Windamir Development, Inc.
Docket: ASBCA 63461
Decision date: 2023-12-21

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE 
GOVERNMENT’S MOTION TO DISMISS FOR LACK OF JURISDICTION 
 
 A ppellant, Windamir Development, Inc., challenges the government’s 
termination of its contract for default, and requests more than $1 million in alleged 
damages.1  The government moves to dismiss the appeal in its entirety, for lack of 
jurisdiction.  We grant the motion in part, and deny the motion in part. 
 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
 
 In 2019, the parties entered into an indefinite quantity, indefinite delivery 
contract for construction work to be performed at naval stations in Florida and 
Georgia.
2  Pursuant to that contract, the government issued to Windamir an order for 
the construction of a Naval Reserve Center at Fort Benning, Georgia.3  In July 2021, 
the government issued to Windamir a notice of non-compliance, alleging that there 
were “[e]xcessive amounts of organics in fill material used to construct the building 
pad.”4 
 
 I n December 2021, Windamir presented to the contracting officer a claim 
requesting that: 
 
1 Compl. at 11 ¶ 36. 
2 R4, tab 1 at 1, 5. 
3 R4, tab 5 at 47.  The Department of the Army has renamed Fort Benning to 
Fort Moore as of May 11, 2023. 
4 Compl. at 1 ¶ 2; answer at 1 ¶ 2. 
Appeal of - )  
 )  
Windamir Development, Inc. ) ASBCA No. 63461 
 )  
Under Contract No. N69450-19-D-0922 
       Task Order No. N69450-19-F-0864 
) 
)  
 
APPEARANCE FOR THE APPELLANT: Jacob W. Scott, Esq. 
    Smith, Currie & Hancock LLP 
    Tysons, VA 
 
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. 
    Navy Chief Trial Attorney 
 Antonio T. Robinson, Esq. 
    Trial Attorney 

2 
 
 
[T]he Government should change its interpretation of 
applicable Section 31 00 00, such that the Government 
determines that the material supplied by Windamir is, 
indeed “satisfactory material”, and not “unsatisfactory 
material” as those terms are used in such specification.5
  
 
The contracting officer appears not to have issued a decision upon that claim. 
 
 In August 2022, the government terminated the contract for default, citing 
Windamir’s alleged failure (1) to “meet the requirements of Specification Section 31 
00 00” concerning “Unsatisfactory Materials,” including material that “contains root 
and other organic matter”; and (2) to meet “the contract completion date of May 4, 
2022.”
6   
 
 In November 2022, Windamir noticed this appeal.  Windamir claimed to be 
appealing from what it called the denial of its 2021 claim, as well as from the 
termination of the contract for default.
7  Windamir filed a four-count complaint 
requesting what we understand to be (1) conversion of the termination to one for the 
convenience of the government, (2) termination for convenience costs, (3) declaratory 
relief, and (4) damages in the amount of $1,154,216.75.8  Count I of the complaint 
states: 
 
Windamir seeks, and is entitled to, a Declaration from this 
Tribunal that (1) the Government’s purported Termination 
for Default was unwarranted, (2) the Government’s 
Termination should be considered a Termination for 
Convenience, and (3) Windamir it entitled to recover its 
costs upon such a Termination for Convenience as allowed 
under FAR 52.249-2 and otherwise under the law, in an 
amount to be proven to this Tribunal.
9 
 
Count II states: 
 
To the extent not covered by Count I above, Windamir 
seeks, and is entitled to, a declaration from this Tribunal 
 
5 R4, tab 21 at 110. 
6 R4, tab 23 at 115, 118. 
7 Notice of appeal at 2. 
8 Compl. at 8 ¶ 26, 11 ¶ 36. 
9 Id. at 9 ¶ 28. 

3 
 
that (1) the Government’s interpretation of the 
specifications has been incorrect, to wit, the Government 
should have determined that the material supplied by 
Windamir is, indeed “satisfactory material”, and not 
“unsatisfactory material” as those terms are 
used in the applicable specifications. 10 
 
Count III states: 
 
To the extent not covered by Count I above, and to the 
extent the Government correctly interprets Specification  
31 00 00 when it finds that soils having only trace organics 
are unsatisfactory and/or that the specifications require 
soils 100% devoid of organic matter, such speculations are 
defective. To such extent, Windamir seeks, and is entitled 
to, a declaration from this Tribunal that (1) Specifications 
31 00 00 (including any other specifications related 
thereto) are defective and that (2) Windamir is entitled to 
recovery its costs incurred as a result thereof.
11 
 
And Count IV states: 
 
The Government has breached its Contract with Windamir 
by, inter alia, (a) failing to properly compensate Windamir 
for its work on the project, (b) failing to property interpret 
various Contract provisions, (c) providing defective 
specifications, (d) requiring Windamir perform work 
in an amount or to an extent not required by the terms of 
the Contract, (e) improperly rejecting work property 
performed pursuant to the terms of the Contract, 
(f) improperly terminating Windamir without cause, 
(g) failing to cooperate in good faith with Windamir, and 
(h) in such other ways as my be shown in this matter. . . . 
Such breaches have proximately caused damages to 
Windamir in an amount to be proven. . . . As such, 
Windamir is entitled to recover from the Government on 
its Breach of Contract Count in an amount to be proven in 
this Tribunal.
12 
 
 
10 Id. ¶ 30. 
11 Id. at 10 ¶ 32. 
12 Id. at 10-11 ¶¶ 34-36. 

4 
 
DECISION 
  
Termination 
 
 Windamir challenges the termination of the contract for default, requesting that 
it be converted to one for the convenience of the government.13  We possess 
jurisdiction to entertain that request.  Skyquest Aviation, LLC, ASBCA No. 62586,  
21-1 BCA ¶ 37,784 at 183,374.  To that extent, the motion to dismiss is denied. 
 
 Windamir also presents allegations of government-caused project delay, 
presumably as an affirmative defense to the termination of the contract.14  A contractor 
contesting a default termination due to excusable delay must submit a claim for a time 
extension before appealing to the Board; otherwise the Board does not possess 
jurisdiction to entertain that challenge.  See ECC Centcom Constructors, LLC, ASBCA 
No. 60647, 18-1 BCA ¶ 37,133 at 180,713.  Windamir has not done so.  Consequently, 
the allegations of government-caused project delay are dismissed from the appeal.  We 
defer until the hearing of the appeal any issues regarding other, potentially pending 
affirmative defenses to the termination of the contract. 
 
Declaratory Relief 
 
 Windamir requests declaratory relief; specifically, declarations that its 
interpretation of certain specifications is correct, and that certain contract 
specifications are defective.
15  The contract having been terminated, there is no longer 
any live dispute between the parties regarding future performance of the contract; 
consequently, declaratory relief here would not be appropriate.  See Hensel Phelps 
Constr. Co., ASBCA No. 61517, 19-1 BCA ¶ 37,463 at 182,008.  Accordingly, we 
dismiss those requests for declaratory relief. 
 
Monetary relief 
 
 Windamir requests more than $1 million in monetary relief, arising from several 
alleged causes that Windamir attributes to the government,
16 as well as termination for 
convenience costs pursuant to Federal Acquisition Regulation 52.249-2.17  Windamir 
has not presented to the contracting officer any claim for monetary relief; 
consequently, we do not possess jurisdiction to entertain Windamir’s requests for 
monetary relief, and those requests are dismissed, for lack of jurisdiction.  CDM 
 
13 Compl. at 9 ¶ 28. 
14 Id. at 7 ¶ 24. 
15 Compl. at 9-10 ¶¶ 30, 32. 
16 See compl. at 8 ¶ 26, 11 ¶ 36(2). 
17 Compl. at 9 ¶ 28(3). 

5 
 
Constructors, Inc., ASBCA No. 59524, 15-1 BCA ¶ 36,097 at 176,238; Armour of Am. 
v. United States, 69 Fed. Cl. 587, 592 (2006) (no jurisdiction over claim for 
termination for convenience costs not presented to contracting officer); see 41 U.S.C. 
§§ 7103(a)(1), 7103(b)(1), 7104(a).  In any event, any request for termination for 
convenience costs is premature, given that the underlying default termination has not 
yet been resolved.  See Env’t Sys., ASBCA No. 53412, 02-2 BCA ¶ 32,027 at 158,295. 
 
CONCLUSION 
 
 The motion to dismiss is granted in part, and denied in part, as set forth above. 
 
 Dated:  December 21, 2023 
 
 
 
 
 
 
 
 
 
 
 
TIMOTHY P. MCILMAIL 
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 
 
 
 
 MICHAEL N. O’CONNELL 
Administrative Judge 
Acting Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
  


6 
 
 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. 63461, Appeal of Windamir 
Development, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  December 22, 2023  
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals