Incircle Management, Inc.
Docket: ASBCA 62684
Decision date: 2023-10-03

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeal of - )  
 )  
Incircle Management, Inc. ) ASBCA No. 62684 
 )  
Under Contract No. W912BV-20-P-0059 )  
   
APPEARANCE FOR THE APPELLANT: Mr. HB Jung 
    President 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Stephanie J. Milburn, Esq. 
    Engineer Trial Attorney 
    U.S. Army Engineer District, Tulsa 
 
OPINION BY ADMINISTRATIVE JUDGE EYESTER  
PURSUANT TO BOARD RULE 11 
 
Incircle Management Inc. (Incircle) appeals the termination for cause by the 
U.S. Army Corps of Engineers (USACE or government) of its purchase order for the 
cleaning of park facilities.  According to the government, Incircle failed to provide 
numerous, required cleaning services at Canton Lake, Oklahoma.  The Board has 
jurisdiction over the termination pursuant to the Contract Disputes Act, 41 U.S.C. § 7101. 
 
The parties elected to waive a hearing and submit the appeal on the record 
pursuant to Board Rule 11.  Because the government has established the validity of the 
default termination, and Incircle has failed to demonstrate the default was excusable, the 
appeal is denied. 
 
FINDINGS OF FACT 
 
1.  The government issued request for quotations (RFQ) No. W912BV-20-Q-0046 
on February 19, 2020, for spring and summer cleaning services at Canton Lake, 
Oklahoma (R4, tab 4A at 1, 6-7).  According to the bid schedule, the services were 
Schedule I, Appendix A – Cleaning (id. at 7). 
 
2.  Appendix A was part of the RFQ’s statement of work (SOW), which also 
included a general section, exhibits and attachments (R4, tab 4H at 2).1  According to the 
 
1 The Board issued an order requiring the agency provide a complete copy of the 
solicitation, including all attachments. 

2 
SOW, the purchase order’s general purpose was the “cleaning of park facilities such as 
toilets, picnic/camping sites, and grounds keeping” (id. at 4).  More specifically, per the 
performance requirements, the contractor was to clean all waterborne toilets, vault toilets, 
showers, change houses, picnic shelter, camping sites, and perform grounds keeping and 
refuse collection (id. at 20-21).  Appendix A provided further detail and defined the term 
“clean” to require the contractor “sweep, wash, wipe, or brush facilities to ensure that 
dirt, dust, rocks, debris (tree limbs, rocks, driftwood, etc.), trash, garbage, ashes, fecal 
matter, urine, soap scum, biological formations and resultant stains, dead insects, insect 
nests . . . insect webs, bird droppings, and residue from cleaning agents are removed” (id. 
at 35). 
 
3.  In addition, per Appendix A, the contractor was required to empty refuse 
containers; distribute toilet tissue after cleaning the bathroom; remove litter and debris in 
a five-foot area around the facilities; remove vandalism and graffiti; replace burned out or 
broken lights; perform second cleanings on weekends and holidays; clean picnic shelter 
floor slabs, table seats and tops; remove all material from fireplaces; and clean all table 
shelters, cookers, and fire rings (R4, tab 4H at 31-33).  The contractor was to clear refuse 
and debris visible from a distance of 25 feet from public use areas (PUAs),
2 access roads, 
fishing areas, embankment roads and the Amphitheater in an area bounded by an 
imaginary line 20 feet outside the limits of mowing (id. at 20, 33).  The contractor was to 
pick up highly visible items beyond the area of mowing, including at the embankment 
road (id. at 33-34).  The purchase order included an inventory list of toilets, showers, 
picnic and camping shelters, change houses, grounds/trails, refuse cans, etc., to be 
cleaned (id. at 38). 
 
4.  In addition, the contractor was to provide the necessary personnel within the 
specified time limits, provide an on-site supervisor and safety plan, and transport and 
furnish equipment such as mops, cleaning compounds and disinfectants (R4, tab 4H at 5, 
7-8, 31).  Per Appendix A, the contractor was to begin work by 7 a.m. and complete work 
by 3 p.m.; however, toilets requiring second cleanings needed the first cleaning by 
11 a.m. and the second cleaning between 3 p.m. and 6 p.m. (id. at 31). 
 
5.  Services would be considered deficient if they failed to meet these performance 
requirements (R4, tab 4H at 4).  The contracting officer’s representative (COR) would 
determine whether services were deficient during the quality assurance inspections and 
“[t]he results of inspections” would not be “changed as a result of satisfactory re-
performance” (id. at 7). 
 
6.  In response to the RFQ, Incircle submitted a seven-page quotation, most of 
which consisted of the pricing on the bid schedule stating the services were Schedule I, 
 
2 A PUA included the “[p]arks, as well as overlooks, nature and hiking trails, access 
points, and other areas used by the public for recreation” (R4, tab 4H at 4). 

3 
Appendix A – Cleaning, (R4, tab 4B).  In its quotation, Incircle stated it would 
implement a work schedule and inspection plan for accuracy, consistency and timeliness 
of the requirements during weekdays, weekends, and holidays (id. at 2).  We find that 
Incircle submitted its quotation based on the cleaning requirements set forth in the SOW, 
including Appendix A. 
 
7.  On March 29, 2020, USACE issued fixed-priced purchase order No. W912BV-
20-P-0059 to Incircle in the amount of $58,295.60, with a one-year period of performance 
starting March 1, 2020, and four one-year option periods (R4, tab 4C at 1, 3).  The 
purchase order did not contain any statement of work (see id.).  The purchase order, 
however, did set forth the following contract line item numbers (CLINs):  CLIN 0001 for 
the initial cleaning of showers and toilets prior to the opening season; CLINs 0002-0004, 
CLINs 0006-0007, and CLINs 0009-0010 for the cleaning of the PUAs at Big Bend, 
Canadian, Blaine, Fairview, Longdale, Riverside, and Sandy Cove parks, respectively; and 
CLIN 0005, CLIN 0008, and CLINs 0011-0012 for the cleaning at the Dam Embankment, 
the Overlook, Thunder Hill Road, and Amphitheater, respectively (id. at 3-8).  We find 
that, at a minimum, the purchase order required Incircle perform initial cleaning of 
showers and toilets, and cleaning of the PUAs at the parks and other specified areas. 
 
8.  The purchase order incorporated by reference Federal Acquisition Regulation 
(FAR) clause 52.246-4, INSPECTION OF SERVICES – FIXED PRICE (AUG 1996) 
and explained that the services were to be inspected by the government at the destination 
(R4, tab 4C at 34).  The purchase order also incorporated by reference FAR 52.212-4, 
CONTRACT TERMS AND CONDITIONS – COMMERCIAL ITEMS (OCT 2018), 
which states in pertinent part:   
 
(m) Termination for cause.  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. 
 
(Id. at 54). 
 
9.  Incircle met with the COR on April 6, 2020, to discuss the cleaning 
requirements (see R4, tab 5A at 76-79; tab 5B at 1).  At that time, the public restrooms at 
the parks were closed and therefore cleanings were not taking place as regularly 
scheduled, although they still needed some cleaning, including an initial cleaning  (R4, 
tab 5B at 1, 7).  On that same day, the COR sent a “second” cleaning schedule for use 
when the restrooms reopened to the public and additional cleanings were needed (id. 
at 1).  The “second” cleaning schedule stated that second cleanings were to be performed 
between 3:00 p.m. and 6:00 p.m., and that “[a]ll restrooms, waterborne and vault toilets, 

4 
are to be cleaned using the same contract specifications as original cleanings.”  According 
to the schedule, there would be 47 second cleanings; 43 conducted on Saturday and 
Sunday from April 13-September 7, and four on specific holidays.  (Id. at 3) 
 
10.  On April 8, 2020, the COR emailed Incircle and stated that a trash can at Big 
Bend by the Romtec bathroom had no liner but contained trash, and that the schedule in the 
statement of work was in effect except for the bathrooms as they were still closed.  The 
COR explained that spot cleaning the bathrooms to remove bugs was still necessary.  (R4, 
tab 5B at 7)  Incircle responded:  “Got it.  I will make sure we provide the services as you 
expected” (id. at 8).  On April 13, 2020, the COR notified Incircle via email of the 
following issues identified during the inspection:  there was still trash in the can at Big 
Bend by the Romtec bathroom but no liner; there was trash in the Canadian Park areas A 
and B; the bathrooms at the Overlook needed an initial cleaning; there was trash along the 
roads at Blaine, Sandy Cove, and Riverside parks; there was trash by the group shelter 
at Longdale Park; the bathrooms at Fairview Park needed an initial cleaning; and the fire 
rings and campsite grills needed cleaning (id. at 11). 
 
11.  Although the purchase order did not include a SOW, on April 17, 2020, 
Incircle provided its accident prevention plan for cleaning services; the SOW attached to 
the RFQ had required such a plan (R4, tab 5B at 17).  The plan’s description of work 
included “cleaning toilets, showers, change houses, grounds, restrooms, picnic and 
camping sites, fishing areas, courtesy docks, dump stations, bulletin boards, embankment 
road, amphitheater, refuse collection and report[ing] stinging insects and nests” (id. 
at 18).  We find, based on Incircle’s meeting with the COR, subsequent emails on work 
to be performed, and its accident prevention plan, that Incircle understood the purchase 
order’s requirements for cleaning services was based on the SOW which was included in 
the RFQ but not in the purchase order. 
 
12.  On April 20, 2020, the COR asked Incircle to “clean all picnic and camp sites 
with how the Scope of Work has it.”  Further, the COR explained that all the fire rings 
and grills at the camp sites needed to be cleaned out from burned wood and ash build-up 
and the Amphitheater needed cleaning of debris.  In response, Incircle stated “Got it.  We 
will clean them this week.”  (R4, tab 5B at 25-26) 
 
13.  On April 26, 2020, Incircle sent the COR three quality control reports stating 
that all items/tasks had been inspected at the various parks for April 5-25, 2020 (R4, 
tab 5B at 28-31).  According to Incircle’s quality control reports, the fire rings, cookers, 
tables, insects, etc. had been inspected at the picnic/camping areas, screened shelters, and 
group shelters.  The quality control reports stated that the floors, sinks, toilets, showers 
and presence of insects, etc. had all been inspected at the restrooms.  Finally, the reports 
stated that all trash cans, park roads and grounds, etc. had been inspected.  (Id. at 29-31) 
 

5 
14.  The COR emailed Incircle on April 27, 2020 and thanked them for cleaning 
out the Amphitheater.  However, the COR also expressed concern regarding Incircle’s 
quality control reports.  In this regard, the COR explained that while Incircle’s reports 
showed the fire rings, cookers and tables had been inspected, the COR noticed during his 
inspection that the majority of fire rings, cookers and some tables in the group shelters 
were not cleaned per the specifications.  Further, the COR noted burned out light bulbs in 
certain shelters, uncleaned large grills at the shelters, trash along the highways, and trash 
around the Sandy Cove shelter, among other things.  The COR believed Incircle was not 
performing work in the required timeframe of 7 a.m. to 3 p.m. as he had only noticed and 
heard from others that Incircle was cleaning in the mornings.  (R4, tab 5B at 33)  In 
response, Incircle stated it would hire another individual so there would be two 
employees starting in May and that it would “cover fully starting May” (id. at 35). 
 
15.  On April 28, 2020, the COR requested and Incircle provided a park cleaning 
schedule (R4, tab 5B at 40, 43, 45).  The work schedule showed, for example, that toilets 
would be cleaned and trash would be emptied every day at the parks and Overlook between 
the hours of 7 a.m. and 3 p.m. (id. at 45).  We find that Incircle understood that cleaning 
was required every day at the parks, as set forth in the RFQ’s SOW and specifications. 
 
16.  The parks at Canton Lake reopened on May 20, 2020 (R4, tab 5C at 33).  
Similar issues with failure to remove trash and clean shelters and bathrooms arose both 
before and after the parks’ reopening.  While Incircle’s quality control reports showed all 
items/areas inspected, the COR’s inspections showed deficiencies.  For example, on May 
4, 2020, the COR’s inspection, which was provided to Incircle, stated the grills at Sandy 
Cove contained partially burned material, there was trash around the shelter, the 
Longdale shelter had not been cleaned, and the men’s bathroom at Sandy Cove was not 
cleaned that day (id. at 4-5).  The COR called Incircle’s supervisor about the Longdale 
shelter, who stated he believed another individual “would take care of it on Sunday 
because [the supervisor] noticed people using it on Saturday” (id. at 5).  The COR’s 
inspection on that day and the next noted that there were many spider webs and insects 
along the walls, light fixtures and windows at the bathrooms (id. at 5, 11). 
 
17.  On May 6, 2020, the COR notified Incircle that two trash cans at the cemetery 
had not been collected for some time as the trash bags were melting from the heat (R4, 
tab 5C at 16).  In response, Incircle stated that the purchase order did not require cleaning 
those two trash cans.  The COR responded by stating that Table A-3, Facilities Inventory 
for Cleaning Services Summer Period set forth an inventory of seven trash cans for the 
Canadian Park, including one at the cemetery.  The COR further stated that there were 
currently two trash cans at the cemetery, but he was “taking 1 can out . . . to make the 
inventory count on the contract current.”  (Id. at 21)  Incircle also asked whether the three 
trash cans at the Amphitheater were part of the Canadian Park inventory, and the COR 
explained they were not initially.  However, the COR informed Incircle he was removing 
the requirement to empty three other trash cans so the Amphitheater cans would be part 

6 
of the total seven trash cans to be emptied.  The COR also stated that he would complete 
a new count to make sure the inventory list was current and if there were changes, they 
could work it out.  (Id. at 23)  The COR also removed two extra trash cans from Blaine 
Park and two from the fish jetties so that the total trash cans to be emptied matched the 
inventory list on the statement of work (id. at 26, 29).  We find the COR required Incircle 
empty only the number of trash cans set forth in the RFQ’s inventory and that even if the 
COR had previously required Incircle to empty additional trash cans, the record shows 
Incircle was deficient in performing most if not all of those services. 
 
18.  On May 21, 2020, Incircle submitted an updated work schedule and notified 
the COR it had two onsite representatives, and that one representative would be at the 
various parks each day of the week (R4, tab 5C at 41).  The work schedule showed that 
Incircle would clean the toilets and empty the trash every day at each of the parks (id. 
at 42).  Incircle continued to submit quality control reports for May 2020 showing all 
areas had been inspected (see id. at 47, 54, 56).  On May 26, 2020, the COR notified 
Incircle that Park Rangers had emailed pictures of bathrooms during Memorial Day 
weekend, which showed unreplenished toilet paper rolls and trash in the cans (id. at 48, 
50-52).  Further, the COR informed Incircle that none of the Big Bend camp sites had 
been cleaned, including the fire rings and grills (id. at 48). 
 
19.  On June 1, 2020, the COR emailed Incircle and stated that the grounds 
keeping at Thunder Road was deficient, small trash was piling up at the camp sites and 
shelters, there was purple goo on the tables at Sandy Cove, and there were customer 
complaints about the bathrooms due to spider webs and dead insects.  The COR 
specifically told Incircle he did not want “any dead insects, spider webs, dirt, fecal matter 
on the toilets . . . .”  (R4, tab 5D at 4)  The COR attached pictures showing all of these 
issues (id. at 5-13, 16-19).  Incircle picked up the trash along Thunder Road (id. at 20).  
The COR performed a campsite clean-up and bathroom inspection on June 2 at Big Bend 
Park and found no worker on site and that no park cleaning had occurred for an uncertain 
amount of time (R4, tab 6B at 6). 
 
20.  On June 11, 2020, the COR informed Incircle that there were stains in the 
toilets at Big Bend, Canadian, and Sandy Cove parks, and the Overlook, and there were 
urine and other stains around the toilets at Canadian Park (R4, tab 5D at 44, 46).  The 
COR attached numerous pictures of uncleaned and stained toilets (with what appears to 
be urine and fecal matter) and floors stained with urine and other material, which were 
taken during the quality control inspection (id. at 48-63).  The COR also attached pictures 
showing spider webs at the various windows and a burned out light (id. at 64-67).  We 
find that despite the fact Incircle informed the government it would clean the parks every 
day, especially the bathrooms, it failed to do so. 
 
21.  The COR reinspected areas noted as issues for grounds keeping and noticed 
several missed areas, which he documented with pictures (e.g., discarded fishing pole) 

7 
(R4, tab 5D at 68-70, 72-74).  There was also graffiti on the tables and seat at the 
Longdale Park (id. at 71).  A June 17, 2020 deficiency report noted trash at multiple 
campsites and broken glass at one of the sites (id. at 81).  More deficiencies were noted in 
the June 22, 2020 quality assurance reports, which included pictures of trash (e.g., beer 
and soda cans, water bottles) (id. at 87-125). 
 
22.  On June 25, 2020, the government issued unilateral, no-cost Modification 
No. P00001, which incorporated the statement of work from Section C of the solicitation, 
as well as SWT Form 982 (Quality Assurance Report), SWT Form 990 (Quality Control 
Inspection Log), the Job Hazard Analysis, Work Schedule for Park Cleaning, and the 
Canton Lake map (R4, tab 4D at 1; see also R4, tab 4H).  The next day, the government 
issued a cure notice stating that Incircle failed to provide:  experienced and skilled 
personnel that worked the required hours; an on-site supervisor that could be reached 
between the required hours; all required cleaning services (bathroom cleaning, removal of 
trash from campsites, campsite cleaning, weekend cleaning, and re-work of deficient 
areas); and adequate quality control inspections (R4, tab 5D at 177-78).  The notice 
warned the government could terminate the purchase order for cause and provided 
Incircle 10 days to improve its performance (id. at 178). 
 
23.  On June 29, 2020, the COR issued another quality assurance report stating the 
Canadian Park bathrooms were not cleaned, there was fecal matter on the toilets, the 
floors were stained, and trash cans were unemptied.  Further, there were water rings on 
the toilets, dead insects and webs on the walls, and stains on the shower floors.  (R4, 
tab 5D at 182-83)  The COR noted similar issues with the bathrooms at Big Bend Park, 
Sandy Cove Park, and the Overlook.  There were also issues with uncleaned fire rings 
and grills at Big Bend Park, as well as trash and refuse at the Longdale, Blaine, Big Bend, 
and Canadian parks.  (Id. at 183)  The COR attached pictures showing overfilled trash 
cans at Longdale Park, trash in the fire rings, uncleaned grills, numerous dead insects in 
the bathrooms, stained floors, and uncleaned and stained toilets (id. at 185-221, 222-26).  
The COR wrote to Incircle on one of the pictures that there was fecal matter, other 
biological formations, and water rings on the toilets because they were not getting 
cleaned daily and therefore, they were below standards (id. at 221). 
 
24.  In response to the cure notice, on July 2, 2020, Incircle stated it provided the 
personnel necessary to perform, the employees performing the cleaning were also the on-
site supervisors, and it provided quality control reports and work schedules.  Incircle 
further stated that while “[t]here were deficiencies of service, [] we didn’t fail to clean.  
We provided re-perform[ance] and completed the service.”  (R4, tab 5E at 6)  Further, 
Incircle explained that it performed work outside the required hours because the 
government required it to perform “non-contract” work such as:  cleaning nine additional 
refuse containers every day for which the government did not pay Incircle; grounds 
keeping of additional non-PUAs; and removal of refuse and debris outside the 
requirements of the purchase order (id. at 7-8). 

8 
25.  More issues arose in July 2020.  Incircle was keeping its supplies in chase 
ways at the Big Bend and Canadian parks after it was told it could not.  Some supplies 
blocked the maintenance hallways, and other supplies, such as lights, were found sitting 
on the plumbing in the bathrooms.  (R4, tab 5E at 17-19)  Without going into too much 
detail, the bathrooms, and especially the toilets, were still not getting cleaned at the Big 
Bend, Canadian and Sandy Cove parks (id. at 23-24).  In addition, Incircle failed to 
provide timely work schedules or changed schedules last minute (id. at 28). 
 
26.  According to other July COR reports, Incircle employees stated they were not 
provided with proper equipment, and one stated the mop he was using to clean the floors 
was falling apart (R4, tab 6C at 5).  In late July, some of the bathroom issues seemed to 
have been remedied, but others remained; and there was highly visible trash at the 
Amphitheater, Longdale Park, and Thunder Road (R4, tab 5E at 31).  On July 25, 2020, 
Incircle provided a new work schedule, again showing the bathrooms would be cleaned 
every day at the parks (id. at 39-40). 
 
27.  On July 27, 2020, the COR notified Incircle that the same trash he 
documented at the parks from the prior week was still highly visible; bathrooms were not 
cleaned per the specifications; an Incircle employee stated the cleaning agent Incircle 
provided was ineffective in removing water stains; the shower floors at Canadian Park 
were not cleaned or mopped; three lights were burned out at the Canadian Park 
bathrooms; and Incircle workers were not using step ladders to replace lights but caught 
standing on a plastic bucket or metal trash can, which presented a safety hazard (R4, 
tab 5E at 42-43).  We find that Incircle failed to clean the parks in accordance with the 
terms of the purchase order, as modified. 
 
28.  On August 6, 2020, the COR sent another quality report to Incircle again 
outlining all the deficiencies in the work, including dead insects, worsening water rings, 
unsterilized or uncleaned toilets, and trash at the various locations, including the shelters 
(R4, tab 5F at 4-6).  On August 7, 2020, Incircle wrote the contracting officer disputing 
the COR’s interpretation of highly visible refuse.  According to Incircle, the COR wanted 
all trash removed, including little plastic items or cigarette butts that Incircle believed 
was not highly visible.  Incircle requested clarification on the matter.  (Id. at 7)  In 
response, on August 13, 2020, the contracting officer explained that per the purchase 
order, the described items fell within the grounds keeping areas of the parks and should 
be picked up while the trash pick-up of highly visible items only applied to “the area 
bounded by an imaginary line 20 feet outside the limits of mowing” (id. at 13). 
 
29.  On August 14, 2020, the contracting officer prepared a memorandum 
outlining the bases for termination for cause of Incircle’s purchase order (R4, tab 3).  The 
memorandum explained that the COR had issued multiple quality assurance reports 
(including seven reports after issuance of the cure notice) documenting deficient work 

9 
and Incircle failed to acknowledge the majority of these reports or provide required 
reperformance (id. at 1). 
 
30.  That same day, the contracting officer terminated the purchase order for cause 
because Incircle failed to provide contractually required services (R4, tab 2).  The 
modification terminating the purchase order reduced the total funded value from 
$58,295.60 to $37,386.59 (R4, tab 4E at 1).  On September 11, 2020, Incircle appealed 
the termination decision to the contracting officer, who later informed Incircle he would 
not change his decision (R4, tab 5G at 1, 3).  On September 18, 2020, Incircle filed its 
notice of appeal with the Board disputing the termination for cause. 
 
DECISION 
 
Pursuant to the relevant default clause, in this appeal FAR 52.212-4, CONTRACT 
TERMS AND CONDITIONS – COMMERCIAL ITEMS (OCT 2018), the government 
may terminate a contract 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.”  (Finding 8)  
We have explained before that the principles underlying terminations for default apply 
equally to terminations for cause issued pursuant to the commercial items FAR 52.212-4 
clause.  Axxon Int’l, LLC, ASBCA No. 61549, 20-1 BCA ¶ 37,564 at 182,393.  A 
termination for default is a government claim.  Securiforce Int’l Am., LLC v. United States, 
879 F.3d 1354, 1363 (Fed. Cir. 2018).  Therefore, the government bears the burden of 
proving that its termination was justified.  Lisbon Contractors, Inc. v. United States, 828 
F.2d 759, 765 (Fed. Cir. 1987); Axxon, 20-1 BCA ¶ 37,564 at 182,393. 
 
The government terminated the purchase order because Incircle failed to provide 
contractually required services (R4, tab 2).  Specifically, the contracting officer 
concluded the COR had issued multiple quality assurance reports documenting deficient 
work and Incircle failed to acknowledge the majority of these reports or provide required 
reperformance (R4, tab 3). 
 
As noted, initially, the purchase order failed to include an SOW setting forth the 
specifications for cleaning at the parks.  We found that the purchase order, however, 
required Incircle nonetheless still perform an initial cleaning of showers and toilets, and 
cleaning of the PUAs at the parks and other specified areas (finding 7).  According to the 
Merriam-Webster online dictionary, “clean” means “free from dirt or pollution.”  
Merriam-Webster.com Dictionary, M
ERRIAM-WEBSTER, https://www.merriam-
webster.com/dictionary/clean (last visited Aug. 10, 2023).  Despite the order’s language 
and the common definition of the term, we found that Incircle failed to clean several 
areas at the park (finding 20).  FAR 52.212-4(m), permits the contracting officer to 
terminate the purchase for “any default” and we conclude that here, Incircle was in 

10 
default.  See United Healthcare Partners, Inc., ASBCA No. 58123, 16-1 BCA ¶ 36,374 
at 177,314. 
 
Further, we found that based on Incircle’s quotation, initial meeting with the COR, 
emails on work to be performed, and submission of its accident prevention plan, that 
Incircle understood the purchase order’s requirements for cleaning services was based on 
the SOW included in the RFQ but not originally in the purchase order (findings 6, 11).  In 
addition, Incircle provided work schedules stating that it would clean toilets and empty 
trash every day at the parks and Overlook during the required timeframes and was failing 
to do so (findings 15, 20).  Despite this understanding, course of performance, and 
Incircle’s commitment, Incircle was not performing cleaning services, including cleaning 
of the bathrooms. 
 
Incircle itself noted in response to the cure notice that “[t]here were deficiencies 
of service,” but claimed it provided re-performance and completed the services (R4, 
tab 5E at 6).  However, contrary to Incircle’s assertions on reperformance, the record 
shows that bathrooms, trash cans, park shelters, etc. were uncleaned over the course of 
several months (findings 15, 20). 
 
Incircle’s performance issues continued after the government amended the 
purchase order to include the SOW.  In this regard, the record is replete with 
documentation, including pictures, of uncleaned bathrooms, toilets, trash cans, park 
shelters, fire rings, etc.  We found that Incircle failed to meet the terms of the purchase 
order (finding 27).  Accordingly, we conclude that Incircle failed to meet the definition of 
clean set forth in Appendix A, which required the contractor “sweep, wash, wipe, or 
brush facilities to ensure that dirt, dust, rocks, debris (tree limbs, rocks, driftwood, etc.), 
trash, garbage, ashes, fecal matter, urine, soap scum, biological formations and resultant 
stains, dead insects, insect nests . . . insect webs, bird droppings, and residue from 
cleaning agents are removed” (R4, tab 4D at 31).  In addition, Incircle failed to meet 
other requirements set forth in Appendix A, including emptying refuse containers; 
removing litter and debris; removing graffiti; replacing burned out lights; performing 
second cleanings on weekends and holidays; and cleaning shelters, cookers, and fire rings 
(id. at 28-29).  Incircle also failed to provide sufficient mops and cleaning compounds 
and meet the required hours of performance (see id. at 7).  Further, while Incircle claims 
it re-performed the work, the SOW explained that “[t]he results of inspections,” such as 
deficiencies found, would not be “changed as a result of satisfactory re-performance” 
(R4, tab 4H at 7).  Incircle’s work was deficient. 
 
Incircle does not specifically dispute these facts or challenge USACE’s 
assertion that it did not meet several of the purchase order’s requirements such as the 
specifications for clean bathrooms.  We conclude the government has met its burden that 
the termination was justified. 
 

11 
The burden of proof now shifts to Incircle to prove that its default was excusable.  
In this regard, FAR 52.212-4(f) states that 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. . . .” (Emphasis added). 
 
Incircle contends that it was forced to clean nine additional trash cans and to 
grounds keep additional non-PUAs, and that it raised these issues to the COR who 
later admitted these services were not required by the purchase order (app. br. at 1-4).  
According to Incircle, this alleged breach and misconduct by the government tainted 
the termination (id. at 2).  We have found, however, the COR required Incircle empty 
only the number of trash cans set forth in the SOW’s inventory and that even if the COR 
had previously required Incircle to empty additional trash cans, the record shows Incircle 
mostly failed to perform those services (finding 17).  Further, Incircle has not shown how 
emptying additional trash cans prevented it from cleaning other areas of the park over the 
course of several months. 
 
With respect to the grounds keeping of non-PUAs, Incircle circled two areas on a 
map showing the project boundaries (app. br. at 3).  Incircle states it was told to clean the 
E645 and N2466 roads it circled, which it states were outside the project boundaries (id. 
at 2-3).  There is nothing in the record supporting Incircle’s bare assertions.  Rather, the 
record shows that Incircle failed to clean, by any definition of the term, the parks (and 
especially the bathrooms).  Further, Incircle has not shown how this alleged extra work 
prevented it from cleaning other areas of the park over the course of several months. 
 
Finally, Incircle argues that the cure notice was defective because it was issued just 
prior to the modification incorporating the SOW (app. br. at 4).  Incircle argues the 
defect lies in the notice’s statement that Incircle failed to comply with the purchase 
order’s specifications, which had only just been added (id.).  Incircle also argues the 
termination, which relies on the cure notice, is also defective (id. at 5). 
 
This argument is flawed.  As noted, the purchase order included the commercial 
item clause FAR 52.212-4, on which the termination is based.  FAR 12.403, 
TERMINATION, addresses the government’s requirements when terminating a 
commercial item contract for cause.  Specifically, FAR 12.403(a) explains that the 
termination paragraphs in FAR 52.212-4 “contain concepts which differ from those 
contained in the termination clauses prescribed in part 49” and therefore “the requirements 
of part 49 do not apply when terminating” commercial item contracts; rather, contracting 
officers are to follow the procedures in FAR 12.403 but may use part 49 as guidance to the 
extent there is no conflict.  FAR 12.403 does not require the contracting officer issue a cure 
notice before terminating the contract or purchase order for cause.  See FAR 12.403(c); 
United Healthcare Partners, Inc., 16-1 BCA ¶ 36,374 at 177,313 (cure notice not required 
in commercial item contract containing FAR 52.212-4).  Accordingly, Incircle has failed to 
show that the default was excusable. 

12 
 
And regardless, here, we have found that the purchase order required Incircle 
provide cleaning services, which it failed to do in many instances, and Incircle 
understood the purchase order’s requirement for cleaning was based on the SOW (prior 
to its inclusion) and failed to provide the required services.  Therefore, the cure notice 
was not defective.  Further, the termination was based on instances of deficient 
performance after the government modified the purchase order to include the SOW and 
therefore, as noted above, the termination was reasonable and supported by the record. 
 
CONCLUSION 
 
Based on the foregoing, the appeal is denied. 
 
Dated:  October 3, 2023 
 
 
 
LAURA J. EYESTER 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
I concur 
 
 
 
 I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 OWEN C. WILSON 
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. 62684, Appeal of Incircle 
Management, Inc., rendered in conformance with the Board’s Charter. 
 
Dated:  October 3, 2023 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals