ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
HK&S Construction Holding Corp. ) 
) 
Under Contract No. W912WJ-14-C-0020 ) 
APPEARANCES FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 60164 
John A. Dorsey, Esq. 
W. Mark Russo. Esq. 
Ferrucci Russo P.C. 
Providence. Rl 
Michael P. Goodman, Esq. 
Engineer Chief Trial Attorney 
Ryan T. Killman, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, New England 
OPINION BY ADMINISTRATIVE JUDGE MC IL MAIL 
FINDINGS OF FACT 
In September 2014, the government contracted with appellant for repairs to a 
breakwater - which the parties also call a ''jetty" - that sticks out from a beach on 
Block Island, Rhode Island (R4, tab 2; tr. 1/30). Most of the job consisted of stone 
work (R4, tab 2 at 3-8). The contract required completion of the work, including 
demobilization, by March 31, 2015 (id. at 19, § 1.1 ( d) ). Some of the areas within the 
limits of the work were under the control of the Block Island town of New Shoreham; 
the government coordinated agreements with the town for appellant to be able to access 
those areas (tr. 1/70-72). On March 13, 2015, the government sent appellant a "show 
cause" letter advising that it was considering terminating the contract for default 
because of appellant's "failure to perform within the time required by the terms of [the 
contract]" (R4, tab 10 at 1). In response, on March 23, 2015, appellant made a number 
of excuses, including arguing that it was entitled to seven days of delay due to bad 
weather, and concluded by telling the contracting officer that it would not be able to 
complete the work until May 30, 2015 (R4, tab 11 at 4 ). 
In April 2015, appellant agreed with the government to extend the performance 
period to May 1, 2015, through a bilateral contract modification (R4, tab 13 at 1-2). A 
few days before that agreement, the contracting officer told appellant that she was 
"currently pursuing additional extensions of real estate agreements beyond 1 May 2015 
with the town" but that the town was "extremely hesitant to grant any extensions without 
additional information/assurances" (R4, tab 12 at 1-2). The contracting officer 

concluded that she did "not contemplate further period of performance extensions," and 
that although her office would "continue to explore the possibility of additional 
extensions to the real estate agreements beyond 1 May 2015." appellant '·must be 
prepared to be fully demobilized by I May 2015, if no extensions are possible·· (id. at 5 
(emphasis added)). May 1, 2015, came and went without completion of the \\Ork 
(tr. 1/222, 228; app. br. at 8, ,r 27). The crane used by appellant broke on May 10, 2015. 
and was never repaired (tr. 1/203-04). On June 5, 2015, the work still not completed 
(app. br. at 9, ,r 36), the government terminated the contract for default (R4. tab 1 ). 
DECISION 
Appellant wants us to convert the default termination to one for the 
convenience of the government. Appellant did not complete the work by May 1, 2015, 
but appears to be saying that the government has not proven default because the 
contracting officer (it says) decided to terminate the contract for default without fully 
analyzing how much work was left to do and how much time had been lost to weather 
delays ( app. br. at 10-11, 13 ). We disagree. Because appellant did not complete the 
work by the May 1, 2015, contract completion date, appellant defaulted. See Truckla 
Services, Inc., ASBCA Nos. 57564, 57752, 17-1 BCA ,r 36,638 at 178,444. However 
the contracting officer arrived at her termination decision, the government may rely 
upon appellant's failure to do its job to justify the termination. See Joseph Morton Co. 
v. United States, 757 F.2d 1273, 1277 (Fed. Cir. 1985); see also DCX, Inc. v. Perry, 
79 F .3d 132, 135 (Fed. Cir. 1996) (holding that factors contracting officers must 
consider before terminating contracts are not prerequisites to a valid termination). 
Now it's up to appellant to demonstrate that its default is excused. See Joseph 
Sottolano, ASBCA Nos. 59081, 60043, 16-1 BCA ,r 36,315 at 177,065. Appellant says, 
citing De Vito v. United States, 413 F .2d 114 7 (Ct. CI. 1969), that the government waived 
the completion date by allowing it to work for about a month beyond the May 1, 2015 
contract completion date (app. br. at 19-20). But this was a construction contract, to which 
the De Vito waiver would not normally apply ( something appellant does not address), and 
we find no unusual circumstances that might trigger its application here (app. br. at 19-24; 
app. supp. br. at 3-5). See BYA International, LLC, ASBCA No. 57608, 13 BCA i1 35,196 
at 172,696 ( discussing inapplicability of De Vito waiver absent unusual circumstances). 
Although appellant focuses (app. supp. br. at 3) on the contracting officer's statement that 
she would continue to explore the possibility of additional real estate agreement extensions 
with the town "beyond 1 May 2015," that was before the parties agreed to the May 1, 2015 
contract completion date. Even so, the contracting officer in the same letter also warned 
appellant that it "must be prepared to be fully demobilized by 1 May 2015, if no [such] 
extensions are possible," indicating that she did not intend to waive the May 1. 2015 
contract completion date. 
Although appellant complains that it was delayed by weather, difficulties 
obtaining stone, problems with local municipal authorities, and the breakdown of a crane, 
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it makes no effort to demonstrate how any of those issues delayed the project's critical 
path, preventing completion of the work even by June 5, 2015, the termination date. 
much less the extended May 1, 2015 contract completion date to ·which appellant agreed 
after encountering most of these issues* (app. br. at 19-26; app. supp. br. at 5-6)). See 
Creative Times Dayschool, Inc., ASBCA Nos. 59507, 59779, 16-1BCA136,535 
at 177,984 (explaining how to show that delaying items delayed project completion). 
Appellant fails to demonstrate that its default is excused. 
The appeal is denied. 
Dated: February 19, 2019 
I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
/fiMoTP.ciLMIL ---
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 60164, Appeal ofHK&S 
Construction Holding Corp., rendered in conformance with the Board's Charter. 
Dated: 
------- ----·--·-----~. 
JEFFREY D. GARDIN 
Recorder. Armed Services 
Board of Contract Appeals 
* The breakdown of the crane (which was appellant's equipment and, thus, its 
responsibility) occurred after the May 1, 2015 contract completion date. 
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