DENIED: January 7, 2021
CBCA 6621, 6747
ITS GROUP CORP,
Appellant,
v.
DEPARTMENT OF AGRICULTURE,
Respondent.
Porcia Hopkins, President of ITS Group Corp, Southhaven, MS, appearing for
Appellant.
Jennifer McVey Thomas, Office of the General Counsel, Department of Agriculture,
Juneau, AK, counsel for Respondent.
Before Board Judges SOMERS (Chair), ZISCHKAU, and CHADWICK.
SOMERS, Board Judge.
The United States Department of Agriculture (USDA) awarded a contract to ITS
Group Corp to paint various buildings in a remote area of Alaska.  Because ITS Group failed
to paint the buildings to the contracting officer’s satisfaction, the contracting officer refused
to pay ITS Group progress payments for the work performed.  When ITS Group appeared
to have vacated the job site, the contracting officer issued a cure notice.  In response, ITS
Group failed to provide adequate assurance that it could complete the work.  The contracting
officer terminated the contractor for default.  


CBCA 6621, 6747 2
ITS Group initially appealed the denial of the claim for progress payments.  Later, ITS
Group appealed the termination for default.  Based upon the record and for the reasons
explained below, we deny ITS Group’s appeals. 
Background
On August 8, 2018, USDA solicited bids for the painting of eight buildings in the
Kenai Lake Work Center (KLWC), a remote area located in Alaska’s Chugach National
Forest.  The solicitation encouraged potential bidders to travel to Chugach and to visually
inspect the buildings prior to placing a bid on the contract.  The contract incorporated
standard clauses, including Federal Acquisition Regulation (FAR) 52.246-12 (Inspection of
Construction), FAR 52.236-3 (Site Investigation and Conditions Affecting the Work), FAR
52.236-2 (Differing Site Conditions), and FAR 52.232-5 (Payments Under Fixed-Price
Construction Contracts).
On July 18, 2019, USDA awarded the firm fixed-price contract to ITS Group, a small
business located in Southaven, Mississippi.  The contracting officer issued the notice to
proceed on August 1, 2019.  ITS Group employees traveled to Alaska to begin work on the
buildings.  After a government “inspector-in-training” took the employees on a walkthrough
of the site, the inspector discussed and identified certain weathered areas (the southern facing
sides of the buildings), noted that the contract required additional preparation and priming
to paint those areas, and provided the contractor with paint samples of the paint colors
specified by the contract.  ITS Group began work that afternoon.  Over the weekend of
August 10–11, ITS Group painted the exterior of three of the eight buildings with no
oversight by government personnel, who did not remain on the worksite over the weekend. 
The inspector returned to the work site on August 12, 2019.  After examining the
painting on the first three buildings, the inspector notified the contracting officer and ITS
Group representatives that he did not believe the work conformed with contract requirements
because it appeared that ITS Group failed to adequately prep the walls prior to painting and
that the painting was uneven.  Nonetheless, ITS Group contacted the contracting officer to
request an official walk-through of the first three buildings, seeking to receive progress
payments on the work.  The contracting officer told them that the contracting officer’s
representative (COR) would be available on August 15. 
When the COR arrived on August 15, 2019, it appeared that the paint crew had
departed the worksite and removed its equipment.  After inspecting the work on the three
buildings, the COR determined that the contractor had failed to paint the three buildings in
conformance with contract specifications.  The COR recommended that the contracting
officer not release a progress payment for the work completed as it was not acceptable.  

CBCA 6621, 6747 3
On August 16, the contracting officer sent ITS Group a cure notice as well as a notice
of noncompliance with the terms of the contract.  On August 20, the contracting officer sent
ITS Group a revised cure notice which requested that ITS Group provide a plan for redoing
the work to meet contract requirements. 
ITS Group responded to the cure notice by asserting that the contractor had rendered
services and should be paid its progress payment for the work performed.  ITS Group
explained that the employees had returned home to avoid incurring expenses while waiting
for the Government to issue payment.  Somewhat contradictorily, ITS Group contended that
the decayed, dry condition of the wood made it impossible to paint the exterior.  ITS Group
stated that in order to meet contract requirements, the wood would need to be replaced before
it could be properly painted.  
On August 23, 2019, ITS Group submitted a written claim to the contracting officer
seeking a progress payment in the amount of $46,250, the lump sum price of completing
contract work on three buildings.  The sum also included costs for equipment storage,
warehouse, carpenter shop, travel, lodging, and paint materials.  
The contracting officer denied the claim, stating that the contractor’s work failed to
comply with the contract specifications and that neither the contracting officer nor the COR
had accepted the work.  Next, rejecting the claim that the decayed wood made painting
impossible, the contracting officer asserted that had ITS Group inspected the worksite prior
to bidding the project, it would have gained a better understanding of the scope of the work
required.   
At some point after ITS Group departed, government employees successfully painted
the exterior of the buildings, accomplishing the job that ITS was contracted to perform but
failed to do. 
ITS Group appealed the contracting officer’s decision on October 2, 2019, docketed
as CBCA 6621.  On December 4, 2019, the contracting officer terminated the contract for
default because of ITS Group’s failure to complete the work in compliance with the terms
and conditions of the contract.  ITS Group filed a second appeal, CBCA 6747, in which ITS
Group contested the termination.  The Board consolidated the appeals by order dated
February 27, 2020.  
The parties elected to submit the matter for resolution on the written record, without
a hearing on the merits but with briefs, pursuant to Board Rule 19, 48 CFR 6101.19 (2019),
following the submission of the appeal file, complaint, and answer; telephone conferences
with the presiding judge; and the development of the record.

CBCA 6621, 6747 4
Discussion
(CBCA 6621)  Claim of Payment for $46,250
ITS Group argues that it fulfilled contract requirements when it painted three of the
buildings required by the contract and that the “inspector-in-training” accepted the work.  As
a result, ITS Group claims that it is entitled to a lump-sum progress payment of $46,250. 
The Government disagrees, stating that the inspector never accepted the work.  
The record supports the Government’s position.  According to inspection logs, the
inspector recommended that the contracting officer not accept the work and withhold
payment until ITS Group brought the work into compliance with the contract specifications. 
Nothing in the record indicates that the Government ever approved the work performed by
ITS Group.  Instead, it demonstrates that ITS Group failed to meet contract standards and
that USDA officials rejected the work. 
Under the terms of the contract, the contractor must complete all work and have it
accepted by the contracting officer prior to receiving payment.  48 CFR 52.232-5 (2019)
(FAR 52.232-5).  ITS Group, as claimant, bears the burden of proving that the Government
has not paid an amount that is due or owing.  See, e.g., JBG/Federal Center, L.L.C. v.
General Services Administration, CBCA 5506, et al., 18-1 BCA ¶ 37,120; Navigant
SatoTravel v. General Services Administration, CBCA 449, 11-1 BCA ¶ 34,765; Springcar
Company, LLC. v. General Services Administration, CBCA 1310, et al., 10-1 BCA ¶ 34,407.
ITS Group has failed to meet its burden of proof.  As noted above, the Government’s
issuance of progress payments is conditioned on the acceptance of ITS Group’s work by the
contracting officer.  FAR 52.232-5.  As the record demonstrates, the contractor’s work
contained multiple deficiencies, such as improper preparation, uneven paint coverage, and
failure to eliminate shadowing.  Thus, the Government’s refusal to pay ITS Group is the
direct result of ITS Group’s failure to meet express contract requirements.  While ITS Group
disputes the findings made by USDA officials, it has submitted no evidence to prove that its
work satisfied contract provisions.  ITS Group has failed to show that the Government
wrongfully withheld payment otherwise owed. 
Based upon the above, we find that ITS Group has not established entitlement to
progress payments.  Accordingly we deny its claim for $46,250.  

CBCA 6621, 6747 5
(CBCA 6747)  Default Termination
The Government holds the burden of proving that a termination for default was
proper. Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 763 (Fed. Cir. 1987). 
Termination for default is considered to be a drastic sanction “which should be imposed (or
sustained) only for good grounds and on solid evidence.”  Affiliated Western, Inc. v.
Department of Veterans Affairs, CBCA 4078, 17-1 BCA ¶ 36,808; Paradise Pillow, Inc. v.
General Services Administration, CBCA 3562, 15-1 BCA ¶ 36,153 (citing Lisbon
Contractors, Inc., 828 F.2d at 765).  A termination for default for failure to complete the
work under the contract “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.”  Global Construction, Inc. v.
Department of Veterans Affairs, CBCA 1198, 10-1 BCA ¶ 34,363 (citing Lisbon
Contractors, Inc., 828 F.2d at 765).
USDA must establish that it was reasonable to believe that ITS Group would not
complete work under the contract within the time designated for contract performance.  We
find that USDA has met that burden.  The contracting officer sent a notice of noncompliance
and two cure notices to ITS Group.  ITS Group failed to address the concerns raised or to
provide a plan for completion of the work. 
ITS Group argues that it was impossible to paint the exterior of the buildings. 
Specifically, ITS Group alleges that certain areas of the buildings had not been properly
maintained, resulting in decayed wood that could not absorb the paint.  ITS Group claims
that until the decaying wood is replaced, the contract is rendered impossible to perform. 
To establish the defense of impossibility, ITS Group must show that performance was
objectively impossible.  Seaboard Lumber Co. v. United States, 308 F.3d 1283, 1294 (Fed.
Cir. 2002) (citing Jennie-O Foods, Inc. v. United States, 580 F.2d 400, 409 (Ct. Cl. 1978)). 
In order to meet this standard, ITS Group must show that other similarly situated contractors
would have been unable to perform the work required under the contract.  Hearthstone, Inc.
v. Department of Agriculture, CBCA 3725, 15-1 BCA ¶ 35,895; see Rowe Inc. v. General
Services Administration, GSBCA 14211, 01-2 BCA ¶ 31,630. 
Here, ITS Group cannot show that it would be impossible to complete the work.  The
record does not reflect any evidence of similarly situated contractors failing to perform under
this contract.  However, the record does provide evidence showing that government
personnel at KLWC successfully painted the exterior of the buildings, accomplishing the job
that ITS was contracted to perform but failed to do.  As a result, ITS Group has failed to
establish the defense of impossibility.  We conclude that the termination for default was

CBCA 6621, 6747 6
proper because the work was not impossible and there was no reasonable likelihood that ITS
Group could perform the contract in the remaining time. 
Decision
For these reasons, ITS Group’s appeals are DENIED. 
    Jeri Kaylene Somers      
JERI KAYLENE SOMERS
Board Judge
We concur:
  Jonathan D. Zischkau         Kyle Chadwick               
JONATHAN D. ZISCHKAU KYLE CHADWICK
Board Judge Board Judge