ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE WITWER 
ON RESPONDENT’S MOTION FOR SUMMARY JUDGMENT 
 
 This appeal arises from the Department of the Navy’s year-long closure of the 
Atlantic Undersea Test and Evaluation Center (AUTEC) on Andros Island in the 
Bahamas undertaken in response to the COVID-19 pandemic.  The Haskell Company, 
a construction contractor performing work at AUTEC under a fixed-price task order, 
alleges that its work was hindered, disrupted, impacted, and delayed by the Navy’s 
actions and inactions during the pandemic.  The Navy has moved for summary 
judgment on the ground that the sovereign acts doctrine bars Haskell’s claims. 
 
 We grant the Navy’s motion in part and deny it  in part.  We hold that the 
decision to close AUTEC and exclude Haskell from the base was a valid exercise of 
sovereign authority.  Haskell has not raised a genuine dispute of material fact that the 
closure was specifically directed at Haskell or undertaken to financially benefit the 
government in connection with this contract.  Accordingly, Haskell’s claim for costs 
arising from the base closure is barred by the sovereign acts doctrine.  We also grant 
the Navy’s motion with respect to costs Haskell incurred in replanning the project 
following the base’s reopening, including implementing public health measures that 
made base access more difficult. 
 
 We deny the motion with respect to offsite work that may not have required 
base access, as the Navy has not demonstrated that such work was rendered impossible 
Appeals of - )  
 )  
The Haskell Company ) ASBCA Nos. 63332, 63586 
 )  
Under Contract No. N69450-19-D-0909 
       Task Order No. N69450-19-F-0874 
) 
) 
 
   
APPEARANCES FOR THE APPELLANT: James E. Krause, Esq. 
James A. Galloway, Esq. 
    James E. Krause, P.A. 
    Jacksonville, FL 
 
APPEARANCES FOR THE GOVERNMENT: Allison M. McDade, Esq. 
    Navy Chief Trial Attorney 
 J. Alexandra Fitzmaurice, Esq. 
Amy L. Zobel, Esq. 
    Trial Attorneys 

2 
or that no material facts remain in dispute.  We also deny summary judgment with 
respect to one category of replanning costs that Haskell attributes to coordination 
conflicts that allegedly arose after the base reopened, when multiple projects resumed 
concurrently (hereinafter “logistical bottleneck costs”).  Regarding these costs, we find 
the briefing and record insufficiently developed for us to grant summary judgment. 
 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
The Base Contract 
 
1.  The following facts are undisputed.  On February 22, 2019, the Naval 
Facilities Engineering Systems Command (NAVFAC) Southeast awarded Contract 
No. N69450-19-D-0909 to Haskell (hereinafter the “base contract”) (GSUMF ¶ 1; 
app. resp. to GSUMF ¶; R4, tab 1).1  The base contract was one of five fixed-price, 
indefinite-delivery, indefinite-quantity (IDIQ) contracts awarded under a multiple-
award construction contract for NAVFAC Southeast’s area of responsibility (R4, tab 1 
at GOV5). 
 
2.  The base contract incorporated by reference two Federal Acquisition 
Regulation (FAR) clauses relevant to the dispute:  52.242-14, SUSPENSION OF 
WORK (APR 1984), and 52.249-10, DEFAULT (FIXED-PRICE CONSTRUCTION) 
(APR 1984)) (GSUMF ¶¶ 2, 5; app. resp. to GSUMF ¶¶ 2, 5; R4, tab 1 at GOV12). 
 
The Task Order 
 
3.  On September 26, 2019, NAVFAC issued Haskell a fixed-price, design-
build task order for the construction of austere housing quarters at AUTEC located on 
Andros Island, Bahamas (R4, tab 3 at GOV977-78).  AUTEC is a Navy test facility 
that supports Research, Development, Test and Evaluation (RDT&E) efforts, as well 
as fleet training, certification, and proficiency exercises.  It operates a deep-water 
range facility, which is used by agreement with the Royal Navy of the United 
Kingdom and the Bahamas.  The base supports both a permanent onsite workforce and 
visiting users who conduct exercises and tests at the range.
2  (GSUMF ¶¶ 7-8, 10-12; 
app. resp. to GSUMF ¶¶ 7-8, 10-12; gov’t mot., ex. A at GOV2629; Woodcock aff. 
¶ 3-6; R4, tab 2 at GOV344) 
 
 
1 GSUMF refers to the Government’s Statement of Undisputed Material Facts. 
2 AUTEC is a detachment of the Naval Undersea Warfare Center (NUWC) Newport 
Division in Newport, Rhode Island.  The NUWC Newport Division is a Field 
Activity of Naval Sea Systems Command (NAVSEA).  (GSUMF ¶¶ 7-8, 10-12; 
app. resp. to GSUMF ¶¶ 7-8, 10-12; gov’t mot., ex. A at GOV2629; Woodcock 
aff. ¶ 3-6; R4, tab 2 at GOV344) 

3 
4.  The task order was intended to address deficiencies in AUTEC’s existing 
housing.  It required Haskell to remove substandard existing housing units and 
construct a new, two-story austere housing facility.  (R4, tab 2 at GOV344) 
 
5.  The task order included a clause titled “Anticipated Restricted Delays,” 
which provided that, if the installation were closed for more than five lost workdays 
in a calendar year, the contracting officer would issue a no-cost contract modification 
extending the contract completion date if the critical path was impacted (R4, tab 2 
at GOV84). 
 
6.  NAVFAC issued Haskell written Notice to Proceed with the design phase in 
October 2019 (R4, tab 20A-Ex.2 at GOV1727).  Under the task order, Haskell was 
to complete construction within 816 calendar days from the date of award (R4, tab 3 
at GOV982; app. opp’n at 9). 
 
COVID-19 Pandemic and the Base Closure 
 
7.  We take judicial notice that, on March 11, 2020, the World Health 
Organization declared COVID-19 a global pandemic.  In response, the Government 
of the Bahamas issued a series of emergency public health orders throughout 2020 
and 2021.  These orders imposed travel bans, quarantine requirements, and access 
restrictions, both within the country and for those entering from abroad.  (GSUMF ¶ 23; 
app. resp. to GSUMF ¶ 23; gov’t mot., ex. B; app. opp’n at 1-2, 9; app. supp. R4, 
tabs 7-62, 69) 
 
8.  The Navy command at AUTEC also implemented preventative measures 
to minimize the spread of the virus.  On March 18, 2020, AUTEC’s Officer-in-Charge, 
Commander Michael Woodcock, ordered the base closed to non-essential personnel 
“to minimize the potential threat of the coronavirus spread to the base” (GSUMF 
¶¶ 24-25; app. resp. to GSUMF ¶¶ 24-25; app. opp’n at 2, 9; R4, tab 20B-Ex.2 
at GOV1802-03).  He emphasized that the primary purpose of the closure was to 
protect the health and safety of those on base (R4, tab 20B-Ex.2 at GOV1803). 
 
9.  In a follow-up communication, the Officer-in-Charge described the 
Restriction of Movement (ROM) protocols that would apply to personnel arriving 
at AUTEC.  He reiterated that preventing the virus from reaching the base was his 
top priority, while ensuring that the base remained available for mission-essential 
operations.  (Gov’t mot, ex. C) 
 
10.  Haskell’s contract was not deemed mission-essential (R4, tab 20B-Ex.2 
at GOV1802, GOV1826).  On March 19, 2020, NAVFAC forwarded the Officer-in-
Charge’s order to the Haskell and instructed the company to recall its personnel and 

4 
suspend all onsite activities at AUTEC (GSUMF ¶ 25; app. resp. to GSUMF ¶ 25; 
R4, tab 20B-Ex.2 at GOV1802-03). 
 
11.  That same day, Haskell acknowledged the directive, stating that it 
“appreciated the command’s decision to mitigate the potential transmission of the 
COVID-19 virus considering the remoteness of the location and heightened risk to 
personnel” (GSUMF ¶ 27; app. resp. to GSUMF ¶ 26; R4, tab 20B-Ex2 at GOV1804).  
Anticipating a prolonged closure, Haskell requested weekly coordination meetings 
with NAVFAC and AUTEC personnel to plan for eventual remobilization (R4, 
tab 20B-Ex. 2 at GOV1804). 
 
12.  AUTEC remained closed to Haskell for approximately one year.  During 
that time, NAVFAC did not issue a Suspension of Work Order or a Notice to Proceed 
with construction.  (R4, tab 20 at GOV1693, GOV1696) 
 
Contract Performance During the Base Closure 
 
13.  During the year-long closure of AUTEC, Haskell continued work that 
did not require onsite access to the base.  For instance, it advanced the design phase 
of the task order and submitted its final design in July 2020 (GSUMF ¶ 34; app. resp. 
to GSUMF ¶ 34; R4, tab 20-Ex.2 at GOV1825, GOV1906).  NAVFAC accepted the 
final design the following month (GSUMF ¶ 37; app. resp. to GSUMF ¶ 37; R4, 
tab 20-Ex.2 at GOV1906). 
 
14.  In May 2020, Haskell notified the Navy that it had begun procuring 
equipment and materials for the construction phase, including vehicles, trailers, cranes, 
and other items (R4, tab 20B-Ex.2, GOV1825-26).  Records also show that 
preconstruction activities were underway, including marine cargo load planning by an 
engineering subcontractor (id. at GOV1923; see also app. resp. to GSUMF ¶ 41 (citing 
R4, tab 20B-Ex.2 at GOV1908-2280)). 
 
15.  Haskell further asserts that, even before the design phase concluded, it 
mobilized personnel to order, manage, and receive shipments of early materials in line 
with the contract schedule (R4, tab 20 at GOV1693, GOV1702). 
 
16.  The Navy was aware that Haskell was undertaking these preparatory 
efforts.  During a May 2020 meeting with the contracting officer, Haskell told 
NAVFAC: 
 
Haskell and our subcontractor partners are making early 
purchase[s] in preparation for mobilizing, including 
equipment, trailers and material for early activities on the 
construction schedule.  We wanted to [] make sure the 

5 
government was aware of the items being purchased for 
this project and verify we should be proceeding this way. 
 
* * * 
 
Should we be purchasing material and storing state side in 
anticipation for the base reopening?  Should we release 
precast for production and storing it [] stateside? 
 
* * * 
 
Precast has 8-12 weeks [fabrication] time after we release.  
We were planning on releasing the precast on June 17th.  
Is there any issue with this? 
 
(GSUMF ¶ 29; app. resp. to GSUMF ¶ 29; R4, tab 20B-Ex.2 at GOV1825-27) 
 
17.  The contracting officer replied: 
 
I cannot tell you to do it.  Base commander is stopping the 
work, not NAVFAC.  If there is risk in your actions, 
NAVFAC will let us know.  If I felt there is a need in 
proceeding early with purchases, I would let you know.  
I don’t have the authority [to] stop you, however you know 
the base is closed.  I am advising Haskell to do nothing 
until we have more clarity.  I don’t want you in harms [sic] 
way. 
 
* * * 
 
A lot is contingent on when base commander reopens 
AUTEC.  I don’t want you to fabricate anything that is 
8-12 weeks.  Let’s all be on the same page here.  It can’t be 
delivered to the site right now.  I only pay for work in 
progress.  If we need to extend the [construction 
completion date] for the fabrication we can look at that.  
Let’s coordinate before you release large material 
purchase.  Whatever materials you released now, you are 
doing at risk until the Notice to Proceed for construction 
activities is issued. 
 
(GSUMF ¶¶ 30-31; app. resp. to GSUMF ¶¶ 30-31; R4, tab 20B-Ex.2 at GOV1826-27) 

6 
18.  In mid-July 2020, following completion of the final design, Haskell asked 
whether a Notice to Proceed with construction would be issued (R4, tab 20B-Ex.2 
at GOV1834).  Later that month, Haskell renewed the request and stated its belief that 
NAVFAC’s continued delay constituted a constructive suspension of the contract 
under the Suspension of Work clause (id.).  Haskell also clarified that it considered 
delay in issuing the Notice to Proceed to be distinct from the ongoing AUTEC base 
closure (id.). 
 
19.  Haskell informed NAVFAC that the directives not to release materials 
were creating administrative inefficiencies and risked exposing the project to price 
escalations (id.).  Haskell also explained that the delay was generating increased labor 
costs, rising material and shipping prices, and higher bond and insurance premiums 
(id.).  In short, Haskell argued that NAVFAC’s actions amounted to a constructive 
suspension of work that constrained its ability to mitigate time and cost impacts.  
At the same time, Haskell informed the government that without a formal Suspension 
of Work Order, it would keep project personnel assigned and would seek an equitable 
adjustment for the associated labor costs.  (Id.) 
 
20.  In an August 2020 response, the contracting officer denied the request for a 
Notice to Proceed, stating that “[i]t would be wholly improper, as well as 
impracticable, for the Government to issue a Notice to Proceed with Construction 
when existing circumstances are beyond the Government’s control, and construction 
cannot commence” (GSUMF ¶ 39 (quoting R4, tab 20B-Ex.2 at GOV1907); app. resp. 
to GSUMF ¶ 39)). 
 
21.  The contracting officer further emphasized: 
 
Until such a time the Government has issued a Notice to 
Proceed with Construction Activities, Haskell has not been 
issued the authority under this task order to mobilize or 
begin any construction activities.  Any incurred cost 
associated with mobilization or construction activities will 
be at the expense of Haskell; as these actions are unilateral 
decisions made by Haskell.  Therefore, the Government 
will not grant an equitable adjustment for costs associated 
with mobilization or construction work.  At this time, there 
are travel and entry restrictions imposed both in the 
Bahamas and AUTEC beyond the Government’s control. 
 
(R4, tab 20B-Ex.2 at GOV1904-05)  Regarding Haskell’s stated intent to retain 
personnel absent a Suspension of Work Order, the contracting officer responded that 
“[t]he Government is not in a position to issue a Suspension of Work as the 

7 
Government has yet to issue a Notice to Proceed with Construction—there is nothing 
for the Government to suspend” (id. at GOV1907). 
 
22.  In late August 2020, Haskell again requested a partial Notice to Proceed 
to conduct preconstruction activities (GSUMF ¶ 40; app. resp. to GSUMF ¶ 40; 
R4, tab 20B-Ex.2 at GOV1909-10).  NAVFAC denied the request, explaining: 
 
After an objective and thorough review of your request for 
the issuance of a partial notice to proceed, the government 
hereby determines that a partial notice to proceed will not 
be issued at this time.  Until all the travel restrictions are 
lifted for AUTEC, Andros Island and The Bahamas, the 
government is not in a position to even issue a partial 
notice to proceed. 
 
(GSUMF ¶ 41; app. resp. to GSUMF ¶ 41; R4, tab 20B-Ex.2 at GOV2280) 
 
23.  In sum, Haskell took the position that it was NAVFAC—not the Officer-in-
Charge of AUTEC—that was preventing performance of the contract during the base 
closure, and that NAVFAC’s actions, independent of the sovereign’s base access 
restrictions, caused additional delays and costs.  According to Haskell, NAVFAC’s 
refusal to issue a Notice to Proceed or authorize limited preconstruction activities 
effectively suspended the contract and impaired its ability to mitigate the impact of the 
closure.  The contracting officer, by contrast, contended that the work was not 
constructively suspended because construction could not have proceeded regardless, 
given the base’s closure and the travel restrictions imposed by the Bahamian 
Government and the Officer-in-Charge. 
 
Phased Reopening and Notice to Proceed with Construction 
 
24.  In June 2020, shortly before the Bahamian Government lifted its 
international travel ban, the Officer-in-Charge announced the development of a phased 
approach to reopening the base.  While acknowledging the ongoing threat of 
COVID-19, he stated that it was “time to work towards opening [the] gate and getting 
AUTEC to ‘The New Normal.’”  (Gov’t mot., ex. D at GOV2637-38)  Phase I would 
involve a period of evaluation during which AUTEC would monitor the impact of the 
lifted travel ban.  Dependents and visitors would be permitted to travel to AUTEC,  
but would be subject to both Bahamian public health requirements and Navy-imposed 
Restriction of Movement (ROM) protocols.  Although the reopening of certain base 
facilities might begin during Phase I, the Officer-in-Charge noted that such efforts 
would “likely start small” and expand only if public health controls proved effective.  
(Id. at GOV2638) 

8 
25.  Phase II included plans to reopen the base to outside personnel and lift 
ROM requirements for local personnel.  Personnel who traveled off-island or stateside 
would still be subject to ROM upon return.  (Id. at GOV2638-39; GSUMF ¶ 32; app. 
resp. to GSUMF ¶ 32)  Phase III, labeled “AUTEC New Normal,” allowed 
unrestricted travel from Navy-designated “green” locations but maintained ROM 
requirements for “red” locations.  The classification of locations as green or red was 
made by the Navy, not the Officer-in-Charge or NAVFAC.  (Gov’t mot., ex. D 
at GOV2639) 
 
26.  Although the record does not pinpoint the exact date AUTEC entered 
Phase I, it appears to have occurred soon after the phased reopening was announced 
(app. opp’n at 34).
3  However, AUTEC did not transition to Phase II until 
March 2021—approximately nine months later.  At that time, NAVFAC informed 
Haskell that base access during Phase II required submission and approval of a 
“bubble-to-bubble” travel plan by the Officer-in-Charge.4  (GSUMF ¶¶ 43; app. supp. 
to GSUMF ¶ 43; gov’t mot., ex. F at GOV2641) 
 
27.  On February 24, 2021, Haskell received a formal Notice to Proceed with 
construction (R4, tab 20 at GOV1697; R4, tab 20A-Ex.6 at GOV1742-43).  The notice 
outlined mitigation measures necessary for Haskell to resume work at AUTEC, 
including health visas, daily health screenings, COVID-19 testing, quarantines, 
and bubble-to-bubble plans (R4, tab 20A-Ex.6 at 1742-43). 
 
28.  In total, Haskell was excluded from the base for over a year from 
March 19, 2020 to April 26, 2021 (R4, tab 20 at GOV1693; gov’t reply to app. resp. 
to GSUMF ¶ 65). 
 
Haskell’s Claim 
 
29.  Haskell submitted a certified claim the contracting officer, alleging that it 
was not provided reasonable access to the worksite and was unable to diligently 
prosecute the work (R4, tab 20 at GOV1694).  Haskell sought both additional time and 
monetary damages (id. at GOV1710).  The contracting officer granted a 538-day time 
extension but denied the monetary request in full (R4, tabs 20A-Ex.12, 22). 
 
30.  Haskell’s claim seeks $396,775.95 in damages based on three categories of 
government-caused impacts: 
 
3 The exact date is not material to our decision. 
4 Although not material to our decision, we understand a “bubble” to mean a group 
isolating together during the pandemic.  A “bubble-to-bubble” plan allowed 
movement between two such groups, such as quarantined military bases, 
under strict protocols that avoided public contact. 

9 
(i)  Denial of access to the AUTEC base for over a year, 
followed by a requirement to discard its original 
construction plan and replan under new conditions; 
 
(ii)  NAVFAC’s delay in issuing a Notice to Proceed after 
design completion, along with its refusal to authorize 
limited procurement or subcontracting, which prevented 
Haskell from mitigating time and cost impacts; and 
 
(iii)  Underutilization of key personnel mobilized during 
the design phase to manage shipments and materials, 
resulting in “personnel inefficiency” costs from May to 
August 2020. 
 
(R4, tab 20 at GOV1700-01, GOV1716) 
 
31.  After the contracting officer denied its monetary claim, Haskell appealed 
to the Board. 
 
DECISION 
 
 The Navy has moved for summary judgment on its affirmative defense that 
Haskell’s exclusion from AUTEC was a sovereign act barring recovery on any part 
of the claim (gov’t mot. at 1).  Haskell counters that the sovereign acts doctrine 
does not apply for several reasons.  First, it argues that the year-long closure of 
AUTEC was unprecedented and unreasonable, particularly when compared to other 
Navy installations that remained open or reopened within weeks (app. opp’n at 2).  
Second, Haskell contends that the Navy lacked probable cause for the extended 
closure, noting that Bahamian public health orders cited by the Navy exempted 
AUTEC from closure after June 2020 (id.).  Finally, Haskell maintains that the base 
closure did not render performance impossible, as its continued preconstruction 
activities until NAVFAC unilaterally halted its efforts (id.). 
 
 We grant in part and deny in part the Navy’s motion.  For the reasons set forth 
below, we conclude that the closure of AUTEC was a sovereign act that shields the 
Navy from liability for costs associated with onsite work and—with one small 
exception—for the costs of replanning construction under new conditions following 
the base’s reopening.  Accordingly, we grant the Navy’s motion with respect to those 
costs.  However, we deny the Navy’s motion with respect to the “logistical bottleneck 
costs” due to an insufficiently developed record.  We also deny Haskell’s claimed 
preconstruction and “personnel inefficiency” costs, finding that the Navy has not 
demonstrated the absence of a genuine dispute of material fact regarding these aspects 
of the claim. 

10 
I.  Standards of Review 
 
A.  Summary Judgment 
 
Summary judgment is appropriate when the moving party demonstrates that 
there is no genuine issue as to any material fact and that the moving party is entitled 
to judgment as a matter of law.  Crown Operations Int’l, Ltd. v. Solutia Inc., 289 F.3d 
1367, 1375 (Fed. Cir. 2002).  The applicable substantive law determines which facts 
are material and may affect the outcome of the appeal.  Anderson v. Liberty Lobby, 
Inc., 477 U.S. 242, 248 (1986). 
 
Once the moving party meets its initial burden, the opposing party “must set 
forth specific facts showing that there is a genuine issue for trial.”  Id. (internal 
quotations omitted).  At this stage, the Board’s role is not “‘to weigh the evidence and 
determine the truth of the matter,’ but rather to ascertain whether material facts are 
disputed and whether there exists any genuine issue for trial.”  Sonabend Co., ASBCA 
No. 63359, 24-1 BCA ¶ 38,482 at 187,033 (quoting Holmes & Narver Constructors, 
Inc., ASBCA Nos. 52429, 52551, 02-1 BCA ¶ 31,849 at 157,393).  A dispute is 
genuine if, based on the entirety of the record, a reasonable factfinder could resolve a 
factual matter in favor of the nonmovant.  Anderson, 477 U.S. at 248.  All evidence 
must be viewed in the light most favorable to the nonmoving party.  Crown 
Operations, 289 F.3d at 1375. 
 
B.  Sovereign Acts Defense 
 
 In its motion, the Navy seeks summary judgment on its sovereign acts 
defense—“an affirmative defense that is an inherent part of every government 
contract.”  Conner Bros. Constr. Co. v. Geren, 550 F.3d 1368, 1371 (Fed. Cir. 2008) 
(citing Hughes Commc’ns Galaxy, Inc. v. United States, 988 F.2d 953, 958 (Fed. Cir. 
1993)).  Under this doctrine, the government in its role as contractor cannot be held 
liable for its general and public acts taken in its capacity as sovereign.  Id.; McCarthy 
HITT – Next NGA West JV, ASBCA No. 63571 et al., 24-1 BCA ¶ 38,483 at 187,041.  
The defense is rooted in the principle that “private contractors who deal with the 
United States should not be treated any more favorably than if they had contracted 
with a private party.”  Conner Bros. Constr. Co., 550 F.3d at 1373 (citing Horowitz v. 
United States, 267 U.S. 458, 461 (1925)).  “[T]he object of the sovereign acts defense 
is to place the Government as contractor on par with a private contractor in the same 
circumstances[.]”  United States v. Winstar Corp., 518 U.S. 839, 904 (1996). 
 
 To prevail, the government bears the burden of showing that:  (1) the 
governmental action was public and general; and (2) the act rendered performance of 
the contract impossible or impracticable.  Stockton E. Water Dist. v. United States, 583 
F.3d 1344, 1366 (2009); Conner Bros. Contr. Co., 550 F.3d at 1379; McCarthy HITT, 

11 
24-1 BCA ¶ 38,483 at 187,041.  Applying this standard, we conclude that the Navy’s 
actions, taken in its sovereign capacity to respond to the COVID-19 pandemic, were 
public and general in nature and rendered both access to the AUTEC worksite and 
performance of the contract as originally planned impracticable.  Accordingly, the 
sovereign acts defense applies to preclude recovery for costs associated with onsite 
performance and the replanning effort.  However, we deny summary judgment as 
to preconstruction and personnel inefficiency costs, which were incurred offsite and 
for which the Navy has not established that performance was rendered impracticable 
by the government’s sovereign actions. 
 
II.  The Officer-in-Charge’s order to close AUTEC to non-essential personnel was a 
sovereign act that rendered some aspects of performance impossible. 
 
A.  The sovereign acts doctrine bars recovery for costs associated with the 
onsite work. 
 
The parties do not dispute that the government’s decision to limit base access 
at AUTEC to mission-essential personnel in response to the COVID-19 pandemic was 
a public and general act.  In fact, Haskell expressly “concedes that the AUTEC 
Commander’s . . . initial decision to close AUTEC effective March 20, 2020, 
to minimize the potential threat of the coronavirus may have been a sovereign act that 
applied to construction activities that would have had to physically happen on the 
AUTEC Base” (app. opp’n at 7 (internal quotations omitted); id. at 9 (describing the 
closure of AUTEC to non-essential personnel as “understandable and makes good 
sense”), 21-22 (acknowledging that “the Government’s action to close AUTEC may 
have initially been categorized as a sovereign act”); see also compl. ¶¶ 74, 136 (stating 
that the Officer-in-Charge had “had probable cause to initially close the base during 
the first few weeks of the COVID-19 pandemic”)). 
 
In this regard, the AUTEC Officer-in-Charge, acting in a sovereign capacity, 
exercised his executive authority to protect public health by closing the base to all  
non-essential personnel (SOF ¶¶ 8-9).  There is no allegation that the closure was 
targeted at Haskell or motivated by any effort to gain a financial advantage under this 
contract—two important factors in Conner Brothers, 550 F.3d at 1374-75.  Thus, we 
conclude the closure of AUTEC was public and general in nature.  Id., 550 F.3d 
at 1374-75; J.E. Dunn Constr. Co., ASBCA No. 62936, 22-1 BCA ¶ 38,123 
at 185,192; APTIM Fed. Servs., ASBCA No. 62982, 22-1 BCA ¶ 38,127 at 185,219. 
 
The parties also agree that these sovereign measures rendered onsite 
performance impossible (gov’t mot. at 29; app. opp’n at 11 (acknowledging that 
Haskell was “denied access to the AUTEC Base by the Commander”), 7 (claiming that 
the government “prevent[ed] access to the site for 401 days”), 55 (stating “Appellant 
admits they were denied access to the Base by the Commander”), 2 (asserting that the 

12 
only inquiry for the Board to consider is whether offsite work was impossible, thereby 
conceding that onsite work was not possible); compl. ¶ 29 (“The Base commander 
closed AUTEC for an unreasonable amount of time, denying Haskell access to the 
PROJECT worksite.”)). 
 
As stated above, the task order here is a fixed-price contract, under which the 
contractor assumes “maximum risk and full responsibility for all costs and resulting 
profit or loss.”  FAR 16.202-1; APTIM Fed. Servs., 22-1 BCA ¶ 38,127 at 185,219 
(citing Lakeshore Eng’g Servs. v. United States, 748 F.3d 1341, 1347 (Fed. Cir. 
2014)).  We note that Haskell does not allege, nor does the record support, that the 
contract shifted the risk of increased costs resulting from the COVID-19 pandemic 
to the government.  To the contrary, the task order included the provision titled 
“Anticipated Restricted Delays,” which instructed the contractor to anticipate up 
to five lost workdays per year due to restricted site access (SOF ¶ 5).  In the event of 
delays exceeding that threshold, the contract specified that the contracting officer 
would issue a no-cost modification (id.).  In addition, the task order incorporated 
FAR 52.249-10 (SOF ¶ 2), which excuses delays caused by sovereign acts of the 
government, epidemics, and quarantine restrictions.  FAR 52.249-10(b).  While this 
clause may entitle a contractor to additional time for performance, it does not authorize 
additional compensation.  Id.; Phylway Constr., LLC, ASBCA No. 62961, 22-1 BCA 
¶ 38,218 at 185,620.  Accordingly, the government’s closure of AUTEC was a 
sovereign act that rendered onsite performance impossible, and the contract did not 
reallocate to the government the risk of increased costs arising from such sovereign 
actions. 
 
B.  The sovereign acts doctrine bars recovery for the costs of replanning 
construction under new conditions following AUTEC’s reopening. 
 
Similarly, Haskell’s claim for costs incurred after the base reopening to replan the 
project under new conditions is, for the most part, barred by the sovereign acts doctrine.  
Our ability to assess the full extent of this bar is limited by Haskell’s imprecise use of 
terms such as “new replanning effort,” “new terms and conditions,” and “new contract 
requirements” (see e.g., app. opp’n at 58; R4, tab 20 at GOV1694-96, 1701, 1713).  
Based on our review of the record, we believe that the claimed impacts fall into four 
distinct categories.  We address each in turn. 
 
1.  Replanning Costs Following the Year-Long Delay 
 
The first category consists of costs incurred in replanning contract performance 
after a year-long delay in accessing the site (see e.g., app. opp’n at 58; R4, tab 20 
at GOV1701, GOV1714; app. supp. R4, tab 77 (Martin aff.) ¶¶ 68-69 (“Replanning 
activities addressed the changes in work conditions due to the delay from the base 
closure.”), ¶ 76 (“The amounts in Haskell’s Claim are for new activities that were 

13 
required due to the delay of contract performance.”).  These are not “new” 
requirements imposed by the government.  Rather, they are the natural and foreseeable 
consequences of the government’s sovereign acts that restricted access to the worksite.  
Haskell’s fixed-price contract places the risk of such costs on the contractor.  
Accordingly, the Board grants summary judgment as to these replanning costs. 
 
2.  Compliance with Revised Base Access Policies 
 
The second category concerns the costs of complying with new base access 
protocols implemented in response to the COVID-19 pandemic, such as bubble-to-
bubble plans, quarantine requirements, or other ROM requirements (see e.g., R4, 
tab 20 at GOV1692-93, GOV1701, GOV1715; Martin aff. ¶ 69).  These types of base 
access restrictions, even if burdensome, reflect the exercise of sovereign authority to 
protect health and national security, and they do not give rise to an entitlement to 
additional compensation.  The Board has repeatedly held that contractors may not 
recover additional compensation for costs stemming from such measures.  APTIM 
Fed. Servs.., 22-1 BCA ¶ 38,127 at 185,217-18; J.E. Dunn Constr. Co., 22-1 BCA 
¶ 38,123 at 185,192; M.E.S., Inc., ASBCA No. 56149 et al., 12-1 BCA ¶ 34,958 
at 171,856; Garco Constr., Inc., ASBCA Nos. 57796, 57888, 14-1 BCA ¶ 35,512 
at 174,073; Troy Eagle Grp., ASBCA No. 56447, 13-1 BCA ¶ 35,258 at 173,061-62. 
 
3.  Logistical Bottleneck Costs 
 
The third category includes costs Haskell attributes to coordination conflicts 
that allegedly occurred after AUTEC reopened, when multiple projects resumed 
concurrently.  In its claim, Haskell asserts that the Navy’s decision to restart all 
projects at once disrupted the previously staggered sequencing of construction 
contracts, resulting in a logistical bottleneck and inefficiencies.  (R4, tab 20 
at GOV1696-97, GOV1703, GOV1714)  Neither party adequately addresses this 
category of costs, and the record is insufficiently developed for us to resolve it on 
summary judgment.  Accordingly, the Board denies summary judgment as to claims 
for costs stemming for the alleged logistical inefficiencies. 
 
4.  Scope Changes or Design Modifications 
 
Finally, one possible interpretation of “new” requirements could be that the 
Navy changed the scope of work—such as altering the design (Martin aff. ¶ 69).  
If such claims exist, our ruling here does not dispose of them.  They are not addressed 
in the briefing and would need to be adjudicated on a separate evidentiary basis. 
 
In short, with respect to the closure of the base and the subsequent replanning 
under new conditions, we conclude that the facts of this appeal closely mirror those 
addressed in our prior COVID-related decisions, APTIM Fed. Servs., 22-1 BCA 

14 
¶ 38,127, and J.E. Dunn Constr. Co., 22-1 BCA ¶ 38,123.  In each case, the Board 
found that base closure and access restrictions imposed in response to the pandemic 
were sovereign acts that precluded contractor recovery for associated costs.  
The government-imposed limitations were public and general in nature, not targeted 
at any specific contractor, and rendered government performance impracticable given 
the overriding public health and operational constraints.  The same holds true here. 
 
C.  The Board will not second-guess the sovereign’s judgment on the duration 
of the base closure. 
 
 Although Haskell concedes that the Officer-in-Charge’s initial decision to close 
AUTEC was a sovereign act, it argues that the duration of the closure was 
unreasonably long (app opp’n at 2, 7).  In support, Haskell alleges that other Navy 
bases resumed construction work much earlier (app. opp’n at 2, 9-11; compl. ¶¶ 76, 
97; app. supp. R4, tabs 73-76)).  It contends that the extended closure of AUTEC was 
unreasonable, arbitrary, and capricious (id. at 11). 
 
 As an initial matter, Haskell’s comparison to other Navy bases is unpersuasive.  
It makes no effort to allege—let alone support with any evidence—that AUTEC was 
similarly situated during the pandemic to the other installations referenced (see app. 
opp’n at 2, 9-10; Martin aff. ¶¶ 71-74; R4, tab 20 at GOV1693 n.2, GOV1694; 
compl. ¶¶ 76, 97).  To the contrary, in its own claim, Haskell emphasizes AUTEC’s 
remoteness and the “unique and special planning” associated with performing 
construction work on a secure, foreign-located range (R4, tab 20 at GOV1695).  
The government’s pandemic response necessarily varied across installations, 
depending on local health conditions, host-nation restrictions, mission sensitivity, and 
logistical realities.  Haskell has offered no evidence that the decision to keep AUTEC 
closed for an extended period was arbitrary in light of those circumstances.
5 
 
 More fundamentally, we decline to second-guess the sovereign’s discretionary 
judgment concerning base access during a global public health emergency.  It is  
well-established that decisions regarding access to military installations rest with the 
installation commander, not the contracting officer or this Board.  See Cafeteria & Rest. 
Workers Union v. McElroy, 367 U.S. 886, 893-94 (1961); Targe Logistics Servs., Co., 
ASBCA No. 63282, 24-1 BCA ¶ 38,653 at 187,895 (citing Sang Kash Co., ASBCA 
No. 60532, 19-T1 BCA ¶ 37,373 at 181,703); Garco Constr., 14-1 BCA ¶ 35,512 
at 174,073; Gargoyles, Inc., ASBCA No. 57515, 13 BCA ¶ 35,330 at 173,415-16.  
Courts and boards have consistently recognized that base commanders have broad 
authority to exclude individuals or contractors from military installations when 
necessary to maintain good order, discipline, or security, and that such decisions are not 
 
5 On this point, Haskell provides no affidavit or other evidence establishing a dispute 
of material fact. 

15 
subject to contract challenge unless there is a substantiated showing that the government 
acted to nullify contractual rights or gain an economic advantage.  Sang Kash Co., 
ASBCA No. 60532, 19-1 BCA ¶ 37,373 at 181,703 (citing Conner Bros. Constr. Co., 
ASBCA No. 54109, 07-2 BCA ¶ 33,703 at 166,786, aff’d, 550 F.3d 1368 (Fed. Cir. 
2008); Emerald Town Grp. Logistic Servs., 17-1 BCA ¶ 36,709 at 178,753-54). 
 
 Here, Haskell has made no such showing.
6  Its claim that AUTEC remained 
closed longer than other Navy bases is legally immaterial, particularly given the base’s 
unique operational and geopolitical circumstances.  The Board declines to scrutinize 
the sovereign’s exercise of discretion in responding to a public health crisis.  Haskell’s 
challenge to the duration of the closure therefore fails to undermine the Navy’s 
sovereign acts defense. 
 
 Before turning to th e costs that survive summary judgment, we address three 
additional arguments raised by Haskell, each of which seeks—either directly or 
indirectly—to challenge or circumscribe the Officer-in-Charge’s sovereign authority 
to keep AUTEC closed. These arguments fare no better. 
 
1.  Alleged Lack of Probable Cause to Keep AUTEC Closed 
 
 Haskell asserts that the Officer-in-Charge lacked probable cause to maintain the 
closure of AUTEC because the Bahamian Government lifted its COVID-19 
restrictions in June 2020 and informed AUTEC that it “may continue operations as 
normal” (app. opp’n at 2, 10, 28, 31 (citing app. supp. R4, tab 6.8)).  Although there 
appears to be some factual dispute over the scope and effect of the Bahamian 
Government’s communication (compare id. at 36, 41, with gov’t reply at 25-26), 
we assume for purposes of this motion that Haskell’s characterization is accurate.  
Even so, this assertion does not alter our analysis.  The decision to keep AUTEC 
closed after June 2020 was made by the Officer-in-Charge in his sovereign capacity 
and falls squarely within his discretionary authority to safeguard mission readiness and 
public health.  As discussed above, the Board does not second-guess the sovereign’s 
judgment when exercising such discretion, particularly in the midst of an evolving 
global pandemic. 
 
 
6 In a footnote in its claim, Haskell briefly contends that other contractors had 
personnel onsite at AUTEC and were performing contracts during the closure 
(R4, tab 20 at GOV1693 n.2).  In its opposition to the Navy’s motion, however, 
Haskell fails to identify or submit any evidence that would establish a genuine 
dispute of material fact.  Accordingly, the allegation provides no basis to deny 
summary judgment. 

16 
2.  Reasonableness of Government Protocols 
 
 Relatedly, Haskell argues that the government could have implemented less 
burdensome or more reasonable protocols (app. opp’n at 23, 31).  However, we have 
expressly rejected the notion that the validity of a sovereign act depends on whether 
the government could have chosen a less restrictive or more contractor-friendly 
alternative.  Conner Bros. Constr. Co., ASBCA No. 54109, 07-2 BCA ¶ 33,703 
at 166,880 (quoting Klamath Irrigation Dist. v. United States, 75 Fed. Cl. 677, 688 
(2007)); see also Walter Dawgie Ski Corp., 30 Fed. Cl. 115, 133 (1993).  The relevant 
inquiry is not whether the government’s response was optimal, but whether it acted in 
its sovereign capacity to achieve a public and general objective.
7 
 
3.  Implied Duty of Good Faith and Fair Dealing 
 
 Finally, Haskell asserts that NAVFAC breached the implied duty of good faith 
and fair dealing by failing to request the Officer-in-Charge to reopen AUTEC, 
minimize the duration or extent of the base closure, or otherwise secure access to the 
site so that Haskell could continue construction (app. opp’n at 5-6).  In essence, 
Haskell argues that NAVFAC had an affirmative obligation to advocate on its behalf 
with the sovereign decisionmaker.  We reject this argument. 
 
 While every contract includes an implied duty of good faith and fair dealing, 
this duty does not operate to expand a party’s contractual obligations beyond those 
expressly agreed upon.  Metcalf Constr. Co. v. United States, 742 F.3d 984, 991 (Fed. 
Cir. 2014)).  Haskell does not direct our attention to any contractual provision 
requiring NAVFAC to intervene in sovereign decisions made by the Officer-in-Charge 
regarding base access.  Indeed, the sovereign acts doctrine rests, in part, on the 
recognition that the government wears two hats—contractor and sovereign—and 
cannot be held liable for failing to control sovereign acts that are beyond the scope 
of its contractual role.  NAVFAC had no contractual or legal authority to override or 
 
7 Haskell mischaracterizes our decision in J.E. Dunn Constr. Co., 22-1 BCA ¶ 38,123 
(app. opp’n at 33-34).  Contrary to Haskell’s contentions, the Board did not 
“require[] [the government] to adopt the least restrictive quarantine protocols,” 
nor did we “express[] [our] desire for the Government to use the least restrictive 
and least costly quarantine protocols” (id.).  Rather, the Board concluded that 
the issue was moot because appellant would have suffered the same damages 
under less restrictive protocols.  J.E. Dunn Constr. Co., 22-1 BCA ¶ 38,123 
at 185,192-93. 

17 
influence the base commander’s sovereign judgment about when or how to reopen 
AUTEC.8 
 
 In sum, we conclude that the government’s closure of AUTEC and related base 
access restrictions were sovereign acts that rendered certain aspects of performance 
impossible and do not give rise to contractor entitlement.  As a final observation, 
Haskell’s 60-page opposition brief was difficult to follow, marked by extensive 
repetition and disorganized presentation.  For example, the same argument—that the 
government was required to adopt the least restrictive means—was repeated nearly 
verbatim at least a dozen times (app. opp’n at 23-24, 26-27, 31, 33-34, 36, 40-41, 44, 
49).  While we have not addressed every argument or citation individually, we have 
reviewed and considered all of them.  To the extent not discussed, we conclude they 
do not provide a basis to deny the Navy’s motion with respect to the costs associated 
with the base closure or replanning under new conditions. 
 
III.  Disputed facts preclude summary judgment on costs associated with offsite, 
preconstruction work that did not require base access. 
 
We now turn to the remaining portions of Haskell’s claim that are not barred by 
the sovereign acts doctrine.  We deny the Navy’s motion for summary judgment with 
respect to Haskell’s claimed costs for offsite, preconstruction work, including the 
alleged “personnel inefficiency” costs.  While the Navy contends that all claimed 
damages stem from the Officer-in-Charge’s sovereign act of closing AUTEC (gov’t 
mot. at 38), Haskell has raised genuine disputes of material fact as to whether certain 
offsite activities could have continued during the closure. 
 
Haskell asserts that numerous preconstruction tasks—such as long-lead 
procurement, finalizing subcontracts, preparing submittals, and mobilizing materials 
for shipment—did not require physical access to AUTEC and could have proceeded 
safely during the base closure (app. opp’n at 2-4).  These tasks, Haskell argues, were 
expressly required under the contract and not inherently site-dependent (id. at 2-3). 
 
Despite requesting authorization to perform this offsite work, Haskell claims 
NAVFAC refused to issue a limited Notice to Proceed or partial work order (id. at 4, 
30).  According to Haskell, this refusal lacked a legal, contractual, or public health 
 
8 Haskell raises other allegations of breaches of the duty of good faith and fair dealing 
relating to NAVFAC’s failure to issue a Notice to Proceed with offsite 
preconstruction work (app. opp’n at 5-6, 21).  As explained in the subsequent 
section, we do not grant summary judgment with respect to these costs.  
Thus, we need not determine, at this time, whether the Navy has breached any 
alleged duty in this regard. 

18 
justification and constituted an unreasonable and compensable suspension of work that 
exacerbated the delay and prevented mitigation efforts (id. at 12-13, 33, 40). 
 
Haskell supports its position with an affidavit from Haskell’s Director of 
Project Development, Jerry Martin.  Mr. Martin submitted a comprehensive, 
77-paragraph affidavit that is fact-laden, well-supported with citations to the 
contemporaneous record, and compelling in its detail.  Mr. Martin avers that 
preconstruction work continued despite the base closure and that NAVFAC was kept 
apprised of these efforts (Martin aff. ¶¶ 4, 12, 20).  He explains that such work did not 
require access to AUTEC (id. ¶¶ 12, 16-17, 29, 39, 66).  He further explains that 
NAVFAC’s refusal to authorize certain offsite tasks and pay for work completed hindered 
efficient progress and increased project costs (id. ¶¶ 22, 40, 43-46, 50, 51-57, 66). 
 
We conclude that Haskell has raised genuine disputes of material fact with 
respect to these costs.  Without weighing the evidence, we cannot determine, on the 
record before us, which preconstruction tasks could have reasonably proceeded offsite; 
whether a Notice to Proceed was required to authorize those offsite preconstruction 
tasks; whether NAVFAC’s refusal to authorize such tasks was justified; and whether 
the sovereign acts doctrine renders performance of those tasks impossible.  As we have 
stated, the sovereign acts defense requires a showing of impossibility, and at this stage, 
the Navy has not met its burden to demonstrate that its sovereign actions precluded 
performance of contract obligations that did not depend on base access.  These 
unresolved issues preclude summary judgment on Haskell’s claim for offsite, 
preconstruction costs, to include the personnel inefficiency costs.  McCarthy HITT, 
24-1 BCA ¶ 38,483 at 187,042. 
 
CONCLUSION 
 
For the reasons discussed above, we grant the Navy’s motion for summary 
judgment in part and deny it in part.  We conclude that the Officer-in-Charge’s 
decision to close AUTEC in response to the COVID-19 pandemic was a sovereign 
act.  Under well-settled law, the duration of that closure is not subject to challenge 
absent a substantiated showing that the decision was intended to nullify contractual 
rights or confer an economic advantage on the government.  Haskell has raised no 
such allegations.  Accordingly, the sovereign acts doctrine bars recovery for costs 
allegedly incurred due to the base closure, which includes most, but not all, costs 
associated with replanning the effort.  The same conclusion applies to any costs 
arising from post-reopening access restrictions or other public health measures 
implemented in the sovereign’s capacity. 
 
 We deny the Navy’s motion with respect to Haskell’s claim for costs associated 
with offsite preconstruction activities.  The current record reflects that some of this 
work could have proceeded—and in some instances did proceed—without requiring 

19 
access to AUTEC.  The Navy has not met its burden to establish that all offsite work 
was rendered impossible by the base closure.  Factual development is required to 
determine which activities were feasible and whether the sovereign acts doctrine bars 
recovery for related costs. Summary judgment is therefore inappropriate on this aspect 
of the claim.  Finally, we also deny summary judgment with respect to the logistical 
bottleneck costs because we find the briefing and record insufficiently developed for 
us to grant summary judgment. 
 
 Dated:  October 1, 2025 
 
 
 
 
 
 
 
 
 
 
 
ELIZABETH WITWER 
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 
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 Nos. 63332, 63586,
 Appeals of 
The Haskell Company, rendered in conformance with the Board’s Charter. 
 
 Dated:  October 1, 2025 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals