APPELLANT’S MOTION FOR SUMMARY JUDGMENT DENIED;
RESPONDENT’S MOTION FOR SUMMARY RELIEF DENIED1:
May 15, 2019
CBCA 5692, 5955
EAGLE PEAK ROCK & PAVING, INC.,
Appellant,
v.
DEPARTMENT OF TRANSPORTATION,
Respondent.
Bennett J. Lee and Stephen L. Pessagno of Varela, Lee, Metz & Guarino, LLP, San
Francisco, CA; and David B. Wonderlick of Varela, Lee, Metz & Guarino, LLP, Tysons
Corner, VA, counsel for Appellant.
Rayann L. Speakman, Western Federal Lands Highway Division, Federal Highway
Administration, Department of Transportation, Vancouver, WA; and Milton Hsieh, Eastern
Federal Lands Highway Division, Federal Highway Administration, Department of
Transportation, Sterling, VA, counsel for Respondent.
Before Board Judges KULLBERG, SULLIVAN, and RUSSELL.
RUSSELL, Board Judge.
These appeals arise out of a contract between Eagle Peak Rock & Paving, Inc. (Eagle
Peak) and the Department of Transportation’s Federal Highway Administration (FHWA or
1 Both parties are moving for the same relief with appellant characterizing its
motion as one for summary judgment and respondent characterizing its motion as one for
summary relief.  Since the appeals were filed, a revision in the Board’s rules renamed
motions for summary relief as motions for summary judgment.  48 CFR 6101.8(f) (2018)
(Rule 8(f)).

CBCA 5692, 5955 2
agency) for the construction of various improvements along approximately 4.7 miles of road
in Yellowstone National Park as well as improvements at nearby parking areas, trails and
overlooks.  Both parties have moved for summary judgment on Eagle Peak’s appeal of the
FHWA’s decision terminating the contract for default, and FHWA has also moved for
summary judgment on Eagle Peak’s claim challenging the agency’s withholding retainage.
Discussion
A termination for default is “a drastic sanction which should be imposed (or
sustained) only for good grounds and on solid evidence.”  Paradise Pillow, Inc. v. General
Services Administration, CBCA 3562, 15-1 BCA ¶ 36,153, at 176,441 (citing Lisbon
Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987)).  A termination for
default is a government claim, and the Government bears the burden of proof that its action
was justified. Lisbon Contractors, 828 F. 2d at 765; Affiliated Western, Inc. v. Department
of Veterans Affairs, CBCA 4078, 17-1 BCA ¶ 36,808, at 179,401.
Here, FHWA terminated Eagle Peak under the contract provision allowing for
terminations “[i]f the contractor refuses or fails to prosecute . . . work [under the contract]
or any separable part, with the diligence that will ensure its completion within the time
specified in the contract including any extension, or fails to complete the work within this
time.”  48 CFR 52.249-10 (1996).  “A termination for default for failure to prosecute the
work requires “a reasonable belief on the part of the contracting officer that there was ‘no
reasonable likelihood that the [contractor] could perform the entire contract effort within the
time remaining for contract performance.”’ Lisbon Contractors, 828 F.2d at 765 (quoting
RFI Shield-Rooms, ASBCA Nos. 17374, 17991, 77-2 BCA ¶ 12,714, at 61,735); see also
Singleton Enterprises v. Department of Agriculture, CBCA 2136, 12-1 BCA ¶ 35,005, at
172,038 (citing McDonnell Douglas Corp. v. United States, 323 F.3d 1006, 1016 (Fed. Cir.
2003) (adopting this formulation as the controlling standard in default cases involving a
failure to make sufficient progress)); Affiliated Western, Inc., 17-1 BCA ¶ 36,808, at 179,401. 
“A termination for failure to make progress usually occurs where the contractor has
fallen so far behind schedule that timely completion becomes unlikely.”  Affiliated Western,
Inc., 17-1 BCA ¶ 36,808, at 179,401 (citations omitted).  “The Government is not required
to prove that it was impossible for the contractor to complete performance on time.” Id. 
Rather, a termination for default will be upheld where “a demonstrated lack of diligence
indicates that [the Government] could not be assured of timely completion.”  Discount Co.
v. United States, 554 F.2d 435, 441 (1977); see also Global Construction, Inc. v. Department
of Veterans Affairs, CBCA 1198, 10-1 BCA ¶ 34,363, at 169,699; Affiliated Western, Inc.,
17-1 BCA ¶ 36,808, at 179,401.  

CBCA 5692, 5955 3
Both parties have moved for summary disposition on Eagle Peak’s appeal challenging
the default termination.  As an initial matter, the parties dispute whether the contracting
officer applied the correct standard in reaching her decision to terminate Eagle Peak’s
contract - i.e.,  whether she had a reasonable belief that there was “no reasonable likelihood”
that Eagle Peak could perform the construction services within the time remaining for
contract performance.  See Lisbon Contractors, 828 F.2d at 765.  Relying on the contracting
officer’s deposition testimony, Eagle Peak asserts that the contracting officer based her
termination decision on whether there was “a reasonable likelihood” that Eagle Peak would
not complete the construction project within the contract period of performance, as opposed
to finding, as required, that there was “no reasonable likelihood” that the company could
complete the project within the required deadline.  For its part, FHWA asserts that, contrary
to Eagle Peak’s argument, the contracting officer did, in fact, apply the appropriate standard
for a default determination as evidenced by language in a letter sent by the contracting officer
to Eagle Peak shortly after Eagle Peak was notified of the termination.  In the letter, the
contracting officer stated that she terminated Eagle Peak’s contract because she determined
that there was “no  reasonable likelihood” that Eagle Peak could meet the completion date
in the contract.
From there, the disputed facts on the default termination claim are many.  The parties
dispute the sufficiency of the agency’s consideration of a number of factors as relates to the
agency’s termination of the construction contract including but, not limited to, Eagle Peak’s
work progress prior to the termination, proposed schedules, production rates and resources;
tasks on the critical path and the impact, if any, of those tasks on project completion; who
caused any delay and how long did it last; and the appropriate application of an agency
specification for construction of roads.  Further, Eagle Peak raises disputed facts relating to
the agency’s withholding retainage.  Specifically, Eagle Peak challenges the agency’s
withholding of a certain percentage of progress payments based on Eagle Peak’s alleged
failure to provide a contract-compliant project schedule to the agency within a timely
manner.      
The parties support their respective motions with references to Rule 4 documents
including agency construction specifications, deposition transcripts including those of 
experts, and other evidence.  “It is well settled that in order to obtain summary relief, a party
must show that there are no material factual disputes[,] . . . and it is entitled to judgment as
a matter of law.”  DOT Construction, Inc. v. Department of Agriculture, CBCA 3966, 15-1
BCA ¶ 36,011, at 175,887; see also 6th and E Associates, LLC v. General Services
Administration, CBCA 1802, 10-2 BCA ¶ 34,596, at 170,527.  We find that there are
unresolved disputed facts that preclude resolution of the two appeals by summary disposition. 
See AT&T Technical Services Company, Inc. v. Department of Veterans Affairs, CBCA 6171,
slip op. at 4 (May 6, 2019) (denying parties’ cross-motions noting that the record was replete
with conflicting evidence).  

CBCA 5692, 5955 4
Decision
Appellant’s motion for summary judgment is DENIED, and respondent’s motion for
summary relief is DENIED.  The hearing in these appeals shall commence on May 29, 2019. 
   Beverly M. Russell                  
BEVERLY M. RUSSELL
Board Judge
We concur:
  H. Chuck Kullberg               Marian E. Sullivan              
H. CHUCK KULLBERG MARIAN E. SULLIVAN
Board Judge Board Judge