ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeals of - )  
 )  
Goodloe Marine, Inc. ) ASBCA Nos. 62106, 62446 
 )   
Under Contract No. W9126G-18-C-0071 )  
    
APPEARANCES FOR THE APPELLANT: Michael H. Payne, Esq. 
    Cohen Seglias Pallas Greenhall & Furman PC 
    Philadelphia, PA 
 
Casey J. McKinnon, Esq. 
  Cohen Seglias Pallas Greenhall & Furman PC 
  Washington, DC  
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Clark Bartee, Esq. 
  Engineer Trial Attorney 
  U.S. Army Engineer District, Galveston 
 
OPINION BY ADMINISTRATIVE JUDGE MELNICK GRANTING  
THE GOVERNMENT’S MOTION FOR SUMMARY JUDGMENT 
 
Appellant, Goodloe Marine, Inc., of Wimauma, Florida (Goodloe), was awarded 
a contract to perform pipeline dredging by the United States Army Corps of Engineers 
(Corps or government).  The government eventually terminated Goodloe for default for 
failing to dredge at the required production rate.  Goodloe appeals from the default, as 
well as from a denial by the government of its claim for additional time it alleges 
should be recognized due to weather delays.  The government has moved for summary 
judgment, which we grant. 
 
 STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
 
I. Undisputed Facts  
 
The following facts have not been shown to be in genuine dispute.   
 
1.  On September 29, 2018, the government awarded the firm fixed-price 
contract identified above to Goodloe.  The contract was for pipeline dredging of the 
Gulf Intracoastal Waterway around Galveston, Texas.  The contract estimated that 
630,000 cubic yards of material would be removed.  (R4, tab 1 at 4-10, tab 2)  Among 

2 
 
the standard Federal Acquisition Regulation (FAR) clauses incorporated by reference 
was FAR 52.249-10, DEFAULT (FIXED-PRICE CONSTRUCTION) (APR 1984) 
(R4, tab 1 at 16).  In addition to that provision, the contract contained section 3.1.3, 
entitled “Default Terms.”  It provided that:   
 
Failure of the Contractor to comply with the requirements 
of the Contract will be grounds for a determination, by the 
Contracting Officer, that the Contractor is not prosecuting 
the work with sufficient diligence to ensure completion 
within the time specified in this Contract.  Upon making 
this determination, the Contracting Officer may terminate 
the Contractor’s right to proceed with the work, or 
separable parts of it, in accordance with the default terms 
of the Contract.   
 
(R4, tab 1 at 173)    
 
2.  The contract required Goodloe to begin performing 10 calendar days after 
receiving a notice to proceed and complete performance 130 calendar days later.  The 
government issued the notice to proceed on October 17, 2018, establishing February 24, 
2019, as the contract completion date.  (R4, tab 1 at 8, tab 3)   
 
3.  The contract imposed strict capacity requirements upon Goodloe.  
Section 1.15.2 mandated that “[t]he effective production rate of the dredge plant shall 
not be less than 360,000 cubic yards per month” and “[n]o reduction in the capacity of 
the dredge equipment and attendant plant employed to execute the work is to be made 
except by written direction of the Contracting Officer.”  The capacity would be 
measured from actual performance.  (R4, tab 1 at 133)  Dredging 360,000 cubic yards 
per month (30 days) requires an average of 12,000 cubic yards per day. 
 
4.  To achieve the contract’s requirements, Goodloe informed the government 
during a pre-award survey that it intended to use two dredges.  One was Bettie G and 
the other was Perseverance.  (Gov’t statement of undisputed material facts ¶ 2; app. 
resp. ¶ 2)  Goodloe said that Bettie G’s average production rate ranged between 6,000 
and 8,000 cubic yards per day.  Goodloe stated that Perseverance could achieve 
between 8,000 and 10,000 cubic yards per day.  Goodloe also noted that it had a third 
dredge, Reliable, available to assist if necessary to complete performance on time.  
Goodloe represented that all three dredges were sitting idle at its yard and could be 
moved within days to the project site once it received a notice to proceed.  Goodloe 
confirmed that it understood that the minimum amount of material that had to be 
dredged in a month was 360,000 cubic yards.  It represented that Bettie G would start 
dredging about 21 days after the notice to proceed and Perseverance would arrive about 

3 
 
two to three weeks later and dredge concurrently with Bettie G at a rate that would 
achieve the minimum production.  (R4, tab 349 at 1409, 1411, tab 350 at 1420) 
 
5.  The record contains a series of forms purporting to be Goodloe’s Contractor 
Quality Control (QCR) Reports.  However, no author is identified and their certification 
lines are blank.  Beginning with the form dated November 6, 2018, a series of them 
indicate that Goodloe encountered weather delays on a total of 30 different days between 
October 18 and December 29, 2018.  Many of the forms attached calendars for October, 
November, and December 2018 that also supposedly show the reported adverse weather.  
The calendars appear to be from an internet weather application (“app”), but Goodloe 
does not identify the source.  There is also no indication of the geographical location they 
purport to describe, except the December calendar is marked Bay City, Texas.  We 
judicially notice that location is over 70 miles on a straight line from Galveston.
1  (R4, 
tabs 196, 198, 200, 202, 204, 212, 214, 227, 237, 239, 241, 243, 257, 275, 277, 281, 283, 
293, 295, 297, 301, 303, 305, 307)  
 
6.  Goodloe began dredging on December 17, 2018, with Bettie G. (R4, 
tab 220; gov’t statement of undisputed material facts ¶ 15; app. resp. ¶ 15; app. supp. 
R4, tab 30 (Native) at 1391 (production rate tab)).   
 
7.  On January 10, 2019, the government sent a letter of concern to Goodloe’s 
president in Florida regarding its ability to timely complete the contract.  The 
government indicated that Goodloe’s average dredging rate of 2,011 cubic yards per 
day had placed it three weeks behind schedule and was unacceptable.  The government 
directed Goodloe to submit an updated schedule by January 15, 2019.  (R4, tab 170) 
 
8.  Goodloe’s president, Ms. Bettie Goodloe, responded to the government on 
January 15, 2019.  She indicated that Goodloe had experienced “weather days” and 
“vendor delays” that delayed the arrival of Bettie G and Perseverance to the site.  She 
stated that Goodloe had provided documentation of the weather, and expressed the 
belief that the conditions Goodloe encountered justified a later completion date.  She 
also represented that Perseverance would arrive on or about January 22, 2019.  (R4, 
tab 161) 
 
9.  On February 11, 2019, the contracting officer issued a show cause notice to 
Goodloe notifying it that the government was considering terminating the contract for 
default.  The government observed that Bettie G did not start dredging until 
December 17, 2018, 65 days after the notice to proceed.  Perseverance did not arrive 
until January 23 and experienced operational problems.  Goodloe’s invoice for 
December 15, 2018 through January 23, 2019, showed less than 35,000 cubic yards 
removed, well below the contractual requirement.  (R4, tab 101)   
                                              
1 See FED. R. EVID. 201.   

4 
 
10.  Goodloe responded to the show cause letter on February 15, 2019.  Goodloe 
stated that it had been delayed by weather since the notice to proceed.  It characterized 
the amount of rainfall during the previous several months as unusual, saying anyone who 
lives or works in the area knows that.  It explained that the conditions had hampered its 
assembly and placement of pipelines, emphasizing its delays commenced before dredging 
began.  Goodloe also represented that other Corps projects in the area had been delayed 
by weather and that the government’s survey party had declined to work on Goodloe’s 
project due to weather on two occasions.  It also stated that it had recently been delayed 
for two days by fog.  Goodloe did not deny the rate of production indicated by the 
contracting officer.  (R4, tab 94)     
 
11.  Goodloe attached to its show cause response more weather app calendars for 
October 2018 through January 2019.  This second set appears to be from The Weather 
Company and describes the weather differently for many of the days than the calendars 
Goodloe submitted previously with the purported QCR reports (R4, tabs 94, 237).  As 
before, Goodloe did not identify the geographical location the calendars are meant to 
describe, other than to vaguely declare they are “for the area closest to our work.”  
Goodloe claimed it was delayed by weather for 40 days and by an additional lock delay 
caused by the Corps of one and a half days.  (R4, tab 94 at 653-56)  
 
12.  Goodloe also provided three purported news articles with its show cause 
response describing another project.  The first two look to have come from a website 
called Dredgewire and are dated prior to the award of this contract.  One stated that the 
Corps expected to dredge the San Jacinto River’s West Fork the week of September 17, 
2018, weather permitting.  The article implied that weather had previously delayed 
commencement of the project.  (R4, tab 94 at 658)  Another reported that the project 
actually began September 21, repeating the reference to prior weather delays (id. at 660).  
The third “article,” dated November 5, 2018, is just text with no indication that it was 
published anywhere.  It repeated that the San Jacinto river project began on September 21 
after experiencing the weather delays.  (Id. at 662) 
 
13.  Goodloe’s show cause response also admitted that Perseverance was 
delayed arriving on site because of continuing dry dock repairs that Goodloe started 
after the dredge was sunk by Hurricane Harvey.  We judicially notice that storm struck 
Texas and Louisiana in August 2017, over a year before this contract was awarded.  
Goodloe blamed its insurance company and a hydraulic expert for overlooking damage 
requiring significant time to repair.  (R4, tab 94) 
 
14.  Goodloe continued to dredge after the February 24, 2019 period of 
performance expired.  Perseverance began dredging on either March 6 or 7, 2019.  
(R4, tab 52; app. supp. R4, tab 30 (Native) at 1391 (production rate tab))   
 

5 
 
15.  In late March 2019, Goodloe issued a payment invoice to the government 
for work performed between February 21 and March 19, 2019.  According to the 
government payment estimate (Pay Estimate No. 5) associated with that invoice, 
Goodloe had earned $1,494,873.50 of the $3,782,500 contract price, or 39.5%.  (App. 
supp. R4, tab 8)   
 
16.  On March 28, 2019, the contracting officer terminated the contract for default 
on the ground that Goodloe had failed to perform in accordance with the contract 
schedule at a production rate of 360,000 cubic yards per month.  He stated that work was 
39.5% complete.  (R4, tab 23)  In determining whether to terminate, the contracting 
officer considered the factors contained in FAR 49.402-3(f) and documented that review 
in a Termination for Default checklist signed March 28, 2019 (R4, tab 25).  The 
checklist noted the work was essential, that Goodloe was given every opportunity to 
complete it, but that it had not maintained the required production rate.  The checklist 
observed that Goodloe dredged less than 35,000 cubic yards between December 15, 
2018 and January 23, 2019.  Regarding the urgency of the services and the time required 
to obtain them from another source, the checklist stated that the channel to be dredged is 
shallow and requires timely dredging for navigation.  The services would be sought in an 
upcoming project to ensure completion during the 2019 fiscal year.  An earlier draft of 
the checklist from March 22, 2019, indicated that no market research had been 
performed.  (Id.; app. supp. R4, tab 7 at 47)  
 
17.  Goodloe has appealed the termination, which has been docketed as ASBCA 
No. 62106.   
 
18.  After terminating the contract, the government performed a survey that 
showed Goodloe had dredged a total of 268,996 cubic yards of material, which is 43% 
of the 630,000 cubic yards the contract estimated would be removed (R4, tab 1 at 10; 
app. supp. R4, tab 29 at 1385).  The survey indicated that between March 20 and 
March 28, 2019, the date of termination, Goodloe dredged 45,000 cubic yards (app. 
supp. R4, tab 29 at 1385).  Thus, at the time of termination Goodloe was still not 
achieving a rate equal to 360,000 cubic yards per month.
2  An April 2019 government 
engineer spreadsheet states that Bettie G’s production was 20,388 cubic yards in 
December 2018; 61,462 cubic yards in January 2019; 49,012 in February; and 
94,184 in March.  Perseverance only dredged in March 2019, producing 60,233 cubic 
yards.
3  Goodloe’s average monthly production with combined dredges was 128,452 
cubic yards, and its highest monthly production was 154,417.  The report presented 
three possible scenarios had performance continued.  The most reasonable scenario 
                                              
2 Dividing 8 days into 45,000 cubic yards equals 5,625 cubic yards.  As already noted, 
360,000 cubic yards per month requires an average of 12,000 cubic yards per 
day. 
3 These numbers add up to 285,279 cubic yards. 

6 
 
was based upon Goodloe’s average production using two dredges, with Goodloe 
dredging 297,146 cubic yards over 71 additional days.  In the best case scenario for 
Goodloe, it would maintain its highest reported production rates on both dredges and 
require 60 more days to dredge the same amount.  Under the least reasonable scenario, 
Goodloe would only dredge 181,457 cubic yards in 44 days.  This last scenario was 
not considered very reasonable because of high shoaling rates and the likely 
requirement that Goodloe would have to re-sweep the area.  (App. supp. R4, tab 30 
(Native) at 1391 (survey tab)) 
 
19.  The parties engaged in some communications following the termination.  An 
April 10, 2019 letter from Goodloe’s surety to the contracting officer claimed that at the 
time of termination the project was approximately 30 days from completion (app. supp. 
R4, tab 12).  A June 5, 2019 letter to the contracting officer from the surety’s counsel 
sought Goodloe’s reinstatement.  It indicated Goodloe might be able to retain help from 
another contractor and together dredge an average of 6,378.2 cubic yards per day, or 
191,346 per month.  This is only slightly more than half of the 360,000 cubic yards the 
contract required.  Retreating from the surety’s April prediction that the job could be 
completed in 30 days, the letter said that at this rate the project would finish in 48 days, 
implying that approximately 306,000 cubic yards remained to be dredged.  The surety 
provided no details about the capabilities of the second contractor’s dredge and 
conditioned its participation upon scheduling.  (App. supp. R4, tab 22 at 180)  The 
letter’s next paragraph continued that even if the second contractor did not participate, 
Goodloe could proceed using only Perseverance and achieve an average rate of 3,400 
cubic yards per day, or 102,000 per month.  This is obviously far below Goodloe’s prior 
representation that Perseverance could achieve between 8,000 and 10,000 cubic yards 
per day, and is less than a third of the contract’s 360,000 cubic yard monthly requirement.  
Anyway, where the prior paragraph had implied that 306,000 cubic yards remained to be 
dredged, here that number abruptly changed to 198,000 cubic yards.  The letter claimed 
that the job could be completed in 74 days, including mobilization and demobilization.
4  
(Id.) 
 
20.  The government concluded that the surety’s proposal was not in the 
government’s best interest.  It noted the uncertainty of the surety’s projected completion 
times ranging between 30, 48, and 74 days.  (App. supp. R4, tab 33 at 1401) 
 
21.  On December 5, 2019, the contracting officer received a claim from 
Goodloe asserting that it had experienced weather delays performing the contract, 
entitling it to a time extension of 41.5 days (R4, tabs 6, 12). 
 
                                              
4 According to the letter, 240,000 remaining cubic yards “was discussed” by someone.  
It says survey information supplied to the surety by Goodloe “suggests that the 
number is approximately 198,000.” 

7 
 
22.  A February 2020 government engineer report notes that there were several 
days when weather delayed government acceptance of surveys, which then delayed 
Goodloe’s advancement to the next dredging section (app. supp. R4, tab 24 at 768).   
 
23.  On March 19, 2020, the contracting officer denied Goodloe’s claim for a 
time extension (R4, tab 6).  Goodloe has appealed that decision which was docketed as 
ASBCA No. 62446 and consolidated with ASBCA No. 62106. 
 
24.  On September 28, 2020, the government awarded a replacement contract to 
complete the remaining work on the project.  The new contractor mobilized to the site 
in November 2020, with completion required by July 13, 2021.  (App. supp. R4, tab 33 
at 1398-99) 
 
 II. Status of the Proceedings 
 
 Goodloe’s amended complaint in ASBCA No. 62106 alleges that it was 
wrongfully terminated because it experienced delays caused by unforeseeable weather.  
It also maintains that the project was near completion at the time of termination, that 
the government did not properly consider the factors contained in FAR 49.402-3(f), 
and that it failed to consider alternatives to termination.  Alternatively, Goodloe 
essentially contends that for the same reasons the government breached the implied 
covenant of good faith and fair dealing.  Goodloe’s complaint in ASBCA No. 62446 
seeks a time extension of 41.5 days to account for the weather delays.   
 
The government moves for summary judgement, claiming that the undisputed 
facts show that its termination for default was justified and Goodloe’s delay was not 
excusable.  In its effort to defeat summary judgment, Goodloe provided Ms. Goodloe’s 
declaration.  Ms. Goodloe testifies that she was involved with and aware of Goodloe’s 
work.  She states that Goodloe “was inhibited by weather-related delays, which delayed 
the arrival of certain Goodloe equipment and prevented Goodloe from proceeding with 
the work as planned.”  She does not identify the equipment but elaborates that Goodloe 
encountered “rain, high winds, fog and extremely low tides resulting from high winds.”  
Ms. Goodloe also says that the delays were discussed with the government project 
engineer and Goodloe “documented the weather delays in daily reports with supporting 
documentation from weather station data for the relevant dates.”  She adds that 
Goodloe’s quality control reports provided notice to the government of the weather 
delays.  Ms. Goodloe explains that dredging projects are susceptible to delays from 
weather-related issues, including, but not limited to, rain, wind, fog and high and low 
tides.  (App. resp., ex.)   

8 
 
DECISION 
 
I. Summary Judgments Standards  
 
Summary judgment before the Board is guided by Federal Rule of Civil 
Procedure 56.  Board Rule 7(c)(2).  Under Rule 56, summary judgment should be 
granted when there are no genuine issues of material fact and the moving party is 
entitled to judgment as a matter of law.  Celotex Corp. v. Catrett, 477 U.S. 317, 
322 (1986).  A non-movant seeking to defeat the suggestion that there are no genuine 
issues of material fact may not rest upon its pleadings, but “must set forth specific facts 
showing that there is a genuine issue for trial.”  Anderson v. Liberty Lobby, Inc., 
477 U.S. 242, 248 (1986) (quoting First Nat. Bank of Ariz. v. Cities Serv. Co., 391 U.S. 
253, 288 (1968)).   
 
When ruling upon a summary judgment motion, we must construe the evidence 
in the light most favorable to the non-movant and draw all reasonable inferences in its 
favor.  Dairyland Power Co-op. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994).  
However, summary judgment should be entered “against a party who fails to make a 
showing sufficient to establish the existence of an element essential to that party’s 
case, and on which that party will bear the burden of proof at trial” because “a 
complete failure of proof concerning an essential element of the nonmoving party’s 
case necessarily renders all other facts immaterial.”  Celotex, 477 U.S. at 322-23.  
Thus, the moving party need not offer evidence showing the absence of a genuine 
issue of material fact regarding an issue on which the non-moving party bears the 
burden of proof.  It must only point out to the Board that there is an absence of such 
evidence to shift the burden to the non-movant to offer evidence establishing a genuine 
issue for trial.  Id. at 325; DJ Mfg. Corp. v. United States, 86 F.3d 1130, 1135 (Fed. 
Cir. 1996); Dairyland Power Co-op., 16 F.3d at 1202; Homeland Housewares, LLC v. 
Sorensen Research and Dev. Trust, 581 F. App’x 869, 874 (Fed. Cir. 2014).  
 
II. Goodloe’s Unexcused Default 
 
The government premises its motion for summary judgment upon the fact that 
Goodloe did not meet the requirement that it dredge 360,000 cubic yards per month.  It 
also relies upon Goodloe’s failure to complete the project by the contract’s February 24, 
2019, deadline.  It contends that either of these grounds support sustaining the 
termination.     
 
The contract’s default clause permitted termination if Goodloe did not complete the 
work on time.  FAR 52.249-10(a); see Watts Constructors, LLC, ASBCA Nos. 61518, 
61961, 19-1 BCA ¶ 37,382 at 181,724; see also Truckla Servs., Inc., ASBCA Nos. 57564, 
57752, 17-1 BCA ¶ 36,638 at 178,445 (“Failure to complete the contract work is a prima 
facie basis for a default termination”), aff’d, 730 F. App’x 926 (Fed. Cir. 2018).  Having 

9 
 
shown that Goodloe failed to finish by the contract’s February 24, 2019 deadline, the 
government has established that as a basis for termination (SOF ¶¶ 14, 18).5 
 
Regarding the government’s reliance upon Goodloe’s failure to dredge 360,000 
cubic yards per month, section 3.1.3 of the contract permitted the government to terminate 
for default if Goodloe’s performance did not comply with the contract’s requirements 
(SOF ¶ 1).  The contract expressly stated that the effective production rate of the dredge 
plant was to be no less than 360,000 cubic yards per month and no reduction to the 
capacity of the dredge equipment and attendant plant employed was to be made except by 
written direction of the contracting officer (SOF ¶ 3).  Goodloe commenced dredging on 
December 17, 2018, but only with Bettie G (SOF ¶ 6).  Perseverance did not arrive on site 
until January 23, 2019, and it was not operational until early March (SOF ¶¶ 9, 14, 18).  
Bettie G was incapable of dredging 360,000 cubic yards per month and did not do so for 
the more than two months that it was the only operational dredge on site (SOF ¶¶ 4, 7, 9, 
16, 18).  Accordingly, the government has carried its burden to establish that Goodloe did 
not meet the contract’s requirement for an effective dredge plant production rate of 
360,000 cubic yards per month.
6   
 
Goodloe’s failure to comply with the contract’s requirements does not entirely 
end our inquiry because Goodloe’s right to proceed could not be terminated if it was 
delayed due to unforeseeable causes beyond its control and without its fault or 
negligence.  FAR 52.249-10(b)(1).  One of the express examples of excusable delay 
contained in the default clause is unusually severe weather.  FAR 52.249-10(b)(1)(x).  
Goodloe says that during performance it encountered rain, high wind, fog and 
extremely low tides that delayed its work.  Goodloe bears the burden to show that its 
nonperformance due to unusually severe weather was excusable.  Bell Constr. Co., 
ASBCA No. 23376, 79-2 BCA ¶ 13,908 at 68,272.  To establish a time extension for 
unusually severe weather, Goodloe must:  (1) identify work controlling overall 
completion; (2) show this controlling work was delayed by the weather, and (3) prove 
the weather was unusually severe.  Skip Kirchdorfer, Inc., ASBCA Nos. 40515, 43619, 
00-1 BCA ¶ 30,622 at 151,168; Bell Constr. Co., 79-2 BCA ¶ 13,908 at 68,272-73. 
 
It was not the weather that prevented Goodloe from having a dredge plant 
production capacity of not less than 360,000 cubic yards per month.  The record shows 
                                              
5 It does not matter that the termination notice did not specifically refer to late 
completion as its reason.  The Board sustains a default if justified by the 
circumstances at the time of termination regardless of whether the government 
removed the contractor for another reason.  Empire Energy Mgmt. Sys., Inc. v. 
Roche, 362 F.3d 1343, 1357 (Fed. Cir. 2004) (quoting Kelso v. Kirk Bros. 
Mech. Contractors, Inc., 16 F.3d 1173, 1175 (Fed. Cir. 1994)). 
6 Indeed, even when both dredges were operating at the time of termination, Goodloe 
was still failing to meet the required production rate (SOF ¶ 18).   

10 
 
that Perseverance failed to dredge prior to March of 2019 because it was undergoing 
continuing repairs necessitated by Hurricane Harvey, followed by operational problems 
on site (SOF ¶¶ 9, 13-14, 18).  Perseverance’s delay due to damage caused by a 
hurricane occurring over a year before award is not an excusable weather event.  When 
Goodloe assured the government during the pre-award survey that it would meet the 
360,000 cubic yard requirement using Perseverance, which it also said could travel to the 
project site within days of the notice to proceed, it was in fact proposing a damaged, 
inoperable dredge.  (SOF ¶¶ 4, 13)  Perseverance’s inability to perform was anything but 
unforeseeable.  Furthermore, contractors generally assume the risk of providing the 
necessary equipment to perform and equipment breakdowns do not excuse performance 
failure.7  E.g., Commercial Contractors Equip., Inc., ASBCA No. 52930 et al.,  
03-2 BCA ¶ 32,381 at 160,262-63; Naughton Energy, Inc., ASBCA No. 33044,  
88-2 BCA ¶ 20,800 at 105,073.  Regardless of the weather on site between December of 
2018 and March of 2019, only Bettie G was capable of dredging and it lacked the 
capacity to remove 360,000 cubic yards per month, as required by the contract.  Goodloe 
has not shown a nexus between the weather and its default.  See TRU & Assocs., Inc., 
ASBCA No. 45263, 96-2 BCA ¶ 28,389 at 141,785-86 (finding the default upon a coal 
supply contract not excused for unusually severe weather when the contractor failed to 
show that absent the inclement weather it would have been able to perform); Fox-Sadler 
Co., ASBCA No. 8421, 1963 BCA ¶ 3768 at 18,795 (disregarding evidence of unusually 
severe weather when it was not the cause of late performance). 
 
Even if we were to disregard Perseverance’s failure to provide the necessary 
dredge capacity, the government has pointed to an absence of evidence supporting 
Goodloe’s allegation that the project was excusably delayed for 41.5 days due to 
unusually severe weather.  Because Goodloe would bear the burden of proving that 
excuse at trial, to defeat summary judgment Goodloe must make a showing 
establishing a genuine issue for trial. 
 
“Unusually severe weather must be construed to mean adverse weather which 
at the time of year in which it occurred is unusual for the place in which it occurred.”  
Broome Constr., Inc. v. United States, 492 F.2d 829, 835 (Ct. Cl. 1974).  No matter 
how severe or destructive the weather may have been, if it was not unusual for the 
time and place no relief is justified.  Bigelow, Inc., ASBCA No. 24376, 81-2 BCA  
¶ 15,300 at 75,737; see also Cape Ann Granite Co. v. United States, 100 Ct. Cl. 53,  
72 (1943) (no relief when work was exposed to severe storms but they were not more 
severe than ordinarily encountered); Aulson Roofing, Inc., ASBCA No. 37677,  
91-2 BCA ¶ 23,720 at 118,730 (“Excusable delay will be found only where the 
weather experienced was unusually severe as compared to the past weather at the same 
                                              
7 It is also worth observing that Goodloe represented to the government that Reliable 
was available to assist if necessary (SOF ¶ 4).  Goodloe offers no explanation as 
to why it was not employed in the absence of Perseverance. 

11 
 
location for the same time of year”).  Weather records establish what is normal and 
foreseeable weather.  Skip Kirchdorfer, 00-1 BCA ¶ 30,622 at 151,168.  Excusable 
delays are then determined by comparing the weather experienced to the historic 
weather.  DayDanyon Corp., ASBCA No. 57681, 15-1 BCA ¶ 36,073 at 176,151, 
aff’d, 673 F. App’x 997 (Fed. Cir. 2017).  Merely offering evidence of a number of 
rainy, windy, foggy, or low tide days proves nothing if it is not shown to exceed a 
historical norm.  Assuming Goodloe has made a sufficient showing that it was delayed 
because of severe weather, it has not presented any evidence that it was more severe 
than the norm.
8  It has not provided any evidence of the historic weather for the time 
and place of the project for comparison to what occurred.9  Accordingly, Goodloe has 
not made a sufficient showing to defeat the government’s motion for summary 
judgment upon its claim that its default is excused (or that it is entitled to extra time) 
due to unusually severe weather. 
 
                                              
8 It is questionable whether Goodloe has made a showing that it was delayed for over 
40 days due to weather.  Ms. Goodloe’s declaration does not expressly state that 
she has first-hand knowledge of the weather Goodloe encountered or witnessed 
herself how it impaired Goodloe’s work on any particular day (app. resp., ex.).  
See F
ED. R. CIV. P. 56(c)(4) (requiring that an affidavit or declaration used to 
support or oppose a motion for summary judgment must be made on personal 
knowledge, set out facts that would be admissible in evidence, and show that the 
affiant is competent to testify on the matters stated); Raytheon Co., ASBCA 
No. 61859, 20-1 BCA ¶ 37,630 at 182,688.  The QCR reports are unsigned and 
Goodloe has failed to otherwise identify an author possessing personal knowledge 
of the information they purport to convey.  The first set of Goodloe’s graphical 
weather calendars do not identify their source, and with the exception of the 
December calendar’s mention of a city over 70 miles from the project area, fail to 
identify the place they are describing.  (SOF ¶ 5)  The second set of calendars 
also fail to identify the relevant location (SOF ¶ 11).  Goodloe’s purported 
newspaper articles about a Corps dredging project in the San Jacinto River before 
the award of this contract are irrelevant (SOF ¶ 12).  However, Goodloe has 
presented a 2020 government engineer report observing that weather delayed its 
advancement to new dredging sections for some unspecified number of days 
(SOF ¶ 22). 
9 Goodloe’s assertion in response to the government’s show cause order that anyone who 
lives in the area knows the weather had been unusual is unsupported and conclusory 
and is therefore inadequate to overcome summary judgment (SOF ¶ 10).  Moore 
U.S.A., Inc. v. Standard Register Co., 229 F.3d 1091, 1112 (Fed. Cir. 2000); see 
also Raytheon Co., 20-1 BCA ¶ 37,630 at 182,688. 
 

12 
 
III. The Record Does Not Support Goodloe’s Contention That the 
Termination Was Arbitrary, Capricious, or an Abuse of Discretion 
 
Goodloe next argues that even if it was in default, the government’s motion should 
be denied because it has presented evidence the contracting officer was arbitrary and 
capricious terminating it.  It suggests the government was materially in error believing the 
project was only 39.5 percent complete and relying upon Goodloe’s less than 35,000 cubic 
yards of production between December 15, 2018 and January 23, 2019 (SOF ¶¶ 9, 16).  
It stresses that Goodloe dredged 154,417 cubic yards in March and a total of 268,996 
at the time of termination, implying that should have been enough (SOF ¶ 18).  It also 
contends the government was wrong to conclude that Goodloe would need 74 more days 
to complete the project.
10  Goodloe says the default was an abuse of discretion because 
only a small amount of work remained, the government failed to conduct market research 
into its alternatives if it terminated, and the government’s statements about the urgency of 
the work are contradicted by its actions.  Goodloe argues Darwin Construction Co. v. 
United States, 811 F.2d 593 (Fed. Cir. 1987), supports the conclusion that the totality of 
these facts show bad faith and abuse of discretion by the government. 
 
A default termination can be set aside if the government abuses its broad 
discretion to terminate.  McDonnell Douglas Corp. v. United States, 182 F.3d 1319, 
1326 (Fed. Cir. 1999).  More specifically, default may not be invoked by the 
government as a pretext for reasons unrelated to performance.  Id. at 1329.  To find 
that a default termination reflects an abuse of discretion because it was based upon 
materially erroneous information normally requires bad faith.  This in turn requires a 
showing with convincing clarity of a high probability of personal animus by the 
contracting officer with a specific intent to injure.  Watts Constructors, 19-1 BCA  
¶ 37,382 at 181,728.  Regardless of whether Goodloe’s progress was 39.5, 43, or some 
other percentage, or that it dredged varying amounts of materials in different months, 
it failed to maintain a dredging capacity of 360,000 cubic yards per month and failed 
to complete performance by the contract completion date.  There is nothing erroneous 
about these facts, much less anything about them to indicate animus by the 
government with a specific intent to injure Goodloe.   
 
Goodloe suggests the default was still unsustainable because, had it been 
allowed to continue, it would have consistently dredged 10,000 cubic yards per day 
and finished in 18 days.  Goodloe has not supported that contention and has not shown 
                                              
10 The evidence cited by Goodloe does not support its contention that the government 
concluded it would take Goodloe 74 more days to complete the project.  It shows 
that the government rejected Goodloe’s proposal (made through its surety’s 
counsel) for reinstatement as not being in its best interest because Goodloe’s 
estimated completion time ranged between 30, 48, and 74 days (app. supp. R4, 
tab 33 at 1400-01). 

13 
 
that it ever demonstrated that possibility to the contracting officer.11  In fact, through 
counsel, Goodloe’s surety made very different representations on Goodloe’s behalf 
while seeking its reinstatement.  After abandoning an initial prediction that Goodloe 
could complete the job in 30 days, it informed the contracting officer the work could 
not be finished in less than either 48 or 74 days.  The 48 days were dependent upon the 
uncertain employment of another dredge.  Neither scenario had Goodloe dredging the 
contractually required 360,000 cubic yards per month.  (SOF ¶ 19)  Similarly, the 
government’s post-termination analysis ranged between 44 days under the least 
reasonable scenario and 71 under the most reasonable one (SOF ¶ 18).  The 
contracting officer rejected the surety’s request to reinstate Goodloe, noting the 
uncertainty of its projections (SOF ¶ 20).  Again we see no indication of error by the 
contracting officer regarding the evidence before him and certainly no animus by him 
with a specific intent to injure Goodloe.   
 
Goodloe also objects to the answers the contracting officer recorded for two of 
the factors he was to consider under FAR 49.402-3(f) when deciding whether to 
terminate for default.  Specifically, in response to FAR 49.402-3(f)(3)-(4)’s inquiry 
into the availability of the contract’s services from others, their urgency, and the 
period of time necessary to obtain them, he said the requirement would be included in 
a future project for completion in the 2019 fiscal year.  Goodloe complains that the 
government did not perform any market research that would support these statements 
and it did not compare the time an alternative contractor might take to the time 
Goodloe would need to finish performance. 
 
The nature of the government’s compliance with FAR 49.402-3(f) may aid our 
inquiry into whether the government has abused its discretion terminating the contract, 
but it confers no rights upon Goodloe and the contracting officer’s failure to consider 
one or more of its factors does not dictate disturbing a default termination.  DCX, Inc. 
v. Perry, 79 F.3d 132, 135 (Fed. Cir. 1996).  Goodloe cites no authority stating that the 
contracting officer must perform a market research study to address the relevant 
provisions of FAR 49.402-3(f).  Though the answers given by the contracting officer 
to these questions about the government’s options lacked specifics, that does not show 
the termination was a mere pretext.    
 
Finally, Goodloe contends that Darwin Construction dictates that the totality of 
the evidence presented proves bad faith.  In Darwin, the Board found that the 
                                              
11 The best we can discern is that Goodloe is relying upon a government report 
showing that on March 16, 2019, which was one out of the 23 days that its two 
dredges worked, their combined production exceeded 10,000 cubic yards (app. 
supp. R4, tab 30 (Native) at 1391 (production rate tab).  This one day does not 
evidence that it would have achieved that rate every day into the future, or that 
it would have completed the dredging in 18 days if it had. 

14 
 
contractor was not terminated because it failed to timely complete the project, but 
simply to enable the government to be rid of dealing with it.  That was held to be 
arbitrary and capricious.  The court of appeals affirmed, stressing its conclusion was 
based upon the Board’s finding that the government had used the default as a pretext 
to terminate.  Darwin, 811 F.2d at 596.  The court of appeals has since elaborated that 
the lesson of Darwin and related decisions is that a termination for default unrelated to 
contract performance is arbitrary and capricious and therefore an abuse of discretion.  
McDonnell Douglas Corp., 182 F.3d at 1326.  However, there is no abuse of discretion 
when there is no evidence of bad faith by the contracting officer; there is a reasonable, 
contract-related basis for his decision; he has not exceeded his discretion; and he has 
not violated any applicable statutes or regulations.  Id.; see also Third Coast Fresh 
Distribution, L.L.C., ASBCA No. 59696, 16-1 BCA ¶ 36,340 at 177,194.   
 
We have already confirmed the contract-related basis for Goodloe’s default 
termination.  There is no reason to conclude that it contravenes any statutory or 
regulatory restrictions.  Goodloe’s complaints about weather delays, the time 
remaining to finish, and the absence of market research have been rejected and do not 
establish bad faith or abuse of discretion.  Still, Goodloe suggests it is the victim of the 
contracting officer’s bad faith because it was terminated and replaced by a contractor 
whose services could not be obtained until after Goodloe might have finished the job 
had it been retained.  The undisputed facts belie that contention.  Goodloe represented 
to the government that it would use a dredge that it knew was unavailable to perform 
its contractual obligations, then failed to perform as required without an excuse, 
blaming its deficiencies upon unusual weather without evidence.  Against this 
backdrop, Goodloe’s suggestion that it was an abuse of discretion not to allow it to 
dredge to completion anyway, after the contract completion date expired, and at a rate 
of its own choosing below the contract’s 360,000 cubic yard per month mandate, is 
unfounded. 
 
IV. The Record Does Not Support a Breach of the Covenant of Good Faith 
and Fair Dealing  
 
Goodloe’s alternative theory suggesting the facts amount to a breach of the 
covenant of good faith and fair dealing does not save it.
12  The duty of good faith and 
fair dealing prohibits “interference with or failure to cooperate in the other party’s 
performance.”  LaBatte v. United States, 899 F.3d 1373, 1379 (Fed. Cir. 2018) (quoting 
RESTATEMENT (SECOND) OF CONTRACTS § 205 cmt. d (1981)).  The duty binds each 
party not to act to destroy the reasonable expectations of the other party regarding the 
fruits of the contract.  However, the duty does not expand a party’s obligations beyond 
                                              
12 Goodloe contends that the government’s motion for summary judgment is only a 
partial motion that does not encompass its good faith and fair dealing claim.  
Nothing in the motion restricted its scope. 

15 
 
the contract’s express terms or establish responsibilities inconsistent with the contract’s 
provisions.  Thus, a party must undermine a specific promise to breach the duty.  
Dobyns v. United States, 915 F.3d 733, 739 (Fed. Cir. 2019), cert. denied, 140 S. Ct. 
1106 (2020).  As already explained, the government was contractually entitled to 
terminate Goodloe when it defaulted upon its obligations.  Because none of Goodloe’s 
arguments purporting to excuse its default have merit, or otherwise undercut the 
termination’s validity, there is no basis for concluding the government breached its 
implied obligations by exercising its contractual right to terminate for default. 
 
CONCLUSION 
 
The government’s motion for summary judgment is granted.  The appeals are 
denied. 
  
 Dated:  January 27, 2022 
 
 
 
 
 
 
 
 
 
 
 
MARK A. MELNICK 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
  

16 
 
 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. 62106, 62446, Appeals of 
Goodloe Marine, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  January 27, 2022  
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals