Coastal Environmental Group, Inc.
Docket: ASBCA 60410
Decision date: 2018-07-17

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
Coastal Environmental Group, Inc. 
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ASBCA No. 60410 
Under Contract No. N40085-I3-C-6541 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
John M. Manfredonia, Esq. 
James Petersen, Esq. 
Manfredonia Law Offices, LLC 
Cresskill, NJ 
Ronald J. Borro, Esq. 
Navy Chief Trial Attorney 
Matthew D. Bordelon, Esq. 
Robert R. Kiepura, Esq. 
Trial Attorneys 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL 
FINDINGS OF FACT 
On September 23, 2013, the parties contracted for appellant to make repairs to 
the Security Boat Marina at Naval Weapons Station Earle, Leonardo, New Jersey (R4, 
tab 5 at 204, 206). Specifically, the work consisted of work to three in-water features; 
namely, a "short wall," a "long wall;' and a buoy (id. at 233-34, ,r 6; tr. 3/46). The 
contract incorporated by reference Federal Acquisition Regulation (FAR) 52.249-10, 
DEFAULT (FIXED-PRICE CONSTRUCTION) (APR 1984), which provides: 
(a) If the Contractor refuses or fails to prosecute the 
work or any separable part, with the diligence that will 
insure its completion within the time specified in this 
contract including any extension, or fails to complete the 
work within this time, the Government may, by written 
notice to the Contractor, terminate the right to proceed 
with the work ( or the separable part of the work) that has 
been delayed. 
(R4, tab 5 at 209) The contract provided 13 5 days from the date of award to complete 
the work; that is, through February 5, 2014 (see id. at 203). 

Unless otherwise indicated, the following events all occurred in 2015. On 
January 8, the government ordered appellant to stop work, stating that "no work shall 
commence until you receive further notice from the Government" (app. supp. R4, 
tab 66 at 1-2 ). On July 31, in Modification No. 5, the parties agreed ( 1) to an increase 
in the contract price; (2) that "[i]n conjunction with the work specified in the subject 
contract," appellant would "[r]epair additional damage to the wave screen ... that 
occurred since contract award"; and (3) that the contract completion date would be 
November 26, 2015 (R4, tab 7 at 381-82). The modification included the following 
"Contractor's release": 
Acceptance of this modification by the contractor 
constitutes an accord and satisfaction and represents 
payment in full for both time and money and for any and 
all costs, impact effect, and for delays and disruptions 
arising out of, or incidental to, the work as herein revised. 
(Id. at 382,, 5 (emphasis added)) 1 
On September 15, the government requested that appellant provide an updated 
project schedule by the following day (R4, tab 20 at 428). Two days later, on 
September 17, the government told appellant that it "must contact this office in writing 
by 4:00 p.m. today if you plan to meet the terms of your contract by the scheduled 
completion date" (id. at 427-28). The government stated further that "[i]fthe 
requested information is not provided today or if you have determined that you are no 
longer able to meet the obligations within your contract, the Government intends to 
move forward and terminate your contract for default" (id. at 428). Minutes before the 
4:00 p.m. deadline, appellant provided to the government a project schedule that 
indicated (among other things) that it would take three days to complete the 
mobilization of equipment and materials to the site, and that if mobilization were 
complete by September 30, appellant would complete the contract work on 
November 26, 58 days later (see id. at 429, lines 22-23, 60). 
On October 5, the government complained to appellant that appellant had not 
"completed or met one single item" on its September 17, 2015 schedule (R4, tab 22 
at 434 ). Appellant responded on the same day, acknowledging that it was "behind 
schedule" and that it had not yet mobilized to the site, explaining that that it had 
"intentions of mobilizing within the next two weeks" (id. at 433). Appellant explained 
that "whaler systems ... are waiting to be delivered onsite," that "additional sheet 
1 Prior to the execution of Modification No. 5, the parties had bilaterally executed 
Modification Nos. 2 through 4 which collectively had extended the contract 
completion date to December 30, 2014. Each of those modifications included 
the same release language as in No. 5. (App. supp. R4, tabs 10-12) 
2 

piles ... are awaiting confirmation oflead time and delivery," and that "[m]iscellaneous 
steel and timber capping shall be provided by the Subcontractor" (id.). Appellant 
further stated that it was "working to confirm exact dates in order to provide an 
updated schedule" to the government (id. (emphasis added)). By October 8, 2015, 
appellant had not mobilized its equipment and materials to the site (see tr. 3/169- 70). 
On October 8, with 50 days remaining before the November 26 contract 
completion deadline, the contracting officer terminated the contract for default, citing 
"continued lack of progress thereby endangering completion as required by the 
contract" (R4, tab 25). Appellant appealed to the Board on January 8, 2016. 
Appellant is a New York corporation that dissolved on June 29, 2016 (tr. 3/110, 114). 
The project manager of a maritime construction company that appellant had 
planned to hire to perform the onsite work testified at the hearing of the appeal that the 
company was prepared to perform the work and complete it by November 26, 2015, 
working only 8 hours per day, but that~ "ifthere was any kind of need to escalate, we 
had 24 hours a day to work" (tr. 4/13-14). The project manager provided a breakdown 
of how the work would have progressed, including that most of the work would have 
progressed simultaneously (tr. 4/20-21, 29, 33). 
DECISION 
Appellant wants the termination for default converted to one for the 
convenience of the government. The government says that the Board does not possess 
jurisdiction to entertain the appeal because appellant is a New York corporation that 
has been dissolved since June 29, 2016 (see gov't br. at 25). We look to the law of the 
state of incorporation to answer that question. See TPS, Inc., ASBCA No. 52421, 
01-1 BCA ,i 31,375 at 154,916. Under New York law, "[t]he dissolution ofa 
corporation shall not affect any remedy available to or against such corporation ... for 
any right or claim existing ... before such dissolution." N.Y. Bus. Corp. Law§ 1006(b) 
(McKinney 2018). The "right or claim" here, appellant's challenge to the government's 
termination of its contract, arose on the date of that termination: October 8, 2015. The 
subsequent dissolution of appellant does not affect appellant's capacity to appeal from 
the termination of the contract, or our jurisdiction to entertain that appeal. 
Regarding the termination of the contract for default for failure to make progress 
("continued lack of progress," as the contracting officer put it), the question is whether the 
government has demonstrated that on October 8, 2015 (the termination date), it was 
reasonable to conclude that there was no reasonable likelihood that appellant would 
complete the project by November 26, 2015 (the contract completion date). See 
Securiforce International America, LLC v. United States, 879 F.3d 1354, 1364 (Fed. Cir. 
2018); Empire Energy Management Systems, Inc. v. Roche, 362 F.3d 1343, 1357 (Fed. Cir. 
2004); Nelson, Inc., ASBCA Nos. 57201, 58166, 16-1 BCA ,i 36,195 at 176,588 (involving 
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I 
FAR 52.249-IO(a)). On September 17, 2015, appellant provided the government a project 
schedule indicating that it would take 3 days to mobilize, and 58 days to complete the work 
once mobilization was complete. By October 8, only 50 days remained before the 
November 26 contract completion date, and appellant had not begun mobilization. 
Moreover, on October 5, only three days before the October 8 termination of the contract, 
appellant told the government that a new project schedule was forthcoming, and that it 
intended to mobilize within "the next two weeks." Those events indicated that, as of 
October 8, 2015, (1) appellant's September 17 schedule projecting contract completion by 
the November 26 contract completion date was no longer operative; (2) the earliest 
appellant could complete the work (and only if it commenced mobilization immediately; 
that is, by October 9) was December 9, 2015, 13 days after the contract completion date; 
and (3) appellant might not complete mobilization until October 19 (14 days after its 
October5 communication), in which case it would not complete the work until 
December 16, 2015, 20 days after the contract completion date. Those facts made it 
reasonable to conclude on October 8, 2015, that there was no reasonable likelihood 
appellant would to complete the project by November 26, 2015 (the contract completion 
date). Cf Empire Energy, 362 F.3d at 1357-58 (affirming denial of appeal from 
termination of contract for default for failure to make progress where contractor was 
154 days from contract completion with only 106 days to complete on time). 
Appellant says that it could have completed the work on time, pointing to the 
testimony of the project manager of the maritime construction company that appellant 
had planned to hire, who testified that the work could have been completed by 
November 26, 2015, working only one shift per day, or through acceleration, if 
necessary. That post-termination evidence does not change our conclusion; the issue is 
whether it was reasonable to conclude on October 8, 2015, that there was no reasonable 
likelihood that appellant would complete work within the time remaining. See 
Securiforce, 879 F.3d at 1364; McDonnell Douglas Corp. v. United States, 323 F.3d 
1006, 1017 (Fed. Cir. 2003) ("Limiting the inquiry to the time of the termination action 
reduces the potential for hindsight bias."). Appellant points to no evidence that the 
government was aware on October 8, 2015, of any plan to complete the work between 
then and November 26, 2015, even through acceleration. Indeed, what appellant had 
told the government by then indicated that appellant needed at least 13 days more than 
remained to complete the work. Consequently, the termination for default is justified. 
Now it's up to appellant to demonstrate that its default was excusable. See 
Joseph Sottolano, ASBCA Nos. 59081, 60043, 16-1BCA136,315 at 177,065. 
Appellant says that the real contract completion date is June 15, 2016, because the 
government stopped work from January 8 through July 29, 2015, when the parties 
entered Modification No. 5 (app. br. at 12-13, 19 n.3). Modification No. 5, without 
saying so, lifted the government's January 8, 2015 stop-work order by setting a new 
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contract completion date.2 However, in the modification's "Contractor's release," 
appellant waived any pre-modification causes of government-caused delay. Appellant 
says that the release is limited by the phrase "the work as herein revised" to the 
additional repairs to the wave screen that are specified in the modification (app. hr. 
at 14 ), but the release doesn't use a phrase, for example, like "the revisions to the work 
herein" that might have limited its application to the work introduced by the 
modification. Compare Ingalls Shipbuilding Div., Litton Sys., Inc., ASBCA 
No. 17579, 78-1 BCA 1 13,038 at 63,663 (release stating "in full and final settlement 
of all claims arising out of this modification .. .including all claims for delays and 
disruption resulting from, caused by, or incident to such modifications or change 
orders" was "for the particular modifications ... referenced"). Rather, the "work" 
referenced in the release is the same "work specified in the subject contract" 
referenced elsewhere in Modification No. 5. The modification revises the "work 
specified in the subject contract" by adding to that work the repairs to the wave screen 
referenced (as the release describes) "herein"; that is, in the modification. The release 
then, applies to "any and all ... delays and disruptions arising out of or incidental to" 
the "work specified in the subject contract"; that is, to all the contract work, including 
delays arising out of, or incidental to, the government's January 8, 2015 stop-work 
order. Cf Great America Construction Co., ASBCA Nos. 60437, 60501, 16-1 BCA 
1 36,460 at 177,678 (release "from all liability and from all existing and future claims 
and demands that it may have under this contract, insofar as it pertains to the contract" 
was a general release that barred all claims). Indeed, with Modification No. 5, the 
parties wiped the slate clean and started anew. See Colonial Manufacturing Co., 
ASBCA No. 18703, 75-1BCA111,026 at 52,500. Appellant has not demonstrated 
that its default was excusable. 
The appeal is denied. 
Dated: July 17, 2018 
(Signatures continued) 
CONCLUSION 
--:~ :iM~MAIL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
2 Appellant admits that in its view, "Modification P00005 meant that the Navy's stop 
work order had been lifted" (app. br. at 5,126). 
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I 
I concur 
~CKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
~/ 
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. 60410, Appeal of Coastal 
Environmental Group, Inc., rendered in conformance with the Board's Charter. 
Dated: 
6 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals