Powertronic Systems Florida, Inc.
Docket: ASBCA 57530, ASBCA 58161
Decision date: 2021-10-19

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE CLARKE ON APPELLANT’S  
MOTION FOR RECONSIDERATION 
 
 Powertronic Systems Florida, Inc. (Powertronic) moves this Board to reconsider 
its May 10, 2021 decision sustaining the Navy’s Termination for Default of Contract 
No. N00253-18-C-0003.  We have jurisdiction pursuant to the Contract Disputes Act of 
1978 (CDA), 41 U.S.C. §§ 7101-7109.  None of the justifications supporting successful 
reconsideration apply and the Motion is denied.   
  
LEGAL STANDARD  
 
 Both parties correctly recite the law concerning the government’s obligation in 
considering a motion for reconsideration (app. mot. at 2-3; gov’t. opp’n at 1).  In 
Supreme Foodservice GmbH, ASBCA No. 57884 et al., 17-1 BCA ¶ 36,740 we wrote:  
 
[W]e look to whether the movant has presented newly 
discovered evidence, mistakes in findings of fact, or errors of 
law.  Kellogg Brown & Root Services, Inc., ASBCA 
Nos. 57530, 58161, 16-1 BCA ¶ 36,554 at 178,039.  A 
reconsideration motion is not an opportunity to reargue issues 
previously raised and decided, or to advance arguments that 
should have been presented in an earlier proceeding.  
Precision Standard, Inc., ASBCA No. 59116, 15-1 BCA 
Appeal of - )  
 )  
Powertronic Systems Florida, Inc. ) ASBCA No. 62174 
 )  
Under Contract No. N00253-18-C-0003 )  
   
APPEARANCES FOR THE APPELLANT: David L. Hayden, Esq.  
Jackson W. Moore, Jr., Esq. 
    Smith, Anderson, Blount, Dorsett, Mitchell &                                                            
Jernigan 
    Raleigh, NC 
 
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. 
    Navy Chief Trial Attorney 
 Trenton Bowen, Esq. 
    Trial Attorney 
     

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36,155 at 176,445; Avant Assessment, LLC, ASBCA 
No. 58867, 15-1 BCA ¶ 36,137 at 176,384.  A party moving 
for reconsideration “must show a compelling reason” why the 
Board should alter its decision. Precision Standard, 
15- 1 BCA ¶ 36,155 at 176,445. 
 
Id. at 179,092.  There is no disagreement as to the standard the Board will apply.   
 
POWERTRONIC’S INTRODUCTION 
 
Powertronic summarized its arguments at the beginning of its motion: 
 
The Board did not properly consider certain evidence 
regarding Powertronic’s request for a no-cost termination 
under the FAR, the Board made an error of law in its 
application of Lisbon Contractors, and the Board made errors 
of law and mistakes of fact in finding that the Contracting 
Officer did not abuse her discretion in terminating the 
Contract for default, and each error supports the Board 
reversing the Opinion, sustaining Powertronic’s appeal, and 
converting the Navy’s termination of the Contract for default 
into a termination for convenience. 
 
(App. mot. at 2)   
 
DECISION 
 
Federal Acquisition Regulation (FAR) 94.109-4 
 
 Firstly, Powertronic argues that the Board did not address whether the contracting 
officer “violated 48 C.F.R. § 49.109.4 [we will use FAR 49.109-4] by failing to execute a 
no-cost settlement rather than terminating the Contract for default” (app. mot. at 3).  
Powertronic misconstrues FAR 49.109-4 when it states, “[t]his is a mandatory provision 

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requiring the contracting officer to execute a no-cost settlement if the two factors in the 
clause are met”∗ (id. at 3-4).  FAR 49.109-4 reads: 
49.109-4 No-cost settlement. 
The TCO shall execute a no-cost settlement agreement (see 
49.603-6 or 49.603-7, as applicable) if- 
      (a) The contractor has not incurred costs for the 
terminated portion of the contract or 
      (b) The contractor is willing to waive the costs incurred 
and 
      (c) No amounts are due the Government under the 
contract 
However FAR 49.109-4 is subject to FAR 49.109-1 that reads:  
49.109-1 General. 
When a termination settlement has been negotiated and all 
required reviews have been obtained, the contractor and the 
TCO shall execute a settlement agreement on 
Standard Form 30 (Amendment of Solicitation/Modification 
of Contract) (see 49.603). The settlement shall cover 
      (a) Any setoffs that the Government has against the 
contractor that may be applied against the terminated contract 
and 
      (b) All settlement proposals of subcontractors, except 
proposals that are specifically excepted from the agreement 
and reserved for separate settlement. 
The Navy’s termination for default was not a “negotiated settlement” that is therefore 
outside of the scope of FAR 49.109-1 and 4.  Clearly a contracting officer is not required 
to negotiate a termination for default and FAR 49.109-1 and 4 cannot be reasonably 
interpreted to require a contracting officer to execute a no cost settlement agreement 
instead of a termination for default as Powertronic argues.  Powertronic’s interpretation is 
                                              
∗ A Westlaw search failed to bring up any ASBCA cases considering this argument.  

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unreasonable.  Additionally, we agree with the Navy’s arguments on this point (gov’t 
opp’n at 2).  
 
Lisbon Contractors 
 
 Powertronic starts this argument by attempting to distinguish the Board’s reliance 
on DoDs, Inc., ASBCA No. 57667, 13 BCA (CCH) ¶ 35203, and CKC Sys., Inc., 
ASBCA No. 61025, 19-1 BCA (CCH) ¶ 37385, for the tenet that “[f]ailure to make 
timely delivery establishes a prima facie case for termination for default.”  Powertronic 
argues that “([i]mportantly, in both Dods, Inc. and CKC Sys., Inc., the government 
terminated the relevant contracts after the delivery deadlines expired” and “[f]ailure to 
make appropriate progress—which the Navy cited as the key basis for the Contract 
termination—does not equate to failure to make timely delivery.” (App. mot. at 5) 
(emphasis added)  Powertronic ignores what we said in our opinion, that failure to make 
progress in First Article testing resulting in termination for default does in fact equate to 
failure to make timely delivery. Powertronic Systems Florida, Inc, ASBCA No. 62174, 
21-1 BCA ¶ 37,859 at 183,839.       
 
 Powertronic relies on Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 
(Fed. Cir. 1987), for the proposition, “[t]he mere fact that a contractor is behind schedule 
is insufficient to satisfy the government’s burden in proving a termination for default is 
justified” (app. mot. at 6).  This proposition is not enough to invalidate the Navy’s 
decision here.  In our decision, we addressed Powertronic’s list of excuses (GFE, Viton, 
Snap Action Switch, DO-C9 Rating, unavailability of shock testing, HUBZone Status).  
Powertronic was not “merely” behind schedule, it was chronically behind schedule and 
the Navy correctly concluded that it would not likely get back on schedule and that 
enough was enough.  Powertronic effectively argues that the Navy must put up with 
Powertronic’s chronic failures—it is obvious from our decision that we disagree.  This 
was dealt with in our decision and is not new fact or law.   
 
Abuse of Discretion 
 
 Powertronic argues, “Powertronic was faced with delays both before and after the 
Contract modification due to the Navy’s actions and inactions, supplier shortages, and 
subcontractor difficulties that the Contracting Officer failed to adequately consider when 
terminating the Contract for default” (app. mot. at 9).  We dealt with these “delays” and 
all of them were Powertronic’s responsibility.  This case can be summed up by saying if 
you contract with the government ultimately you have to perform, not list excuses for 
which you are legally responsible.   
 
 Powertronic characterizes our footnote 1 as a mistake in fact (app. mot. at 10).  We 
disagree.  First, the issue of a contractor’s right to unilaterally redesign design 
specifications is a question of law.  Second, contractors do not have the unilateral right to 

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redesign design drawings.  Anyone with any familiarity with design specifications knows 
that.   
 
CONCLUSION 
 
 Powertronic’s Motion for Reconsideration is denied.   
 
 Dated:  October 19, 2021 
 
 
 
 
 
 
 
 
 
 
 
CRAIG S. CLARKE 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
RICHARD SHACKLEFORD 
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 
 
 
 I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 62174, Appeal of 
Powertronic Systems Florida, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  October 19, 2021  
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals