ARMED SERVICES BOARD OF CONTRACT APPEALS 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE PARTIES’  
CROSS-MOTIONS FOR SUMMARY JUDGMENT 
 
Appellant, Odyssey International, Inc., appeals from (1) the May 2019 default 
termination of its construction contract for failure to secure bonding (ASBCA 
No. 62085), (2) the government’s assessment against Odyssey of $1,991,320 in allegedly 
excess reprocurement costs (ASBCA No. 62145), and (3) a related Contractor 
Performance Assessment Reporting System (CPARS) evaluation rating Odyssey’s 
performance “Unsatisfactory” (ASBCA No. 62193).  On January 17, 2020, the 
government filed its first motion for summary judgment in these appeals.  In Odyssey 
International, Inc., ASBCA No. 62085 et al., 20-1 BCA ¶ 37,623 at 182,655, we granted 
that motion in part, and entered summary judgment in favor of the government that 
Odyssey defaulted on the contract by failing to provide to the government the required 
performance and payment bonds.  Familiarity with that opinion is presumed.  The parties 
now request summary judgment regarding whether:  (1) Odyssey’s failure to perform was 
excusable (ASBCA No. 62085); (2) the government is entitled to $1,991,320 in excess 
reprocurement costs, plus interest (ASBCA No. 62145); and (3) the contracting officer 
abused his discretion in issuing Odyssey’s CPARS evaluation (ASBCA No. 62193) 
(gov’t mot. at 25; app. mot. at 9). 
 
Appeals of - )  
 )  
Odyssey International, Inc. ) ASBCA Nos. 62085, 62145, 62193 
 )  
Under Contract No. W912HN-19-C-3005 )  
   
APPEARANCES FOR THE APPELLANT: Ian L. Quiel, Esq.  
H. Burt Ringwood, Esq.  
Brian C. Johnson, Esq.  
Spencer W. Young, Esq. 
    Strong & Hanni Law Firm 
    Salt Lake City, UT 
 
APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. 
    Engineer Chief Trial Attorney 
 Laura J. Arnett, Esq. 
Anna F. Kurtz, Esq. 
Madeline Crocker, Esq. 
  Engineer Trial Attorneys 
  U.S. Army Engineer District, Savannah 
  
 

2 
 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
 
The following is not in genuine dispute.  As early as May 2018, the United States 
government was conducting a criminal investigation of Odyssey for alleged HUBZone 
violations (see Feb. 18, 2020 Declaration of Whitney McBride ¶¶ 2-4)1.  On March 27, 
2019, the parties contracted for Odyssey to construct an air traffic control tower at 
Seymour Johnson Air Force Base in North Carolina, for the amount of $19,832,000 
(gov’t mot. at 3 ¶ 6; app. resp. at 3 ¶ 6; app. mot. at 2 ¶ 1; gov’t resp. at 1 ¶ 1; R4, 
tab 3.08).  The contract provides that Odyssey submit performance and payment bonds to 
the government within 10 days after award (gov’t mot. at 4 ¶ 8; see app. resp. at 3 ¶ 8).  
In addition, the contract incorporates by reference Federal Acquisition Regulation 
(FAR) 52.249-10, DEFAULT (Fixed-Price Construction) (APR 1984) (gov’t mot. at 4 
¶¶ 9-10; see app. resp. at 3 ¶¶ 9-10).   
 
On April 10, 2019, Odyssey’s insurance agent wrote to Odyssey: 
 
We have made vigorous efforts to market your account to 
these standard-market sureties CNA, Great American, Zurich, 
and NAS, and one of the leading specialty market sureties, 
HCC Toyoko Marine.  Even with the $1,000,000 
capitalization from Whitney’s home refinance, none of these 
sureties will bond the [] project.  The primary reason with 
each surety is way too little working capital in the company.  
To support a $40-50,000,000 backlog, the minimum working 
capital number is $2,500,000, and usually that is with a hefty 
bank line of credit and substantial net worth from personal 
indemnitors.  While your profit projections for 2019 are very 
encouraging, it doesn’t fix working capital soon enough for 
surety support on this size of work program. 
 
Additionally, . . . [t]he potential Hub-Zone violation is a big 
cloud until you are absolved of liability . . . . 
 
(App. supp. R4, tab 24 at 30 (alterations added); gov’t mot. at 9 ¶ 46; see app. resp. at 6 
¶ 46, 8 ¶ 8; gov’t reply at 7 ¶ 8)  On April 16, 2019, one surety wrote to Odyssey’s 
insurance agent: 
                                              
1 Whitney McBride is Odyssey’s president and principal shareholder (McBride decl. ¶ 1; 
gov’t mot. at 8 ¶ 40; app. resp. at 6 ¶ 40).  The McBride declaration is attached to 
Odyssey’s February 18, 2020 opposition to the government’s January 17, 2020 
motion for summary judgment, the motion granted in part in Odyssey, 20-1 BCA 
¶ 37,623 at 182,655.  We may consider not only cited materials, but other 
materials in the record.  Fed. R. Civ. P. 56(c)(3). 

3 
 
 
Although the account is thin, the main reason we have to pass 
on this is due to the Hub Zone investigation in place.  The law 
underlying the false claim (the false claim act) has no 
individual Hub Zone designation which would mean the 
company is subject to investigation.  So even though the FBI 
has indicated it is not focusing on the company, there is still a 
potential that can occur and a surety who issues any bonds for 
the company who after the fact is found are not what the [sic] 
claim to be (Hub Zone compliant) are subject to triple 
damages. 
 
We, as a company, have seen this in the past and will not 
consider any requests with anything pending regarding 
Hub Zone claims.  We would not be willing to consider 
anything for the account until this issue is completely 
resolved. 
 
(App. supp. R4, tab 30 at 40-41; see app. resp. at 9 ¶ 10; gov’t reply at 8 ¶ 10).  On 
April 18, 2019, Ms. McBride procured a $1 million bridge loan on her home, which was 
used to provide Odyssey with additional working capital (app. resp. at 9 ¶ 11; see gov’t 
reply at 8 ¶ 11).  On April 22, 2019, Odyssey wrote to contracting officer, Andrew Page 
indicating Odyssey’s inability to obtain performance and payment bonds (gov’t mot. 
at 3-4 ¶¶ 6, 12; app. resp. at 3 ¶¶ 6, 12; app. mot. at 3 ¶ 4; gov’t resp. at 2 ¶ 4, 4 ¶ 1 
(citing, and quoting in part, R4, tab 4.01); app. reply at 2-3 ¶ 1).  Odyssey wrote: 
 
It is with great disappointment that I must inform you 
of our firm’s inability to acquire and deliver the proper 
payment and performance bonds for the referenced project.  
Immediately upon being notified of the award of this project 
on March 27, 2019, we contacted our bonding agency, 
Dale Barton Agency in Salt Lake City, UT, who then 
informed our then-surety (CNA) of the need for the bonds.  
Our bonding agency indicated that there were several things 
that CNA would need in order to provide the bonds.  Those 
items in terms of priority were:  1) audited financial 
statements from 2018, increased working capital and detail of 
existing backlog.  We provided the information requested and 
began our efforts to bring additional capital into the company 
(which we ultimately accomplished prior to the expiration of 
the deadline for the bonds).  Because our backlog had grown 
in excess of $50 million (including the referenced project) the 
increased working capital was deemed to be the most 

4 
 
important and the most difficult to achieve within the 10-day 
period granted to us.  For that reason, I asked for and received 
another 10-day extension of time to deliver the bonds by 
April 18, 2019.  CNA ultimately declined to provide the 
bonds, but neither CNA nor Dale Barton provided any 
feedback as to the reason for the denial.  We then sought to 
obtain the bonds through other sureties through three different 
agencies working simultaneously.  It wasn’t until April 16th 
that we became aware of the true reason for multiple sureties 
denying our account.  As it turns out, a note in our 2018 
audited financial statements that originated from our 
attorney’s representation letter to our auditor was the cause 
for bonds being denied.  The note reads, “In the summer of 
2018, the Company was informed that their former chief 
financial officer was a prime target in a criminal 
investigation by the US Attorney’s Office.  The investigation 
is ongoing and involves a potential HUB Zone violation and 
fraud.  The Company and its sole shareholder have not been a 
target of this investigation and are cooperating with the US 
Attorney’s Office.”   Despite the statement that “the 
Company and its sole shareholder have not been a target of 
this investigation,” every single surety who could have 
provided a bond for us on this job decided not to do so 
because of the perceived risk that they could be subject to 
treble damages if the company was ever deemed to have been 
party to the fraud or HUB Zone violation.  Despite all of our 
efforts, including verbal reassurances from our attorney of the 
company’s and president’s non-involvement, the specter of 
the HUB Zone violation and fraud allegedly committed by our 
former CFO was the straw that broke the camel’s back in the 
eyes of the sureties. 
 
(R4, tab 4.01 at 261) (emphasis added)  Ms. McBride would later declare that “even if 
Odyssey resolved other issues (like working capital; all of which were ultimately 
resolved), the Government’s investigation would nevertheless preclude Odyssey from 
obtaining bonding for the project” (McBride decl. ¶ 18). 
 
On April 25, 2019, Mr. Page issued a cure notice requiring Odyssey to produce 
performance and payment bonds by May 6, 2019 (gov’t mot. at 4-5 ¶ 13; app. resp. at 3 
¶ 13; app. mot. at 3 ¶ 6; gov’t resp. at 2 ¶ 6).  On May 3, 2019, Mr. Page received an 
email from Odyssey and a May 1, 2019 letter from Odyssey’s insurance agent, both 
re-iterating Odyssey’s inability to obtain performance and payment bonds for the contract 

5 
 
(gov’t mot. at 5 ¶ 14; app. resp. at 3 ¶ 14; see R4, tab 4.03).  In the letter from the 
insurance agent, the insurance agent wrote: 
 
In the summer of 2018, Odyssey was informed that their 
former chief financial officer was a prime target in a criminal 
investigation by the US Attorney’s Office.  The investigation 
is ongoing and involves a potential HUB Zone violation by 
Odyssey and fraud by the former chief financial officer . . . . 
With all the sureties we approached, the “cloud” of this 
investigation materially impairs Odyssey’s ability to obtain 
bonds on new projects until the case is settled. 
 
(R4, tab 4.03 at 265) 
 
As of May 6, 2019, Odyssey had not provided to the government the performance 
and payment bonds required by the contract for Odyssey to proceed with performance of 
the contract (gov’t mot. at 5 ¶ 16; app. resp. at 3 ¶ 16).  On May 6, 2019, Mr. Page issued 
a notice terminating the contract for default for failure to provide performance and 
payment bonds, “effective immediately upon receipt of this Notice” (R4, tab 2.01; see 
gov’t mot. at 5 ¶ 16; app. resp. at 3 ¶ 16).  On May 8, 2019, Mr. Page issued a 
modification terminating the contract for default “in conjunction with the Notice of 
Termination dated May 6, 2019” (R4, tab 5.01; see gov’t mot. at 5 ¶ 16; app. resp. at 3 
¶ 16). 
 
In its February 18, 2020 opposition to the government’s first, January 17, 2020 
motion for summary judgment, Odyssey states that “the Government’s [investigation] is 
now more than two years old with no indictments issued and no end in sight” (app. resp. 
at 12 n.9).  However, on August 26, 2020, a federal grand jury indicted Ms. McBride and 
Odyssey on charges of conspiracy to commit wire fraud, wire fraud, and major fraud 
against the United States related to alleged HUB Zone violations (gov’t mot. at 10-11 
¶ 51, ex. 5 ¶¶ 1-3; app. resp. at 7 ¶ 51).  On September 8, 2020, former Odyssey Chief 
Financial Officer (CFO) Kin Shing Lee pled guilty in federal court to wire fraud, money 
laundering, and aiding or assisting in the preparation of a false document (gov’t mot. 
at 11 ¶ 52; app. resp. at 7 ¶ 52).  Also on September 8, 2020, former Odyssey Chief 
Operating Officer (COO) Michael Tingey pled guilty in federal court to wire fraud (gov’t 
mot. at 11 ¶ 53; app. resp. at 7 ¶ 53).  In his plea agreement, Mr. Tingey admitted: 
 
In May of 2011, I was an officer or employee of Odyssey 
International, Inc.  I knew that Odyssey was not a business 
qualified as a small business in a historically underutilized 
business zone (“HUB Zone”).  I participated in conversations 
with other officers of Odyssey concerning this, even as we 
anticipated bidding on a federal contract set aside for HUB 

6 
 
Zone businesses and bid upon such a HUB Zone contract for 
Fort Drum.  For purposes of attempting to support the false 
claim that the business qualified as a HUB Zone, I 
participated with other officers of Odyssey in generating 
documents that would support false claims about who was 
and who was not an employee of Odyssey, and whether or not 
they resided in a HUB zone.  We knew those documents were 
to be presented to persons considering Odyssey’s 
qualification for the HUB zone contract.  We gathered them 
for purposes of submitting them in order to secure the 
contract and the payments under the contract.  We were 
eventually successful in securing and retaining the Fort Drum 
contract for Odyssey and received many payments on that 
contract, including a wire of $59,513.26 (which was caused 
by submission of an invoice in furtherance of this plan) and 
was directed and transmitted through the use of interstate wire 
communications on March 30, 2017. 
 
(Gov’t mot., ex. 7 at 3-4 ¶ 11)  In his plea agreement, Mr. Lee admitted: 
 
In May of 2011, I was an officer or employee of Odyssey 
International, Inc.  I knew that Odyssey was not a business 
qualified as a small business in a historically underutilized 
business zone (“HUB Zone”).  I participated in conversations 
with other officers of Odyssey concerning this, even as we 
anticipated bidding on a federal contract set aside for HUB 
Zone businesses and bid upon such a HUB zone contract for 
Fort Drum.  For purposes of attempting to support the false 
claim that the business qualified as a HUB zone, I 
participated with other officers of Odyssey in generating 
documents that would support false claims about who was 
and who was not an employee of Odyssey, and whether or not 
they resided in a HUB zone.  We knew those documents were 
to be presented to persons considering Odyssey’s 
qualification for the HUB zone contract.  We gathered them 
for purposes of submitting them in order to secure the 
contract and the payments under the contract.  We were 
eventually successful in securing and retaining the Fort Drum 
contract for Odyssey and received in excess of $90 million in 
payments on that contract, including a wire of $59,513.26 
(which was caused by submission of an invoice in furtherance 
of this plan) and was directed and transmitted through the use 
of interstate wire communications on March 30, 2017. 

7 
 
 
 
(Gov’t mot., ex. 6 at 4-5 ¶ 11)  On September 23, 2020, Odyssey admitted in a Utah state 
court civil complaint that it filed against Mr. Lee and Mr. Tingey that the actions of those 
men led to the criminal investigation against Odyssey, causing Odyssey’s inability to 
bond projects: 
 
The investigation by the United States has not been without 
its toll on Odyssey and Whitney, both economically and 
reputationally. 
 
With the investigation hanging over its head, Odyssey has 
been unable to bond new projects, and at least one agency of 
the United States has threatened to withhold funds on existing 
projects for fear Odyssey will go out of business. 
 
Because of that, Odyssey has been deprived of millions of 
dollars in profits that it otherwise would have received, but 
for the acts of Lee and Tingey which led to the investigation. 
 
(Gov’t mot. at 11 ¶ 54, ex. 8 at 14-15 ¶¶ 118-20 (emphasis added, paragraph numbers 
omitted); see app. resp. at 7 ¶ 54)  
 
 Regarding the disputed CPARS, on June 12, 2019, a government assessing official 
reported that Odyssey had performed “0%” of the contract work, rated Odyssey’s 
performance on the contract in the area of bonding as “Unsatisfactory,” and stated: 
 
Given what I know today about the contractor’s ability to 
perform in accordance with this contract or order’s most 
significant requirements, I would not recommend them for 
similar requirements in the future. 
 
(Gov’t mot. at 7 ¶¶ 29, 31; app. resp. at 5 ¶¶ 29, 31; app. mot. at 4 ¶ 13; gov’t resp. at 4 
¶ 13; R4, tab 6.01 at 1-2)  As the reviewing official, Mr. Page concurred on June 17, 
2019, that “this area [bonding] should be rated unsatisfactory due to lack of performance 
and payment bonds on the project” (gov’t mot. at 7 ¶ 32; app. resp. at 5 ¶ 32; app. mot. 
at 4 ¶ 14; gov’t resp. at 4 ¶ 14; R4, tab 6.01 at 3). 
 
 On June 28, 2019, Mr. Page reprocured the contract, after receiving updated 
pricing from three offerors (gov’t mot. at 5-6 ¶¶ 18-23, ex. 1 ¶¶ 12-14; app. resp. at 3-4 

8 
 
¶¶ 18-23; app. mot. at 4 ¶ 12; gov’t resp. at 3-4 ¶ 12).2  The lowest offer was from Walsh 
Federal JV, in the amount of $21,823,320.  Walsh Federal was responsive and 
responsible, and its price was fair and reasonable (gov’t mot. at 5-6 ¶¶ 18-23, ex. 1 
                                              
2 Exhibit 1 to the government’s January 17, 2020 motion is the January 16, 2020 
affidavit of Mr. Page.  In its December 23, 2020 opposition to the government’s 
motion for summary judgment, Odyssey says, citing Fed. R. Civ. P. 56(d), and 
that it hasn’t had the opportunity to depose Mr. Page (e.g., app. resp. at 4-5 ¶¶ 19, 
32-33, n.2).  In addition, attached to its opposition to the government’s summary 
judgment motion, Odyssey attaches the December 23, 2020 declaration of its 
attorney, who declares that Odyssey had reviewed the bidding materials relating 
to the government’s re-procurement efforts, as well as past testimony of 
Mr. Page, and believes that “certain qualitative factors may have played a role in 
artificially inflating the Government’s re-procurement costs,” and that Odyssey 
“may also elect to retain an expert to testify about the impact these qualitative 
factors had on the Government’s re-procurement costs” (Dec. 23, 2020 decl. of 
Spencer W. Young ¶¶ 2-5, 8).   
 
Nevertheless, Odyssey has not opposed the Page affidavit with any of its own; nor has it 
set out the specific evidence that would necessitate a hearing on the matters set 
forth in the Page affidavit.  The first of these three appeals was filed on May 29, 
2019, and a stay of the first two appeals was lifted on October 1, 2019, after the 
filing of the third appeal on September 23, 2019.  On January 17, 2020 the 
government filed its first motion for summary judgment, and on January 23, 2020, 
we stayed proceedings (except for briefing) pending a decision on that motion.  
The stay was effectively lifted with our June 2, 2020 decision on that motion, and 
on June 24, 2020, we adopted a proposed schedule for further proceedings that 
included a February 5, 2021 close of discovery.  On November 9, 2020, we 
granted the government’s request for a protective order against discovery requests 
concerning communications between the Army Corps of Engineers and the U.S. 
Department of Justice, the U.S. Army Criminal Investigation Command (CID), 
two Assistant United States Attorneys for the District of Utah, “or any other 
agency of the United States of America” regarding the criminal investigation of 
Odyssey; we held that the discovery requests were “not relevant to any party’s 
claim or defense.” 
 
On February 1, 2021, Odyssey deposed Mr. Page (app. reply, ex. A).  We conclude that 
the parties have had adequate opportunity to engage in discovery necessary to 
support or oppose the cross-motions for summary judgment, and we accept the 
facts asserted in the Page affidavit as undisputed.  Board Rule 7(c)(2) (“The Board 
may accept a fact properly proposed and supported by one party as undisputed, 
unless the opposing party properly responds and establishes that it is in dispute.”); 
see Fed. R. Civ. P. 56(e)(2).   

9 
 
¶¶ 12-14; app. resp. at 3-4 ¶¶ 18-23).  Mr. Page awarded the reprocured contract to 
Walsh in the amount of $21,823,320, for the same scope of work that had been awarded 
to Odyssey under Odyssey’s terminated contract (id.; gov’t mot. at 6 ¶ 20; app. resp. 
at 4, ¶ 20; R4, tab 3.10 at 1).  On July 15, 2019, Mr. Page issued a claim against Odyssey 
in the amount of $1,991,320 (gov’t mot. at 6 ¶ 23; app. resp. at 4 ¶ 22; R4, tab 2.03).   
 
DECISION 
 
Summary judgment shall be granted if the movant shows that there is no genuine 
dispute as to any material fact and the movant is entitled to judgment as a matter of law. 
Avant Assessment, LLC, ASBCA No. 58867, 15-1 BCA ¶ 36,067 at 176,127 (citing Fed. 
R. Civ. P. 56(a)).  At the summary judgment stage the judge’s function is not to weigh 
the evidence and determine the truth of the matter but to determine whether there is a 
genuine issue for trial.  Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).  The 
inquiry performed is the threshold inquiry of determining whether there is the need for a 
trial—whether, in other words, there are any genuine factual issues that properly can be 
resolved only by a finder of fact because they may reasonably be resolved in favor of 
either party.  Id. at 250.  A non-movant must set out, usually in an affidavit, what specific 
evidence could be offered at trial.  Kirk/Marsland Advert., Inc., ASBCA No. 51075, 99-2 
BCA ¶ 30,439 at 150,407.  A non-movant runs the risk of a grant of summary judgment 
by failing to disclose the evidentiary basis for its claim.  Id.  Here, the parties’ 
submissions demonstrate that there is no genuine dispute over the material facts, and that 
there is no issue for trial; more specifically, neither party has set out any specific 
evidence that necessitates a hearing (see gov’t mot. at 3-12; app. resp. at 2-10; gov’t reply 
at 5-9; app. mot. at 2-4; gov’t resp. at 1-5; app. reply at 2-5). 
 
ASBCA No. 62085 
 
In ASBCA No. 62085, Odyssey contends that the contracting officer abused his 
discretion in terminating the contract for default (app. mot. at C 4 ¶¶ 1, 6-7).  That issue 
is not properly before us.  In Odyssey International, 20-1 BCA ¶ 37,623 at 182,655, we 
granted summary judgment in the government’s favor that Odyssey defaulted on the 
contract.  However the contracting officer arrived at the default termination decision, the 
government may rely upon Odyssey’s failure to do its job to justify the termination.  
Aerospace Facilities, Inc., ASBCA No. 61026, 20-1 BCA ¶ 37,668 at 182,877; HK&S 
Constr. Holding Corp., ASBCA No. 60164, 19-1 BCA ¶ 37,268 at 181,352 (citing 
cases); aff’d, 825 F. App’x 921 (Fed. Cir. Oct. 7, 2020) (per curiam, unpublished 
opinion); see also Watts Constructors, LLC, ASBCA Nos. 61518, 61961, 19-1 BCA 
¶ 37,382 at 181,728 (citing and parenthetically quoting HK&S with approval).  Therefore, 
the only issue left in ASBCA No. 62085 is whether Odyssey’s default is excusable.  See 
HK&S, 19-1 BCA ¶ 37,268 at 181,352 (having found a default, stating “[n]ow it’s up to 
appellant to demonstrate that its default is excused.”).  FAR 52.249-10(b) provides: 

10 
 
 
The Contractor’s right to proceed shall not be terminated nor 
the Contractor charged with damages under this clause, if . . . 
The delay in completing the work arises from unforeseeable 
causes beyond the control and without the fault or negligence 
of the Contractor.  Examples of such causes include . . . acts 
of the Government in either its sovereign or contractual 
capacity . . . . 
 
48 C.F.R. § 52.249-10(b) (1984).  Where a contractor claims that its failure to perform is 
due to the government action, the burden is on the contractor to establish that the 
government action was the primary or controlling cause of the contractor’s default.  Cf. 
TGC Contracting Corp. v. United States, 736 F.2d 1512, 1515 (Fed. Cir. 1984) (“When, 
as in this case, the contractor claims that his financial inability to perform is due to the 
government’s failure to make the required progress payments, the burden is on the 
contractor to establish that the progress payments were erroneously withheld and that the 
withholding of such progress payments was the primary or controlling cause of the 
contractor’s default.”); Highland Al Hujaz Co., Ltd., ASBCA No. 58243, 16-1 BCA 
¶ 36,336 at 177,170 (“The government’s failure or delay to make payments can constitute 
a defense to a default termination only if they rendered the contractor financially 
incapable of continuing performance; are the primary or controlling cause of appellant’s 
default; or are a material, rather than insubstantial or immaterial, breach of the 
contract.”); Ricmar Eng’g, Inc., ASBCA No. 44260, 98-1 BCA ¶ 29,463 at 146,245 (“if 
the financial inability to perform was caused by the Government’s action, the default will 
be set aside . . . .  The burden rests with appellant to prove the alleged Government failure 
to negotiate an equitable adjustment was the ‘controlling cause’ for appellant’s financial 
difficulties which prevented completion of the contract.”). 
 
Here, there is no genuine dispute that Odyssey has judicially admitted in state 
court that but for the actions of Mr. Tingey, its former chief operating officer, and 
Mr. Lee, its former chief financial officer, Odyssey would have been able to bond new 
projects.  In view of that judicial admission, there is no genuine dispute that the actions of 
Mr. Tingey and Mr. Lee are the primary or controlling cause of Odyssey’s failure to 
provide bonding.  Therefore, there is no genuine dispute that the actions of Odyssey, 
through Mr. Tingey and Mr. Lee, and not the actions of the government, were the 
primary or controlling cause of Odyssey’s default.  See generally Raytheon Co., ASBCA 
No. 57743 et al., 16-1 BCA ¶ 36,335 at 177,147 (explaining evidentiary admissions and 
judicial admissions); GSC Constr., Inc., ASBCA Nos. 59402, 59601, 21-1 BCA ¶ 37,751 
at 183,245-46 (McIlmail, J., concurring and collecting cases).  Cf. Preuss v. United 
States, 412 F.2d 1293, 1302 (Ct. Cl. 1969) (finding substantial evidence that contractor’s 
non-performance was not due to defects in government-furnished microfilm but to 
plaintiff’s poor financial condition, which was due to other causes for which the 
government was not responsible); TGC, 736 F.2d at 1515 (where contractor claimed that 

11 
 
its financial inability to perform was due to the government’s failure to make required 
progress payments, upholding Board’s finding that the failure to complete the work was 
the direct result of contractor’s lack of working capital, its negligence, and its own 
actions); Highland Al Hujaz, 16-1 BCA ¶ 36,336 at 177,170 (“While the government’s 
withholding of the two progress payments might have exacerbated appellant’s financial 
difficulties, appellant has not shown that it was the primary or controlling cause . . . . 
appellant has given us no reason to depart from the normal rule that the contractor’s 
financial difficulties are not a legitimate excuse for its default.); Ricmar Eng’g, Inc., 98-1 
BCA ¶ 29,463 at 146,245 (primary cause of contractor’s financial difficulties was 
employee embezzlement of funds); United Schools of America, Inc., ASBCA No. 38628, 
90-3 BCA ¶ 23,199 at 116,426 (contractor is responsible for the unexplained failures of 
its subcontractors).  In addition, there is no suggestion that the government prohibited, 
precluded, or otherwise affirmatively prevented bond providers from providing bonding 
for the contract; that is, there is no suggestion that a bonding company could not have 
bonded the contract despite the knowledge that Odyssey was under investigation.  
Compare Olin Jones Sand Co. v. United States, 225 Ct. Cl. 741, 743-44 (1980) 
(“[Plaintiff contractor] may not recover . . . [consequential] damages which allegedly 
resulted when, because of [the government’s] actions, the bonding company or others 
refused to issue bonds on behalf of plaintiff on other contracts or work, thus crippling the 
contractor’s ability to obtain new contracts or new work.  Even if proven, these damages 
would be too remote and speculative to be recoverable” (alterations added)) with Orlosky 
Inc. v. United States, 68 Fed. Cl. 296, 309 (2005) (government liable for damages 
stemming from its denial of contractor’s access to worksite). 
  
We reject the argument (app. resp. at 14) that the actions of Mr. Lee and 
Mr. Tingey should not be imputed to Odyssey.  Corporations act through their 
employees; the general rule is that an agent’s knowledge is imputed to the principal when 
employees are acting within the scope of their authority or employment.  Kellogg Brown 
& Root Servs., Inc. v. United States, 728 F.3d 1348, 1369 & n.24 (Fed. Cir. 2013), 
opinion corrected on denial of reh’g, 563 F. App’x 769 (Fed. Cir. 2014).  Where 
employees act as a contractor’s employees under the contractor’s contract, they act within 
the scope of their authority or employment.  See id. at 1370 n.25.  There is a narrow 
exception to that general rule—the adverse-interest exception—when the agent’s conduct 
is “entirely” in the agent’s interest without even incidental benefit to the principal.  Id. 
at 1369.  In view of their plea agreements, there is no genuine dispute that Mr. Lee and 
Mr. Tingey were acting as Odyssey employees (or, more precisely, officers of Odyssey) 
in obtaining and then performing under an Odyssey contract (the Fort Drum contract), 
and, therefore, within the scope of their authority or employment.  Moreover, the 
adverse-interest exception does not apply here; rather, in view of the plea agreements 
there is no genuine dispute that Odyssey benefitted from the illegal actions of Mr. Lee 
and Mr. Tingey, by obtaining a government contract and receiving payments under that 
contract.  Cf. id. at 1370 (reversing trial court’s determination that knowledge of KBR’s 

12 
 
employees should not be imputed to KBR because “whatever motivation [the employees] 
had to accept kickbacks from [subcontractor], KBR received a benefit”).   
 
 Regarding Odyssey’s contention that its “inability to perform its bonding 
obligations under the Contract” included “a working capital issue arising from a separate 
contract with the Government” (app. mot. at 7), there is no genuine dispute that, as of 
April 18, 2019, Ms. McBride procured a $1 million bridge loan on her home, which was 
used to provide Odyssey with additional working capital, and that Odyssey admitted in its 
April 22, 2019 letter to the government that (1) Odyssey had brought additional capital 
into the company prior to the expiration of the deadline for the bonds, (2) “every single 
surety who could have provided a bond for us on this job decided not to do so because of 
the perceived risk that they could be subject to treble damages if the company was ever 
deemed to have been party to the fraud or HUB Zone violation,” and (3) “the true reason 
for multiple sureties denying [Odyssey’s] account” and “the straw that broke the camel’s 
back in the eyes of the sureties” was “the specter of the HUB Zone violation and fraud 
allegedly committed by [Odyssey’s] former [chief financial officer]”; that is, Mr. Lee.  
Indeed, Odyssey admits in its motion for summary judgment that “the primary obstacle it 
faced in procuring the bonding was [the] investigation by the Government into alleged 
HUBZone-related violations” (app. mot. at 3 ¶ 5 (emphasis added)), which defeats the 
contention that a lack of working capital caused Odyssey’s failure to provide bonding.  
Cf. Ricmar Eng’g, Inc., 98-1 BCA ¶ 29,463 at 146,245 (“Ricmar did incur financial 
difficulties which . . . we have established the primary cause as the embezzlement of 
funds Ricmar suffered at the hands of its employees . . . .  Ricmar has failed to prove that 
the Government’s action was the ‘controlling cause’ of Ricmar’s financial difficulty.”).  
For these reasons, Odyssey’s contention regarding a “working capital issue” does not 
present a genuine issue for trial.  For all these reasons, the government is entitled to 
judgment as a matter of law that Odyssey’s default is not excused.  Accordingly, ASBCA 
No. 62085 is denied.  
 
ASBCA No. 62145 
 
In ASBCA No. 62145, Odyssey challenges the government’s claim to $1,991,320 
in alleged excess reprocurement costs, plus interest, and the government moves for 
summary judgment that it is entitled to that amount, plus interest under the Contract 
Disputes Act (CDA), 41 U.S.C. §§ 7101-7109 (app. mot. at 9; gov’t mot. at 21, 25).  
FAR 52.249-10(a) provides: 
 
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 

13 
 
part of the work) that has been delayed.  In this event, the 
Government may take over the work and complete it by 
contract or otherwise, and may take possession of and use any 
materials, appliances, and plant on the work site necessary for 
completing the work.  The Contractor and its sureties shall be 
liable for any damage to the Government resulting from the 
Contractor’s refusal or failure to complete the work within the 
specified time, whether or not the Contractor’s right to 
proceed with the work is terminated.  This liability includes 
any increased costs incurred by the Government in 
completing the work. 
 
48 C.F.R. § 52.249-10(a) (1984). 
 
 To recover excess reprocurement costs the government must show:  (a) the work it 
procured is the same as or similar to that which was to be performed under the contract 
terminated; (b) it has incurred costs in excess of those under the original contract for 
performance of the work; and (c) it acted reasonably when reprocuring the work to 
minimize excess costs resulting from the default.  FFR-Bauelemente + Bausanierung 
GmbH, ASBCA No. 52152 et al., 07-2 BCA ¶ 33,627 at 166,558-59.  In view of the 
unrebutted Page affidavit, there is no genuine dispute that, less than two months after 
terminating the contract, and after receiving updated pricing from three offerors, the 
government awarded a reprocurement contract in the fair and reasonable amount of 
$21,823,320 to Walsh Federal, a responsive and responsible contractor, for the same 
scope of work that had been awarded to Odyssey under Odyssey’s terminated, 
$19,832,000 contract.  Consequently, there is no genuine dispute that (1) the work the 
government procured is the same as or similar to that which was to be performed under 
the contract terminated, (2) the government has incurred costs in excess of those under 
the original contract for performance of the work, and (3) the government acted 
reasonably when reprocuring the work to minimize excess costs resulting from the 
default.  Accordingly, the government is entitled to judgment as a matter of law in 
ASBCA No. 62145 to excess reprocurement costs in the pre-interest amount of 
$1,991,320 (the difference between the original, $19,832,000 contract and the 
$21,823,320 reprocurement contract).  We do not include CDA interest; although the 
government claims interest under the CDA, the CDA provides for interest on contractor 
claims, not government claims.  See 41 U.S.C. § 7109(a)(1).  ASBCA No. 62145 is 
denied. 
ASBCA No. 62193 
In ASBCA No. 62193, the government says its rating of Odyssey’s performance 
as “Unsatisfactory” was appropriate and not an abuse of discretion, and Odyssey says the 
rating was an abuse of discretion because the contracting officer “had no basis upon 

14 
 
which to conclude whether Odyssey’s non-performance was excused under the Contract” 
(gov’t mot. at 23, 25; app. mot. at 2, 8).  Odyssey also says that “because per the 
undisputed facts the contracting officer abused his discretion to terminate the contract for 
default, Odyssey is entitled to judgment in its favor as a matter of law . . . remanding to 
the contracting officer for reevaluation in CPARS accordingly” (app. reply at 11).  We 
can assess whether the contracting officer acted reasonably in rendering the disputed 
performance rating or was arbitrary and capricious and abused his discretion.  Cameron 
Bell Corp. d/b/a Gov. Sols. Grp. (GovSG), ASBCA No. 61856, 19-1 BCA ¶ 37,323 
at 181,537.  In other words, we may determine whether the government acted arbitrarily 
and capriciously in assigning an inaccurate and unfair performance evaluation.  Id.   
Regarding whether Odyssey’s contention that the CPARS should be remanded 
because “the contracting officer abused his discretion to terminate the contract for 
default,” whether the termination was an abuse of discretion is not properly before us.  
Again, the government may rely upon a contractor’s failure to do its job to justify a 
default termination however the contracting officer arrived at the termination decision, 
HK&S, 19-1 BCA ¶ 37,268 at 181,352, and we have held in ASBCA No. 62085 that the 
government is entitled to judgment that Odyssey defaulted on the contract. 
Odyssey also says that “where the contracting officer failed to conduct any 
investigation whatsoever of the proffered reasons for Odyssey’s non-performance, but 
instead selected and/or affirmed a rating of ‘Unsatisfactory’ that by definition is arbitrary 
and capricious in perfunctory fashion, he abused his discretion” (app. mot. at 8).  
Odyssey cites FAR 42.1502, but the only regulatory violation that Odyssey alleges 
appears to be that Odyssey’s past performance was not “Unsatisfactory” because 
“Unsatisfactory” means that “[p]erformance does not meet most contractual 
requirements” (app. mot. at 7-8), a definition found at FAR 42.1503.  However, the note 
to that definition provides that (emphasis added): 
To justify an Unsatisfactory rating, identify multiple 
significant events in each category that the contractor had 
trouble overcoming and state how it impacted the 
Government.  A singular problem, however, could be of such 
serious magnitude that it alone constitutes an unsatisfactory 
rating. 
 
It makes sense that where a contractor failed to perform the only contract task it 
attempted to perform, that failure is a singular problem of such serious magnitude that it 
alone constitutes an “Unsatisfactory” rating.  Here, it is undisputed that Odyssey failed to 
perform the only task that it attempted:  bonding.  Consequently, the assessment of 
Odyssey’s performance as “Unsatisfactory” is consistent with FAR 42.1503.  
Accordingly, the government is entitled to judgment as a matter of law that its CPARS 
rating of Odyssey’s performance as “Unsatisfactory” was appropriate and not an abuse of 

15 
 
discretion; in other words, that Mr. Page acted reasonably in rendering the disputed 
performance rating. 
 
For all these reasons, ASBCA No. 62193 is denied. 
 
CONCLUSION 
 
We have considered the parties’ other arguments, but, in view of our decisions in 
these appeals, we find those arguments unnecessary to address.  The government’s 
motion for summary judgment is granted in part.  Odyssey’s cross-motion for summary 
judgment is denied.  The appeals are denied. 
 
 Dated:  May 11, 2021 
 
 
 
 
 
 
 
 
 
TIMOTHY P. MCILMAIL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
I concur 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 OWEN C. WILSON 
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. 62085, 62145, 62193, 
Appeals of Odyssey International, Inc., rendered in conformance with the Board’s 
Charter. 
 
 Dated:  May 12, 2021   
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals