Donald L. Mooney Enterprises, LLC dba Nurses Etc. Staffing
Docket: ASBCA 60574
Decision date: 2017-12-07

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of--
Donald L. Mooney Enterprises, LLC 
dba Nurses Etc. Staffing 
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ASBCA No. 60574 
Under Contract No. FA8053-12-D-0025 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
William F. Savarino, Esq. 
Andrew K. Wible, Esq. 
Cohen Mohr LLP 
Washington, DC 
Jeffrey P. Hildebrant, Esq. 
Air Force Deputy Chief Trial Attorney 
Christopher S. Cole, Esq. 
Kyle E. Gilbertson, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE PAUL 
This is a timely appeal of a contracting officer's (CO's) final decision terminating 
appellant Donald L. Mooney Enterprises, LLC dba Nurses Etc. Staffings' (Mooney), 
services contract for default. A hearing was held at the Board's offices. The Contract 
Disputes Act (CDA), 41 U.S.C. §§ 7101-7109, is applicable. We deny the appeal. 
FINDINGS OF FACT 
1. On 8 April 2011, the Air Force Medical Service (AFMS) awarded basic Clinical 
Acquisition for Support Services Contract No. FA8053-12-D-0025 (CLASS contract) to 
Mooney in order to obtain qualified health care workers (HCWs) to perform various medical 
services at military treatment facilities (MTFs) within the 50 United States and Guam. The 
CLASS contract was designed to supplement the medical staff at Air Force MTFs with a wide 
range of qualified clinical HCWs on a nationwide basis. The CLASS contract consisted of a 
four-year ordering period with no option periods. (R4, tab 1 at 1, 7) 
2. The CLASS contract's "Performance Statement of Work" (PSW) also provided, 
in pertinent part: 
The CLASS contract uses task order competition and a two-step 
task order process. The task order proposal competition process 
includes the issuance of a task order proposal request (TOPR), 
receipt of proposals, proposal evaluation, legal review, and 

contract clearance. The task order competition process is 
outlined in Section H.3 for "Subsequent Task Orders". The task 
order process includes a candidate approval component and a 
task order award component. The candidate approval component 
of the task order process starts with a Letter of Intent to Award 
(LOIA) and ends with the Government's approval of candidates. 
The task order award component starts with task order award and 
ends when contractor performance is completed for each 
individual task order. Ordering Contracting Officers shall not 
deviate from this two-step task order process for subsequent task 
orders without prior written approval from the Contracting 
Officer (CO) at the Program Management Office (PMO). 
During the two-step task order process, the CLASS contract 
requires the Contractor to accomplish the following activities 
from issuance of a Letter of Intent to A ward (LO IA) through 
contractor performance: recruit, place and manage HCWs as 
well as resolve HCW performance issues as follows: 
Recruit: In response to an LOIA, or during contractor 
performance when replacing and substituting HCWs, the 
Contractor shall recruit qualified HCWs from outside of the 
Government to fulfill the duties, qualifications, and 
requirements in the performance work statement, appropriate 
position description, and addendum (when provided). The 
Contractor shall find, conduct competency-based screening 
against preliminary Government minimum requirements, 
obtain initial background checks and submit qualifying 
documentation on HCWs as part of the recruiting requirement. 
(R4, tab 1 at 7-8) (Citations and emphasis omitted) 
3. In addition, the PSW required, inter alia: 
After task order award, the Contractor shall submit qualifying 
documentation for the Government to validate against 
subsequent Government minimum requirements outlined in the 
Section C and Section J, Attachment 4 of the contract. 
Subsequent Government minimum requirements include 
health, immunization, drug screening, complete background 
checks, credentials packages for credentialed HCWs, and 
additional requirements (if any) established in the task order. 
Qualifying documentation shall be submitted to the 
Government before placement of the HCW in accordance with 
2 

the terms and conditions of the contract. For example, 
credentials packages for credentialed HCWs must be submitted 
NL T 30 calendar days before the required start date. 
Contractor Performance. The Contractor agrees to initiate 
performance on all awarded task orders using only HCW(s) 
whose professional qualifications have been determined 
acceptable by the Government as part of the candidate approval 
component in the task order process. 
When the Contractor experiences any delays in accomplishing 
the specific tasks identified in the contract and task order, the 
Contractor shall notify the ordering CO immediately. The 
ordering CO will evaluate the situation to determine if an 
extension of the required date is appropriate due to Government 
delay. If an extension is not approved, the Government may 
terminate the task order for default or seek other remedies as 
appropriate. The ordering CO may re-solicit the task order or 
send an LOIA to the Contractor whose proposal provides the 
next best advantage to the Government as outlined in Section 
H.3 if the LOIA date is within 90 calendar days of the original 
proposal submission date. Non-performing Contractors may 
receive a negative past performance report which may impact 
the Contractor's ability to compete for future task orders on this 
contract and other Government contracts. 
Upon award, the Government will transmit the task order to the 
Contractor on a DD Form 1155. The contracted HCW shall 
physically begin performance no later than 30 calendar days 
from the initial date on the period of performance in the task 
order for non-credentialed HCWs, unless a later date is specified 
in the task order, and no later than 60 calendar days from the 
initial date on the period of performance in the task order for 
credentialed HCWs, unless a later date is specified in the task 
order. Performance earlier than the 30 or 60 calendar days may 
occur if an earlier date is mutually agreed upon between the 
ordering CO and the Contractor. The ordering CO will 
accomplish a bilateral modification on the task order to adjust 
the date performance begins for HCWs. 
(R4, tab I at 51) (Citations omitted) 
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I l 
4. The CLASS contract incorporated by reference Federal Acquisition Regulation 
(FAR) clause 52.249-8, DEFAULT(FIXED-PRICE SUPPLY AND SERVICE) (APR 1984), 
which stated: 
(a)(l) 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 subparagraph (a)(2) of this clause). 
(iii) Perform any of the other provisions of this contract 
(but see subparagraph (a)(2) of this clause). 
(2) The Government's right to terminate this contract 
under subdivisions (1 )(ii) and (1 )(iii) above, may be exercised 
if the Contractor does not cure such failure within 10 days (or 
more if authorized in writing by the Contracting Officer) after 
receipt of the notice from the Contracting Officer specifying 
the failure. 
(g) If, after termination, it is determined that the 
Contractor was not in default, or that the default was excusable, 
the rights and obligations of the parties shall be the same as ifthe 
termination had been issued for the convenience of the 
Government. 
(h) The rights and remedies of the Government in this 
clause are in addition to any other rights and remedies provided 
by law or under this contract. 
(R4, tab 1 at 70) 
5. On 14 July 2015, the CO of the 375th Contracting Squadron, Mr. Darryl Weaver, 
issued amended TOPR CL 15-09-0001 to provide a certified nurse midwife at Scott Air 
Force Base, Illinois. The TOPR provided: 
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1. An official revised proposal is hereby requested for one 
( 1) Certified Nurse Midwife to support the Medical Treatment 
Facility at Scott AFB, IL and/or St. Elizabeth's Hospital as 
outlined in your Air Force Medical Service Commodity 
Council Clinical Acquisition for Support Services (CLASS) 
contract. Please reference the requirement title and your 
contract number in any proposal response. 
2. The Government estimates the period of performance for this 
requirement to be 1August2015 through 31July2016. Should 
your organization be selected to fill this task order, you will be 
issued a Letter of Intent to Award [LOIA] contingent on providing 
qualifying documentation. Should your company subsequently 
provide qualifying documentation and receive candidate approval, 
your company then will be provided a unique task order number 
specific to our contracting office and medical treatment facility 
that will be indicated on the specific task order at that time. You 
also will be required to submit electronic invoices through Wide 
Area Workflow (WA WF) to the DF AS-Limestone payment office 
IAW DFARS 252.232-7003. 
3. The Certified Nurse Midwife should, at a minimum, meet 
the requirements stated in Attachments 1 and 5 of this Task 
Order Proposal Request. 
4. The basic task order summary information in terms of the 
work schedule/duty hours, for the Certified Nurse Midwife is 
provided in Attachment 2 to this Task Order Proposal Request. 
5. The evaluation criteria are past performance and price. Past 
performance will be evaluated on a basis significantly more 
important than price. An assessment will be made to determine 
the best-value to the Government. IA W Sec H-3, paragraph 
(c)(3)(a) of your contract, past performance will be evaluated 
based on the monthly dashboard created by the AMFCC PMO 
and known performance at Scott AFB. The pricing worksheet in 
Attachment 3 shall be completed to satisfy the price section of 
your proposal. The pricing worksheet must clearly show the 
burdened hourly rates for duty hours; burdened hourly rates for 
overage and on-call hours: and, total cost by position description. 
6. This is a new requirement and there are no current full 
time incumbents in place. 
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(R4. tab 10)1 
7. The Government reserves the right to award without 
discussion and to issue a LOIA for all. some. or none of these 
requirements. If the Government decides to issue a LOIA with 
discussions. you will be notified as soon as possible. 
8. You have 2 calendar days to respond \Vith a revised proposal 
that confcmns to the requirements in section II.3 of your 
contract. Revised proposals will be good for 90 days. 
Revised proposals are due no later than 3:00 P.M. (CST) on 
16 July 2015. If you have any questions. please contact 
AlC Steven Ambrosini .... 
6. The CO received responses to the revised TOPR from all 22 CLASS contracting 
entities (tr. 27-31 ). Citing price and past performance, the CO selected Mooney as providing 
the most advantageous offer to the Air Force (tr. 28-30). On 17 July 2015, the CO forwarded 
to Mooney an LOIA and a task order (TO) with respect to the clinical nurse midwife position. 
Mr. Weaver, wrote, in pertinent part: 
We are pleased to inform you that you have been selected to 
provide services for one (I) Clinical Nurse Midwife at Scott Air 
Force Base (Scott AFB). This notice of intent to award a task 
order against your Indefinite Delivery, Indefinite Quantity 
(IDIQ) contract, is however, subject to your successful 
completion of the requirements contained in section H.3 of 
your contract regarding candidate approval. Specifically; 
within 20 calendar days of this notice, which is no later than 
(6 August 2015, 3:00pm CST) you are required to provide the 
following: 
1. Qualifying documentation on candidates against 
preliminary Government minimum requirements at 
Scott AFB. 
2. Valid contact telephone numbers on each candidate 
for Government review and approval. 
1 The government revised the TOPR to establish an experience requirement of "at least 24 
months ... working/performing as [a] Certified Nurse Midwife within the last 48 
months" (R4, tab 15). The CO's testimony notwithstanding, the Board was unable to 
locate such an experience requirement in the PSW (tr. 57-58; R4, tab 1 at 266-67). 
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Should the Government approve your candidate, or you fail to 
receive information on candidate approval within 7 business 
days, you shall proceed with the hiring process for the 
candidate. 
(R4, tab 16) Later, that same day, Mooney forwarded to the CO, the required documentation 
for Ms. Linda Beltsen (supp. R4, tab 40). On 20 July 2015, Ms. Beltsen's qualifications 
were accepted by the Air Force (supp. R4, tab 43 at 1). 
7. On 23 July 2015, the Air Force awarded TO 6C08 to Mooney. The TO stated a 
fixed-price amount and required Mooney to provide one full-time Certified Nurse Midwife 
for a performance period extending from 23 July 2015 to 22 July 2016. (R4, tab 17 at 2) 
8. The CLASS contract defined the nurse midwife as a credentialed position (R4, 
tab 1 at 98; see finding 3). Accordingly, Mooney was required to submit a credentialing 
package no later than 30 days before the required start date (R4, tab 1 at 51). Pursuant to 
the TO, the credentialing package had to be submitted by 22 August 2015 (R4, tab 17 at 2). 
9. Also, because the nurse midwife position was credentialed, an approved midwife 
had to "physically start work no later than 60 calendar days from the initial date on the 
period of performance in the task order" (R4, tab 1 at 52). Thus, pursuant to 6C08, the 
midwife was required to report for duty on or before 21 September 2015 (R4, tab 17 at 2). 
However, Ms. Beltsen withdrew from consideration in the late July 2015 timeframe 
(tr. 135-36). 
10. On 4 August 2015 Mooney proposed Ms. Laura Redden as a substitute for 
Ms. Beltsen (supp. R4, tab 39). Under the original TOPR which was issued on 11 June 
2015, the Air Force had provided Mooney with an LOIA on 30 June 2015, and Mooney 
had offered the midwife position to Ms. Redden. But she had declined the position. 
(R4, tabs 3, 8; see finding 5; tr. 158, 189) Thus, through its proposal of 4 August 2015, 
Mooney was offering the position to Ms. Redden for a second time. 
11. On 12 August 2015, the Air Force informed Mooney that Ms. Redden was an 
"acceptable candidate," and Mooney's personnel began to undertake the credentialing 
process (supp. R4, tab 41 at 1-2). Around this time, Mooney's personnel began to have 
"difficulties" with Ms. Redden (tr. 136). She did not return credentialing documents in a 
timely manner and was generally "non-responsive" (supp. R4, tab 46; tr. 136-38, 162, 190). 
12. On 4 September 2015, Ms. Redden withdrew as a candidate for the nurse 
midwife position for the second time. This led Mr. Elliot Clark, one of Mooney's chief 
recruiters, to write, in part on 7 October 2015: "Laura Redden was previously worked by 
our recruiter on two separate occasions ... both times she flaked out. We will not consider 
[her] as a viable candidate." (Supp. R4, tab 46, emphasis added) After, Ms. Redden 
withdrew, Mooney began, once again, to recruit for the nurse midwife position (tr. 163). 
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13. As a result of these developments, Mooney had not submitted the required 
credentialing package by 22 August 2015; moreover, as of the required date of21 September 
2015, Mooney had not provided a nurse midwife to report for duty (findings 8, 9; tr. 33). The 
contractual requirements notwithstanding, Mooney had not informed the CO in writing of 
these delays (tr. 34; finding 3). 
14. Accordingly, on 22 September 2015, the CO forwarded a cure notice. Mr. Weaver 
wrote, in pertinent part: 
(a) Performance Work Statement (PWS), paragraphs 1.1.5.2 
and 2.3.2.2.2, requires the Contractor to place fully qualified 
credentialed and non-credentialed healthcare workers (HCWs) 
within the timeframes in Section H.3 (i) of the contract. This is 
in accordance with Table C-1, Services Summary, performance 
objective "Places" manages the placement HCWs such that 
vacancies do not exceed 30 consecutive calendar days. 
(b) Paragraph H.3(f) requires the contractor to notify the 
Contracting Officer immediately of any delays in 
accomplishing any of the tasks identified on the contract. 
1. The purpose of this letter is to express my concern regarding 
the placement of a Certified Nurse-Midwife, a credentialed 
HCW on Task Order No. FA8053-12-D-0025-6C08 at the 375th 
Medical Group Clinics on Scott AFB and its Family Practice 
Clinic in Belleville, Illinois. 
2. This position had a required start date of no later than 
21 September 2015, as outlined in Paragraph H.3(g) of your 
contract. To date, this position remains unfilled. 
3. You are hereby notified that the Government considers your 
failure to meet the placement requirements for the above task 
order (6C08) of federal contract FA8053-12-D-0025 as a 
condition which is endangering performance on this task order. 
Your failure to meet the required placement time of 60 days 
after award as required by section H.3(g) has caused a hardship 
for the effected [sic] military treatment facility. The 
Government expects you to comply with the terms of the 
contract as it relates to the placement of credentialed healthcare 
workers. Therefore, unless an acceptable candidate is 
submitted within IO calendar days from the receipt of this cure 
notice the Government may terminate this task order for default 
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under the terms and conditions of FAR 52.249-8 Default 
(Fixed-Price Supply & Service) clause of your contract. 
4. The Government expects you to comply with the terms of 
the contract as it relates to the placement of credentialed 
HCWs. Unless an acceptable HCW candidate is submitted 
within 10 calendar days from the receipt of this Cure Notice, 
the Government may terminate this Task Order for default 
under the terms and conditions of FAR Clause 52.249-8 
Default (Fixed-Price Supply & Service) within your contract. 
5. Please submit your formal response to the undersigned at 
375th Contracting Squadron, 201 East Winters Street Building 
50, Scott AFB, IL, 62225-5015. 
(R4, tab 18; tr. 33-34) 
15. Instead of a '"formal response,'· Mooney forwarded an email to the CO on 29 September 
2015, in which it stated: 
We acknowledge your concern of the failure to provide a 
Certified Nurse-Midwife for the Scott AFB Family Practice 
Clinic. Our recruiting efforts have resulted in a series [sic] 
candidates accepting and later declining the position. We have 
all recruiters aggressively recruiting to find a candidate that is 
qualified, sold, [sic] and committed to filling this critical 
position. We are aware of the October 2, 2015 suspense date to 
prove a candidate to fill this position. We will do our best to 
fill this position. 
(R4, tabs 19. 20; tr. 34) 
16. Despite Mooney's assurances, the CO testified that '·when the 2nct came there 
was no candidate" (tr. 35). Accordingly, on 6 October 2015, the CO issued a show cause 
notice, in which he wrote: 
1. Since you have failed to cure the conditions endangering 
performance under your Task order as described to you in the 
Governments [sic] letter of 22 September 2015, the 
Government is considering terminating the task order 
FA8053-12-D-0025-6C08 dated 23 July 2015 for default. In 
accordance with Federal Acquisition Regulations (FAR) clause 
52.249-8, Default (Fixed-Price Supply and Service). Pending a 
final decision in this matter, it will be necessary to determine 
9 

whether your failure to perform arose from causes beyond your 
control and without fault or negligence on your part. 
Accordingly, you are given the opportunity to present, in 
writing, any facts bearing on the question to the contracting 
officer, Darryl E. D. Weaver, within I 0 days after receipt of 
this notice. Your failure to present any and all issues within 
this time may be considered as an admission that none exist. 
Your attention is invited to FAR 52.249-8(b) to the respective 
rights of the Contractor and the Government and the liabilities 
that may be invoked if a decision is made to terminate for 
default. Any assistance given to you on this contract or any 
acceptance by the Government of delinquent services will be 
solely for the purpose of mitigating damages, and it is not the 
intention of the Government to condone any delinquency or to 
waive any rights the Government has under the contract. 
2. The terms of the task order required that a Certified Nurse -
Midwife be performing at Scott AFB, Illinois not later than 
22 Sep 2015. You have failed to meet this. 
3. You may direct any questions regarding this matter and any 
response to the default determination to the undersigned at 375 
Contracting Squadron, 20 I East Winters Street, Bldg. 50, Scott 
AFB, Illinois 62225-5015. 
(R4. tab 21; tr. 35-36) 
17. On 16 October 2015, Mooney forwarded a formal response to the CO' s show 
cause notice. It contended that its noncompliance was due, largely, to "factors that were 
beyond [its] fault or negligence." Mooney explained, without any substantiation, that there 
was a "shortage in the marketplace for qualified Certified Nurse-Midwife practioners 
[sic]." It also stated that "[p ]revious candidates accepted the position and then 
declined ... due to no fault" on Mooney's part. Mooney also wrote: 
In response to the Show Cause Notice for Task Order 
FA8053-12-D-0025-6C08; we are pleased to inform you that the 
previous approved candidate Laura Redden has agreed to our 
renegotiation with her compensation package. We are back on 
track with the goal to have her credentialed package to the 
installation NL T October 23, 2015. As an added measure our 
recruiters will continue recruiting a back-up candidate however, 
I am confident Ms. Redden is I 00% percent committed to 
securing this position. 
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(R4, tab 22) Thus, Mooney, once again, proffered Ms. Redden as a candidate for the nurse 
midwife position despite the fact that, in the words of one of its chief recruiters, she "was 
previously worked by our recruiter on two separate occasions ... both times she flaked out. 
We will not consider [her] as a viable candidate. (Finding 12; R4, tab 22; tr. 36-37) 
18. Mr. Weaver replied to Mooney's response on 21October2015, in which he 
wrote in part: 
1. The Government acknowledges receipt of your ktter dated 
16 October 2015 in response to the Show Cause Notice dated 
6 October 2015. 
2. The Government will suspend the Termination process 
pending receipt of the Credentialing Package as stated in 
paragraph 2 of your letter. If the Credentialing Package is not 
received "NL T 23 October 2015" the Government will 
re-evaluate whether to proceed with the Termination process. 
(R4, tab 23; tr. 37-38) 
19. Mooney did not forward the credentialing package to the Air Force by 
23 October 2015, as directed by the CO. On 27 October 2015, Mr. Murphy, the Air 
Force's contracting officer's representative, informed the CO that the package was 
incomplete and that several items were still needed (R4, tab 25). As the CO testified, there 
is a "[b ]ig difference between" a credentialed package and a non-credentialed one (tr. 39). 
In an email of 27 October 2015, Mooney offered its "sincerest apology" for its "oversight." 
It then offered a timeline for completion of the package. (R4, tab 26 at 1-2) 
20. The Air Force received Ms. Redden's package on 13 November 2015; and her 
privileges were approved by the credentials manager on 30 November 2015 (supp. R4, 
tabs 4, 5). 
21. On 3 December 2015, Mooney proposed 18 January 2016, as a start date for 
Ms. Redden, "primarily to give her current employer a reasonable notice of resignation and 
arrange for her household goods and pets" (R4, tab 28 at 1 ). On 8 December 2015, the CO 
forwarded an email to Mooney in which he stated: 
The Medical Group Commanders have agreed to a 
19 January 2016 start date, but are not pleased with the 
performance of this requirement by your company to date. The 
Contracting Officers Representative will be sending the 
welcoming letter to your Health Care Worker shortly. 
11 

In addition, a modification reducing the estimated 
funding on this Task Order through the middle of December 
2015 will be forthcoming. 
(R4, tab 29 at 1 )2 
22. Although, Mooney had proffered Ms. Redden as a nurse midwife in 
August 2015 (finding 10; tr. 190), it was not until December 2015 that it began to 
inquire as to her relocation efforts (tr. 181-82). 
23. On 14 January 2016, Mooney informed the CO that Ms. Redden would "not 
proceed with the position due to relocation issues" (R4, tab 30 at 1 ). Based upon the 
testimony of Ms. Walker, Mooney's recruiter, these issues revolved around Ms. Redden's 
dogs, cats, and a noisy macaw (tr. 185-86). In its notification of 14 January 2016, 
Mooney identified, for the first time, another potential candidate named Linda Kelleher 
(R4, tab 30 at 1).3 
24. Mooney did not proffer a Certified Nurse Midwife at Scott Air Force Base on 
or prior to 19 January 2016 (tr. 8, 139, 194). 
25. The CO, once again, discussed the matter with the Medical Group at Scott Air 
Force Base and ultimately decided to process the requirement "as a termination for 
default" (R4, tab 32 at 2). 
26. In a "MEMORANDUM FOR RECORD" dated 19 January 2016, the CO traced 
the contract's history and concluded: 
After due consideration of all the pertinent facts, the undersigned 
Contracting Officer hereby finds and determines that NES has 
failed to meet the performance requirements of the subject task 
order within the time required by the terms and conditions of the 
contract. That failure did not arise out of causes beyond their 
control or without fault or negligence on their part. Therefore, 
this Task Order will be Terminated for Default in accordance 
with Federal Acquisition Regulation 52.249-8 "Default (Fixed 
2 The date of 18 January 2016 was a federal holiday (tr. 80-81). At the hearing, none of 
Mooney's witnesses disputed that this revised date was agreed to by both parties. 
3 Mooney's counsel admitted at the hearing that his client "didn't meet" the revised 
performance date (tr. 8). Ms. Kelleher was proffered as a candidate by the follow-on 
contractor but she was deemed unacceptable by the government because there was an 
alleged adjudication from the State of Georgia that she had previously practiced 
without a license (tr. 51-52). 
12 

Price Supply and Services)" April 1984, effective upon receipt of 
this notice. 
(R4, tab 31 at 2) 
27. On 7 April 2016, Mr. Weaver forwarded to Mooney a final decision in 
which he wrote, in part: 
1. You are hereby notified that your right to proceed under this 
contract and task order is hereby terminated in its entirety 
pursuant to FAR 52.249-8, Default (Fixed Price Supply and 
Services). Termination is effective immediately upon receipt 
of this notice. This action is a result of your failure to perfonn 
services in accordance with the contract terms and conditions 
and the task order. 
2. This is the final decision of the Contracting Officer. 
Attached to this letter is Modification 01 to the above 
referenced task order which terminates CL INS 0001, 0002 and 
0003 for default. Nurses Etc. Staffing (NES) may be liable for 
any excess costs per FAR 49 .402-3(g)( 4 ). The terms and 
conditions of other existing task orders remain in effect until 
completion. 
(R4, tab 33) This appeal followed. 
DECISION 
It is axiomatic that the government bears the burden of proving that a default termination 
was proper. Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 763 (Fed. Cir. 1987). 
Moreover, it is settled law that a default termination is a drastic sanction which should be 
sustained only for good grounds and on solid guidance. JD. Hedin Construction Co. v. United 
States, 408 F.2d 424, 431 (Ct. Cl. 1969). If the government establishes a prima facie case that the 
termination was proper, the burden of production, on going forward with the evidence, shifts to 
the contractor. Benju Corp., ASBCA No. 43648 et al., 97-2 BCA ~ 29,274 at 145,654; Lean 
Construction and Engineering Co., ASBCA No. 59016, 16-1BCA~36,375 at 177,375. 
The default clause which is applicable to this appeal is FAR clause 52.249-8(a)(l )(i), 
DEFAULT (FIXED-PRICE SUPPL y & SERVICE (APR 1984 ), which provides: 
(a)(l) 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 -
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(Finding 4) 
(i) Deliver the supplies or to perform the services within 
the time specified in this contract or any extension .... 
After having previously failed to perform, Mooney itself suggested a revised start 
date of 18 January 2016, which was later adjusted to 19 January 2016 because of a federal 
holiday. The government acquiesced in this performance date. (Finding 21) At the 
hearing, none of Mooney's witnesses disputed that there was an agreement between the 
parties as to the new performance date (id.). 
It is also beyond dispute, as conceded by Mooney's counsel at the hearing, that it 
did not meet the revised performance date of 19 January 2016 (finding 23 ). Accordingly, 
the government has established a prima facie case that Mooney had failed "to perform the 
services within the time specified in this contract or any extension" (finding 4). 
Therefore, the burden of production, or going forward with the evidence, shifts to 
Mooney. In order to prevail it must produce evidence showing that its failure to perform 
the contract "arises from causes beyond [its] control and without [its] fault or negligence" 
(finding 4). Citing the various excusable causes contained in FAR 52.249-8(c), Mooney 
contends that the labor shortage which it experienced can be analogized as a "strike" ( app. 
br. at 22-29; findings 4, 17). However, Mooney's allegation that there was a shortage of 
Certified Midwife Nurses derives no support from the record (finding 17). Moreover, it has 
not identified any circumstance which could constitute an organized labor action such as a 
"strike" (app. br.,passim). Hydro Fitting Mfg. Corp., ASBCA Nos. 11768, 13077, 70-1 
BCA ~ 8211 at 38,183. Thus, its argument must fail. 
Mooney also contends that the "termination was procedurally defective" because the 
CO failed to issue a second cure notice pursuant to FAR 52.249-8(a)(2) (app. br. at 25-26). 
Mooney is mistaken. Through its plain language, this default clause only requires the 
issuance of cure notices for terminations undertaken pursuant to FAR 52.249-8(a)(ii) and 
(iii). Here, the CO terminated Mooney's contract under FAR 52.249-8(a)(l)(i) which 
relates to, in pertinent part failure to "perform the services within the time specified in this 
contract or any extension" (findings 4, 27). Hence, no cure notices were ever required. 
The fact that the CO, apparently acting out of an abundance of caution issued both a show 
cause order and a cure notice is legally irrelevant (findings 14, 16). AEON Group, LLC, 
ASBCA Nos. 56142, 56251, 14-1BCA~35,692 at 174,753. 
Finally, Mooney argues that the government somehow surrendered its right to 
terminate the contract for default because it did not act within a reasonable time after the 
original performance date of 21 September 2016 (app. br. at 23-25). In formulating this 
contention Mooney ignores the fact that the revised performance date of 19 January 2016 
14 

was agreed to by both parties, and, indeed, was suggested by Mooney's representations 
(finding 21). It is, thus, undisputed that Mooney acquiesced in the revised performance date. 
The appeal is denied. 
Dated: 7 December 2017 
I concur 
/'; 
!~/~;:::------ ____ · __ 
_ : :' v 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
CONCLUSION 
MICHAEL T. PAUL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
0 
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. 60574, Appeal of Donald L. Mooney 
Enterprises, LLC dba Nurses Etc. Staffing, rendered in conformance with the Board's 
Charter. 
Dated: 
15 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals