2010), to enable our review of the contract in its appeal of the termination for default, 
ASBCA No. 63733.  Maropakis says that “a contactor seeking an adjustment of 
contract terms must meet the jurisdictional requirements and procedural prerequisites 
of the CDA, whether asserting the claim against the government as an affirmative 
claim or as a defense to a government action.”  609 F.3d at 1331.  Here, the default 
termination is a government claim that it bears the burden of proving justified.  See 
Securiforce, 879 F.3d at 1363; Incircle Mgmt., Inc., ASBCA No. 62684, 23-1 BCA  
¶ 38,442 at 186,841.  Challenges NWCS may make to the government’s reading of the 
defaulted contract would not seek an adjustment to its terms.  Cf. ASFA Int’l Constr. 
Indus. and Trade, Inc., ASBCA No. 57880, 14-1 BCA ¶ 35,736 at 174,910-911 
(holding Maropakis inapplicable to an assertion that contract rights were waived).  
Nothing in Maropakis requires NWCS to pursue separate appeals seeking declarations 
of the contract’s provisions before NWCS may argue its meaning in an appeal of its 
default. 
  

4 
 
Nor would dismissal of these declaratory actions affect our review of NWCS’ 
other consolidated appeals asserting government delay and pursuing monetary 
compensation.2  They remain live and to the extent the contract interpretation issues 
raised in these two appeals are relevant to those matters NWCS remains free to present 
them for those purposes.  NWCS retains its right to legal remedies that might be 
necessary to make it whole.  Hence, its two original appeals seeking purely declaratory 
rulings about the parties’ contract rights do not seek meaningful relief any longer.  
They are at best duplicative and therefore ASBCA Nos. 63548 and 63549 are 
dismissed from the consolidated action as moot. 
 
 Dated:  February 13, 2024 
 
 
 
 
 
 
 
 
 
 
 
MARK A. MELNICK 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
OWEN C. WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
  
 
2 Distinct from any arguments NWCS might wish to make in its challenge to the 
default about the requirements of the contract, we have held that under 
Maropakis a contractor contesting a default based upon excusable delay by the 
government must submit a claim for a time extension.  ECC CENTCOM 
Constructors, LLC, ASBCA No. 60647, 18-1 BCA ¶ 37,133 at 180,713, aff’d, 
779 F. App’x 750 (Fed. Cir. 2019).  In ASBCA No. 63759, another of its 
consolidated appeals, NWCS appeals the alleged deemed denial of its claim for 
305 days of government delay, at least facially indicating it has met the 
prerequisite to defend against the default on that basis. 


5 
 
 I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA Nos. 63548, 63549, 63641, 
63642, 63733, 63750, 63751, 63759, 63760, 63761, 63762, Appeals of North Wind 
Construction Services, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  February 13, 2024 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals