ARMED SERVICES BOARD OF CONTRACT APPEALS 
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON THE GOVERNMENT’S 
MOTIONS TO DISMISS FOR LACK OF JURISDICTION AND AS MOOT 
 
 The government moves to dismiss, for lack of jurisdiction and as moot, this appeal 
from what appellant, Ultra Electronic Ocean Systems, Inc. (Ultra or UEOS), says is the 
government’s November 16, 2020 default termination of its contract for torpedo system 
test sets.   
 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
 
 On July 29, 2013, the parties contracted for Ultra “to design, manufacture, test, 
integrate and deliver [] hardware and software” for “a new [] torpedo system-level test 
set” (see R4, tab 1 at 1, 60).  The contract incorporates by reference Federal Acquisition 
Regulation (FAR) 52.249-6, FAR 52.249-8, and FAR 52.249-9 (R4, tab 1 at 123). 
  
 On November 16, 2020, the contracting officer signed a letter dated November 13, 
2020, bearing the title “Notice of Intent to Terminate for Default N66604-13-C-1026” 
(Notice of Appeal, ex. 1 at 1).  In that document the contracting officer wrote that “[t]he 
purpose of this letter is to inform you that the Government considers [Ultra] to be in 
breach of the terms of the subject contract for failure to deliver the Technical Data 
Appeal of - )  
 )  
Ultra Electronic Ocean Systems, Inc. ) ASBCA No. 62804 
 )  
Under Contract No. N66604-13-C-1026 )  
   
APPEARANCES FOR THE APPELLANT: Thomas A. Lemmer, Esq.  
Phillip R. Seckman, Esq.  
Lisette S. Washington, Esq. 
  Dentons US LLP 
  Denver, CO 
   
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq. 
    Navy Chief Trial Attorney 
 Richard C. Dale II, Esq. 
Audra L. Medeiros, Esq. 
    Trial Attorneys 
    Naval Undersea Warfare Center 
  Newport, RI 
 

2 
 
Package (TDP) defined in [the contract] by 08 September 2020” (id.).  The contracting 
officer also wrote: 
 
[T]he Government considers the failure to deliver an 
acceptable TDP a breach of the awarded and revised terms 
and conditions of the contract.  Therefore, effective 
immediately and in accordance with the default and 
termination subject contract clauses (FAR 52.249-6, 
52.249-8, and 52.249-9), UEOS is notified that the 
Government hereby exercises its right to terminate the 
contract in whole. 
 
(Id. at 4) (emphasis added)  The contracting officer also wrote, “[a] formal contract 
modification including the terms and conditions of the termination for default will follow 
this letter” (id. at 5).  Finally, the November 16, 2020 letter does not include any 
recitation of a contractor’s appeal rights.  Nowhere in any of its three motions briefs does 
the government mention or acknowledge that the November 16, 2020 document states 
that “effective immediately and in accordance with the default and termination subject 
contract clauses [] the Government hereby exercises its right to terminate the contract in 
whole.”
1 
 
 Ultra filed its notice of appeal on February 3, 2021, stating that it “appeals the 
termination for default decision,” and “disagrees with the assertions in the Termination 
Notice that the Contract required the delivery of a complete [MK 710 Technical Data 
Package (‘TDP’)] by September 8, 2020, and that the TDP Ultra delivered contained 
significant deficiencies.”  Also on February 3, 2021, Ultra filed a motion requesting that 
the Board order the government to file the complaint in this appeal (app. mot. at 7). 
 
 On February 25, 2021, the government moved to dismiss the appeal for lack of 
jurisdiction, saying that its “November Notice of Intent to Terminate for Default does 
not, and cannot, constitute the ‘final decision’ necessary to bestow jurisdiction on the 
matter to the Board” (gov’t mot. at 3).  On March 23, 2021, the contracting officer issued 
a document titled “Notice of Termination for Default N66604-13-C-1026” that states, 
among other things, that (1) “[t]he following represents all facts pertinent to the claim 
                                              
1 Although the government filed a reply to Ultra’s opposition to the government’s second 
motion to dismiss, the government did not file a reply to Ultra’s opposition to the 
government’s first motion to dismiss, in which Ultra points out that the contracting 
officer’s November 16, 2020 document states that “[E]ffective immediately and in 
accordance with the default and termination subject contract clauses FAR 52.249-
6, 52.249-8, and 52.249-9), UEOS is notified that the Government hereby 
exercises its right to terminate the contract [Contract No. N66604-13-C-1026” (the 
“Contract”)] in whole” (app. opp’n at 1 (emphasis and alterations in original)). 

3 
 
and the Contracting Officer’s final decision”; (2) “the Government is left with no option 
but to terminate the contract for default”; (3) “[t]his is the final decision of the 
Contracting Officer”; and (4) “[y]ou may appeal this decision to the agency board of 
contract appeals,” among other recitations of appeal rights (second gov’t mot., attach. 
at 1, 16).  Although the contracting officer states in the March 23, 2021 document that 
“the Government is left with no option but to terminate the contract for default,” the text 
of the document does not specifically state that the contract is terminated for default as a 
result of the March 23, 2021 document (second gov’t mot., attach. at 1, 18).  Rather, the 
March 23, 2021 document includes phrases such as “CLIN 0006 will be terminated in 
full” (e.g., id. at 13) (emphasis added). 
 
 On March 24, 2021, the government filed a second motion to dismiss the appeal 
for lack of jurisdiction, this time saying that the appeal is moot.  Attached to the motion 
to dismiss as moot is the March 23, 2021 “Notice of Termination for Default” (second 
gov’t mot., attach. at 1).  In support of the second motion to dismiss, the government 
cites the “Conclusion” on page 7 of Ultra’s February 3, 2021 motion for an order 
directing the government to file a complaint for the statement that “[i]n its Appeal, the 
singular relief sought by the Appellant is the issuance of a termination Final 
Decision/Complaint by the Agency/Contracting Officer that would ‘. . . properly focus 
the legal and factual issues . . .’ of the Agency’s proposed Termination for Default” 
(second gov’t mot. at 2).  However, the sentence from which the government quotes 
states “[a] Board order for the government to file the complaint in this matter would 
properly focus the legal and factual issues in this Appeal” (app. mot. for compl. at 7).  
Nowhere in its February 3, 2021 motion, much less in the conclusion to that motion, 
does Ultra state that it requests the issuance of a contracting officer’s final decision. 
 
 In the government’s March 24, 2021 motion, the government also represents that 
“[o]n March 23, 2021, the Agency, through its Contracting Officer, granted the relief 
sought by the Appellant” (second gov’t mot. at 2).    
 
DECISION 
 
 The government says that we lack jurisdiction to entertain the appeal because, 
according to the government, the November 2020 “notice of intent to terminate for 
default” is not a contracting officer’s final decision.  Our jurisdiction requires both a valid 
claim and a contracting officer’s final decision on that claim.  See Parsons Gov’t Servs., 
Inc., ASBCA No. 62113, 20-1 BCA ¶ 37,586 at 182,508.  We conclude that the 
government terminated the contract for default on November 16, 2020, in the “notice of 
intent to terminate for default” that the contracting officer signed on that date, and which 
document we hold is a contracting officer’s final decision.  The statement in that 
November 16, 2020 document that “effective immediately and in accordance with the 
default and termination subject contract clauses [], UEOS is notified that the Government 
hereby exercises its right to terminate the contract in whole” has the characteristics of a 

4 
 
final expression of the government’s position to terminate the contract for default, 
making it final and appealable.  See Ebasco Env’t, ASBCA No. 44547, 93-3 BCA 
¶ 26,220 at 130,490.2  After all, the term “hereby” means “by this means” and “as a result 
of this.”  Hereby, OXFORD POCKET AMERICAN DICTIONARY OF CURRENT ENGLISH 
(2002).  Consequently, in stating that “the Government hereby exercises its right to 
terminate the contract,” the government by that November 16, 2020 document, and as a 
result of that document, terminated the contract. 
 
 The absence of appeal rights in the November 16, 2020 contracting officer’s final 
decision does not change this outcome, because the government’s failure to include the 
notice of appeal rights in that document does not render an otherwise valid final decision 
invalid.  See Parsons, 20-1 BCA ¶ 37,586 at 182,509.  Nor does the reference in that 
document to a future modification that would include “the terms conditions of the 
termination for default” change the outcome.  The termination for default itself was 
accomplished by the November 16, 2020 contracting officer’s final decision, regardless 
of what “terms and conditions of the termination for default” a forthcoming modification 
might also impose.   
 
 We also disagree with the government’s apparent position (see second gov’t mot., 
reply at 2) that the appeal is not a challenge to the validity of the default termination.  
Ultra appealed from that termination on February 3, 2021, challenging the termination on 
its merits.  In the notice of appeal, Ultra expressly states that it “appeals the termination 
for default decision” and that it “disagrees with the assertions in the Termination Notice 
that the Contract required the delivery of a complete TDP by September 8, 2020, and that 
the TDP Ultra delivered contained significant deficiencies,” which are the bases of the 
contracting officer’s November 16, 2020 final decision terminating the contract for 
default.  Consequently, the appeal from that termination is at least an implicit request that 
the Board convert the default termination to one for the convenience of the government.  
Indeed, the contract incorporates by reference FAR 52.249-6, FAR 52.249-8, and 
FAR 52.249-9, which provide that if, after termination for default, it is determined that 
the contractor was not in default, the rights and obligations of the parties will be the same 
as if the termination was for the convenience of the government.  FAR 52.249-6(b); 
FAR 52.249-8(g); FAR 249-9(g).   
 
 The government also says the appeal is now moot because “the singular relief 
sought by Appellant is the issuance of a termination Final Decision/Complaint by the 
Agency/Contracting Officer that would ‘. . . properly focus the legal and factual issues 
. . .’ of the Agency’s proposed Termination for default” (second gov’t mot. at 2).  
Ultra’s request that the government file the complaint in this appeal does not withdraw 
                                              
2 Ultra cites Ebasco at page 4 of its opposition to the government’s first motion to 
dismiss.  In deciding not to reply to that opposition, the government fails to 
address Ebasco. 

5 
 
the appeal or concede Ultra’s challenge to the contract termination or the bases for that 
termination.  Nor does the government’s March 23, 2021 “notice of termination” 
extinguish the dispute between the parties; nowhere in that document does the 
government retreat from its November 16, 2020 termination of the contract for default.  
Moreover, Ultra has not represented to this Board that the issuance of a contracting 
officer’s final decision would satisfy its appeal.  Consequently, there is something left 
for us to adjudicate:  namely, and at least, whether the termination for default is 
justified.  See generally CKC Sys., Inc., ASBCA No. 61025, 19-1 BCA ¶ 37,385 at 
181,750 (describing parties’ respective burdens in appeal from termination for default); 
cf. American Best Constr. Co., ASBCA No. 62146, 19-1 BCA ¶ 37,450 (dismissing 
appeal as moot where government converted default termination to convenience 
termination).  
 
 For these reasons, we possess jurisdiction to entertain the appeal, which is not 
moot. 
  
 CONCLUSION 
 
 
 The government’s motions to dismiss the appeal are denied. 
 
 Dated:  June 17, 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 
 
 


6 
 
 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. 62804, Appeal of Ultra 
Electronic Ocean Systems, Inc., rendered in conformance with the Board’s Charter. 
 
 Dated:  June 21, 2021  
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals