DENIED: June 30, 2011 
CBCA 1143 
RYLL INTERNATIONAL, LLC, 
Appellant, 
v. 
DEPARTMENT OF TRANSPORTATION, 
Respondent. 
Marlene Ryll, President of Ryll International, LLC, Texas City, TX, appearing for 
Appellant. 
Rayann L. Speakman, Office of Division Counsel, Western Federal Lands Highway 
Division, Federal Highway Administration, Department of Transportation, Vancouver, WA, 
counsel for Respondent. 
Before Board Judges DANIELS (Chairman), STEEL , and KULLBERG . 
STEEL , Board Judge. 
On July 13, 2007, Ryll International, LLC (Ryll) entered into contract DTFH70-07-P­
00101 with the Federal Highway Administration (FHWA) to crush and stockpile 5750 cubic 
yards (cy) of select borrow and 12,700 cy of surface course aggregate in Katmai National 
Park (Katmai or Park), Alaska. The contract was a firm fixed price commercial services 
contract in the amount of $1,085,250. When Ryll was not able to complete the work within 
the period specified, its contract was terminated for cause. Ryll appealed the termination for 
cause, contending that its failure to perform was excusable and that the termination should 
be converted to one for the convenience of the Government. 

 
  
           
           
             
            
             
   
            
              
            
               
               
               
                  
          
            
            
          
          
               
        
   
              
              
             
            
                 
         
             
  
             
             
               
               
            
2 CBCA 1143 
Findings of Fact 
Initially, FHWA had intended to award this project under the Small Business 
Administration’s (SBA) 8(a) set-aside program. However, after receiving quotes and 
determining the prices were too high, the agency restructured the procurement to be a 
competitively bid firm fixed price commercial services contract. Various clauses were 
changed from those appropriate to a construction contract to those required for a commercial 
services contract. 
Earlier in the acquisition process, and for the 8(a) solicitation, FHWA showed the 
project site as being available between June 15 and September 20, 2007. After restructuring 
the procurement, the June 19, 2007, solicitation informed prospective bidders that they could 
not perform any work, in particular the clearing and grubbing work, before July 16, 2007, but 
they could mobilize and set up equipment at the Moraine Pit from which the borrow and 
aggregate were to be taken as soon as the conditions permitted. The contract was awarded 
to Ryll on July 13, 2007. All work was to be completed by October 31, 2007. 
The contract was administered by FHWA’s Western Federal Lands Highway Division 
(WFLHD) out of Vancouver, Washington. Around August 23, 2007, the initial contracting 
officer (CO), Patricia Mahurin, was replaced by a more experienced CO, Elizabeth Firestone. 
Ms. Firestone has worked at FHWA for approximately twenty years administering 
construction contracts, including crushing contracts, as a project engineer and contracting 
officer. She worked out of the WFLHD in Vancouver, as did Steven Hinz, the construction 
operations engineer and contracting officer’s technical representative (COTR). 
In order to save funding, FHWA decided not to have contracting personnel working 
at the Park’s job site. James Gavin, the National Park Service’s (NPS) Facilities Manager 
for the Park, was the only Government representative in the Park on a day-to-day basis. 
Mr. Gavin was the chief of maintenance for the Park and in charge of all the in-house NPS 
Park projects. He had approximately twenty-five years experience working on NPS projects 
in the Park. Ryll was instructed to work with Mr. Gavin, and Mr. Gavin was tasked with 
helping coordinate communications between Ryll and the WFLHD contracting personnel. 
Mr. Gavin, however, was not delegated any authority to administer or change the contract. 
Mr. Gavin responded to Ryll’s inquiries regarding all aspects of the undertaking, including 
sending geotechnical information, well in advance of Ryll’s bidding the project. Mr. Gavin 
testified that access to the Park was available by commercial aircraft starting in mid-May. 
Marlene Ryll was one of the owners and the president of Ryll, and her husband, Alan 
Dodd, was both an owner and Ryll’s operations manager. Ms. Ryll and Mr. Dodd managed 
the contract via telephone calls and e-mail messages from outside Alaska, apparently making 

 
             
             
                  
         
             
  
            
          
              
           
       
           
             
          
        
 
    
   
       
               
            
     
            
             
              
            
          
  
             
            
         
               
             
          
3 CBCA 1143 
only three contract-related visits to Alaska, none of which occurred after the actual work 
began. James Chalker was Ryll’s on-site administrative manager; however, he did not give 
direction or make decisions about the work. 
The contract incorporated by reference Federal Acquisition Regulation (FAR) clause 
52.212-4, Contract Terms and Conditions - Commercial Items (Sept. 2005). In pertinent part, 
that clause stated: 
(f) Excusable delays . The Contractor shall be liable for default unless 
nonperformance is caused by an occurrence beyond the reasonable control of 
the Contractor and without its fault or negligence such as, acts of God or the 
public enemy, acts of the Government in either its sovereign or contractual 
capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually 
severe weather, and delays of common carriers. The Contractor shall notify 
the Contracting Officer in writing as soon as it is reasonably possible after the 
commencement of any excusable delay, setting forth the full particulars in 
connection therewith, shall remedy such occurrence with all reasonable 
dispatch, and shall promptly give written notice to the Contracting Officer of 
the cessation of such occurrence. 
. . . . 
(m) Termination for cause . The Government may terminate this contract, or 
any part hereof, for cause in the event of any default by the Contractor, or if 
the Contractor fails to comply with any contract terms and conditions, or fails 
to provide the Government, upon request, with adequate assurances of future 
performance. In the event of termination for cause, the Government shall not 
be liable to the contractor for any amount for supplies or services not accepted, 
and the Contractor shall be liable to the Government for any and all rights and 
remedies provided by law. If it is determined that the Government improperly 
terminated this contract for default, such termination shall be deemed a 
termination for convenience. 
48 CFR 52.212-4(f), (m) (2007). Clauses relating to environmental protection of the Park 
were also included in the contract. One such clause, Construction Activities Outside 
Construction Limits, provided that when Ryll anticipated ground disturbance, occupation, 
or clearing activities outside the areas delineated on the plans, it was required to submit a 
description, schedule, and location of the proposed activities to the CO for approval and 
allow twelve days to receive the approval from the CO. 

 
   
             
             
            
            
            
        
                
             
               
             
     
              
                 
                
               
          
              
                
               
         
         
            
             
     
     
                 
              
         
4 CBCA 1143 
The contract also provided: 
Access to the project is by barge up the Naknek River from King Salmon, 
Alaska. Water depths vary and access is limited during certain portions of the 
year. 
Do not perform any work, in particular clearing and grubbing, before July 16 
th , 
st 2007. Complete work by October 31 , 2007. Mobilization, survey work, and 
set up of equipment in Moraine Pit may be allowed earlier, if conditions 
permit. 
Coordinate mobilization and de-mobilization of equipment with Jim Gavin, 
NPS Facilities Manager . . . . This will help to ensure a smooth transition into 
and out of the Park, with minimal impact on wildlife and visitors. Brown 
bears are known to frequent the area of entry into the Park. Provide 48 hour 
advance notice of all activities at this area, and coordinate efforts with the NPS 
to minimize impact on the bears. 
The Park and Moraine Pit are remotely located. All equipment and supplies had to 
be brought into the Park by barge and driven or hauled onto the work site. 
1 Getting the 
equipment and supplies into the Park and onto the work site was one of the most challenging 
aspects of the contract. Access for equipment and supplies to Katmai Park was via barge 
across open ocean to Naknek, Alaska. From Naknek, equipment and supplies needed to be 
driven or hauled to King Salmon, Alaska, and then on to Lake Camp, approximately twenty-
five miles from Naknek. At Lake Camp, the equipment and supplies had to be loaded and 
barged up the Naknek River and across Naknek Lake to Brooks Camp in Katmai. From 
there, equipment and supplies had to be driven or hauled to Squirrel Camp, 
2 and, if needed 
at the work site, on to the Moraine Pit. 
1 Equipment included, among other things, trucks, a bulldozer, a backhoe, a 
crusher, and sieves. Supplies included, among other things, tents, food, cots, heaters, piping, 
tanks, fuel, propane, and water. 
2 Squirrel Camp was the area in which the workers ate, lived, and slept. It was 
located at a tented area and had cooking and hot shower facilities. Set-up of the camp began 
around August 7, 2007. Squirrel Camp was inspected by the Government on September 12, 
2007, and found to be sufficient for its purposes. 

 
              
               
               
               
            
            
           
                 
              
                
                  
                 
            
               
                 
           
               
             
               
              
           
               
            
  
          
       
             
           
             
           
               
             
                
          
          
5 CBCA 1143 
3Ryll prepared its bid based on its experience and by contacting suppliers; it did not
visit the site prior to bidding. Ryll estimated that it would take twenty to twenty-three days 
to perform the actual rock crushing, and as few as five days, given good weather conditions 
and no other delays, to mobilize to the site. The only comprehensive written quote Ryll 
received prior to bidding was from S&S General Contractors & Equipment Rentals, Inc. 
(S&S), which submitted a quote to perform the crushing and stockpiling work, including 
mobilization, clearing, grubbing, stripping, crushing, and gradation testing. S&S quoted a 
lump sum price of $875,000, and Ryll based its bid, in part, on this quote. The record 
indicates that Ryll did not execute any paperwork committing S&S to its quoted price. 
Ryll got off to a rocky start with prospective suppliers in getting them to sign on to 
the job. Upon being contacted by Ryll after award, the owner of S&S, Tim Eddy, told Ryll 
he had made a mistake and had failed to account for the cost of barging. 
4 He increased 
S&S’s quoted price to Ryll by approximately $50,000. Price negotiations ensued, but 
ultimately, Mr. Eddy decided that he did not want to do the project; he stopped returning 
Ryll’s telephone calls and did not show up for Ryll’s scheduled visit on August 18, 2007. 
Ryll contacted Drake Brothers Trucking, Inc. (DBT) to lease the crushing equipment 
and perform the crushing work, but did not enter into a rental agreement with DBT until 
August 16, 2007. DBT’s equipment sat for approximately thirteen days, until September 1, 
at Homer, while Ryll attempted to work out the details of the rental agreement and secure 
barging for the equipment to Naknek with Helen Drake, DBT’s owner and president. Ryll 
also started negotiating with BC Contractors, Inc. (BCC) to provide barging services. 
Ultimately, Ryll decided not to contract with BCC for barging services because it got a better 
price from Igiugig Transport Service (Igiugig) and because Igiugig offered its services on 
credit. 
3 In this contract, and during its administration, the terms “supplier” and 
“subcontractor” appear to have been used interchangeably. 
4 Mr. Dodd speculates that S&S’s Mr. Eddy decided to withdraw from the job 
because Ryll had won the contract in a competition against an Alaskan firm.  At the start of 
the contract, NPS’ Mr. Gavin also expressed concern about Ryll’s ability to obtain a 
subcontract with BCC and other suppliers because the sympathy of the contracting 
community in the area was with BCC, the local, unsuccessful bidder. Mr. Gavin expressed 
to COTR Hinz, “Sometimes using local contractors and knowledge is wise even though they 
are not the low bid.” According to Mr. Dodd, another subcontractor that Ryll wanted to use 
for clearing and grubbing told him that he would not submit a quote because “I have to live 
here and try not to step on any toes.” 

 
           
              
            
              
                 
              
            
                
              
             
                
               
              
        
                
             
             
        
              
              
                 
         
           
              
               
              
        
            
             
    
                
              
                
           
6 CBCA 1143 
During the time that it was attempting to find suppliers, Ryll spoke to the initial CO, 
Ms. Mahurin, about cash flow. Since Ryll was unfamiliar to Alaskan suppliers and the 
contract did not require contractor bonding, many of the suppliers Ryll contacted were 
unwilling to work with Ryll without a partial or complete payment. The contract provided 
that payment would not be made until the work was completed, but in an effort to assist Ryll 
with its cash flow problems, the CO offered to make a payment after mobilization. 
Ryll had not found a subcontractor to perform the crushing work when Ms. Ryll and 
Mr. Dodd visited the site for the first time on August 18, 2007, and met with NPS’ 
Mr. Gavin. On August 22, 2007, Ryll requested an extension of the contract completion 
date, alleging that it had experienced unusual delays and cost increases in entering into 
subcontracts. Ryll asked for additional time to provide its own barges to facilitate work. The 
new CO, Ms. Firestone, denied the request on August 27th, stating that there was no basis 
for the Government to extend the contract completion date and no way to compensate Ryll 
for the increase in prices it was experiencing. 
Although by August 13, 2007, Ryll had an early offer for the lease of a bulldozer and 
backhoe from L&M Equipment, Inc. (L&M), Ryll did not execute an agreement with L&M. 
After working out its difficulties in securing local barging transportation, on August 23, Ryll 
again contacted L&M, attempting to enter into a lease on the previously quoted equipment. 
L&M provided Ryll with a revised lease proposal on August 27; however, because Ryll had 
decided to use Igiugig instead of BCC for barging, L&M required a certificate of insurance 
to barge its equipment. 
5 On September 7, 2007, L&M told Ryll it would not lease the dozer 
and backhoe because Ryll did not have sufficient insurance. 
On September 11, 2007, the first load of equipment was barged from Lake Camp to 
Brooks Camp by Igiugig. Ryll rented a dozer and backhoe from Bristol Alliance Fuels, out 
of Dillingham, Alaska, on September 14, 2007. The dozer and backhoe did not arrive at 
Brooks Camp until September 17, and the rest of the equipment needed to complete the 
contract work did not arrive there until September 22. 
Ryll brought in Herman McConniel from Florida to be a working superintendent and 
to operate the backhoe and bulldozer on the project. As the working superintendent, 
Mr. McConniel testified that he was responsible for getting the equipment mobilized to the 
work site and into operation. Mr. McConniel was told by Mr. Dodd “to do whatever Dan 
5 At the time, David Lax was the chief operating officer of BCC and the 
president of L&M. Mr. Lax was not willing to allow L&M equipment to be barged without 
a certificate of insurance unless it was being barged by BCC. 

 
              
              
                 
                 
                
            
           
               
                
                 
              
               
              
               
              
               
                
              
              
             
               
              
 
             
     
              
         
             
               
               
            
          
             
       
7 CBCA 1143 
Drake [of DBT] needed to get the equipment in place.” Mr. McConniel considered Mr. 
Drake to be a professional crusher and as such, the individual responsible for doing the 
crushing part of the job. Mr. McConniel told Mr. Drake to set up his crushing equipment and 
begin crushing by October 1, but he noted that Mr. Drake did not appear to be in a hurry to 
set up his equipment at the work site and frequently stated that “there’s no point in setting 
it up . . . because the weather’s going to get us.” 
From Brooks Camp, there were more delays getting the necessary equipment to 
Moraine Pit because the road was too narrow to accommodate some of the equipment. Ryll 
made up to eleven requests for modifications to the road. The original requests, such as the 
one on August 20, 2007, dealt with cutting down 50-100 trees. The number of trees was later 
reduced to seven to ten, while later requests on September 3 and September 14, 2007, 
increased the scope of the modifications by seeking either to add aggregate or widen the road 
surface. The September 3 request for a contract modification to remove trees along the 
access road to Moraine Pit was granted on September 5. The September 14 request for 
temporary modifications to the access road was approved by NPS on September 19. During 
this dispute, Ryll alleged that access issues delayed the project, but at other points, Ryll stated 
that delay in mobilizing to the pit had nothing to do with issues associated with the access 
road. 
Once all of the equipment was at Moraine Pit, however, crushing still could not begin 
because of problems with the backhoe and the 988 loader’s steering box. Despite having 
concerns about DBT’s general willingness to perform, 
6 Mr. Dodd visited the job site on 
September 27, left before any crushing began, and did not return. Finally, by September 29, 
2007, the backhoe and loader were fixed, and DBT had finished setting up the crushing 
equipment. 
DBT began crushing material on Monday, October 1, 2007. Mr. Drake testified that 
he was not pleased with the quality of the gravel and felt there was too much dirt and silt in 
it to meet the contract’s specifications. After crushing began, the backhoe broke down again. 
According to Mr. Drake, without an operating backhoe, material could not be moved to the 
crusher and DBT could not safely crush material. Mr. McConniel disagreed, testifying that 
DBT was not stopped from crushing and that he was able to move sufficient material with 
his bulldozer to the crusher for DBT to continue its crushing efforts. On October 2, 
Mr. Drake stopped crushing and did miscellaneous repair and maintenance work on the 
6 During September, Mr. Drake was complaining on behalf of himself and 
another worker, Dusty Fultz, about the poor conditions at Squirrel Camp and threatening to 
quit if camp conditions were not improved. 

 
                 
               
  
              
                  
                
                
                
               
                    
                  
                 
 
                
                    
               
             
               
             
                 
                  
                 
                
                    
                  
               
                  
            
                 
          
            
              
            
            
                
8 CBCA 1143 
crusher while waiting for the backhoe to be fixed. From October 3 through 5 it rained and 
no work was performed. Mr. Drake spoke to Mr. Dodd about the backhoe repair problem 
and the rain: 
And it didn’t get done [the backhoe repair], it didn’t get done, it didn’t get 
done. I got tired of waiting. And I told Alan, I’m going to go. And that’s 
when Alan brought up – he said that there was a federal inspector . . . [who] 
was going to come out Wednesday . . . or the following week. And he wanted 
me to stay there for that deal. And by then, dealing with all Alan’s stories, I 
got down to where I didn’t believe Alan anymore. I mean it just didn’t get 
done. I was tired of waiting. And I told him I was going to go home. And he 
says, no, I’ll pay you to stay there. And I said, okay, if you’re going to pay me, 
I want 10 hours a day to sit here and watch the raindrops come down. And he 
said, okay. 
Ultimately, Ryll and DBT were not able to come to terms with how much Mr. Drake should 
be paid to stay on the job if he was not crushing material, and on October 4, 2007, Mr. Drake 
informed Mr. Dodd that because the backhoe was not fixed, his men were not working, and 
the conditions in the camp were not good, he was going home. 
Mr. Drake left the Park on October 6, 2007. He stated that “the rain was killing us” 
and “you can’t crush muck.” Before leaving, Mr. Drake discussed the situation with 
Mr. Gavin, who agreed that the work site was “a mess” and that DBT might be better off 
coming back in the spring to do the work. Mr. Gavin believed that the fall of 2007 was 
exceptionally wet, and he stated to Mr. Drake that “[i]t really looks stupid for you to stay here 
and just keep making a bigger mess.” However, Mr. Gavin cautioned Mr. Drake that he had 
no authority to tell Mr. Drake what to do or not to do. As Mr. Drake was leaving the Park, 
he asked Mr. Gavin to store DBT’s truck in the Park until he could retrieve it. Mr. Gavin 
drove DBT’s truck from where it was left and parked it at an appropriate place in the Park. 
Ryll also left equipment at the Park until it could retrieve the equipment the next spring. 
Ryll terminated its agreement with DBT on October 7, 2007, asserting that, among 
other things, DBT’s failure to perform put it in breach of the two firms’ agreement. In its 
termination notice Ryll set forth a litany of reasons DBT was in default, including the poor 
condition of the crusher equipment, Messrs. Drake’s and Fultz’s refusal to take direction, 
failure to cooperate, failure to be motivated, and essentially “dragging their feet on the job.” 
Ryll blamed DBT for delays in unloading and moving equipment, setting up equipment, 
creating a negative and stressful work environment by complaining daily and persistently to 
other Ryll personnel, and threatening to “walk off the job.” Once DBT left the project, Ryll 

 
                
        
               
             
              
            
            
               
               
 
             
            
          
          
               
              
              
                
     
 
            
               
               
              
                
       
             
                  
             
             
 
9 CBCA 1143 
decided to shut down its operations for the winter. 7 From October 7, 2007, Ryll’s equipment 
operators and cooks left the project site. 
From the time it began crushing on October 1, until it shut the project down on 
October 7, Ryll produced approximately 373 cy of crushed material. The material produced 
did not meet the specifications included in the contract, but was close to meeting the 
specifications, and according to COTR Hinz, would likely have been accepted by the 
Government. 
The next day, October 8, 2007, Ryll requested a contract modification seeking a 
twenty calendar day time extension to June 1, 2008, on the ground that it had encountered 
unusually severe weather on a daily basis from September l8 through October 7, 2007. It 
represented that: 
Given the capacity of equipment we have mobilized to the site to perform the 
work and given the quality of the pit materials requiring crushing we anticipate 
that required quantities of surface course aggregate and select borrow material 
can be provided within a twenty day time frame. 
Ryll submitted documentation in support of its request on October 9, 2007. That same day, 
Ron Jones, a FHWA project inspector, visited the site and opined that the weather had 
cleared for a while and the contractor could be crushing material. However, according to 
COTR Hinz, Mr. Jones noted that even on a “clear and sunny day,” the bottom of Moraine 
Pit was “wet and freezing.” 
Ryll informed FHWA that the agency might begin receiving calls from its suppliers 
regarding the date Ryll would receive payment, and urged FHWA to pay Ryll at the earliest 
possible date. 
8 FHWA made its first payment to Ryll earlier than required by the contract. 
Payment was made for mobilization costs in the amount of $504,596 on about October 7, 
2007. Shortly thereafter, on October 9, 2007, Ryll sent a notice to its suppliers stating that 
it was suspending payments to those suppliers. 
7 Also, on or about October 6, Ms. Drake e-mailed Ryll asking about a rumor 
that Ryll was trying to find someone else to operate the crusher it had rented from DBT. She 
told Ryll that DBT never rents the crusher without Mr. Drake as the operator. 
8 Under the contract, payment was not due until after delivery. 48 CFR 52.212­
4(I) (2007). 

 
           
              
               
               
      
              
               
                
     
             
           
              
             
            
            
              
           
          
            
           
              
              
              
      
          
          
              
             
              
             
              
  
10 CBCA 1143 
Assuming that this contract required Ryll to carry bonds, Ms. Drake frequently 
contacted CO Firestone to request her assistance in getting paid. DBT also retained an 
attorney to help it collect from Ryll. After DBT’s termination by Ryll, Mr. Drake contacted 
CO Firestone on October 9 and 10, explaining he had spoken with another supplier who told 
him that, based on a conversation that the supplier had with Ryll, Ryll would not be paying 
DBT because DBT had stopped crushing and was in breach of contract. On October 10, 
2007, CO Firestone notified Mr. Dodd that she had received phone calls from Mr. Drake and 
other suppliers about being paid. Mr. Dodd explained that he was talking to the suppliers and 
“trying to work things out.” 
A review of e-mail messages exchanged between Ryll and DBT around October 11, 
2007, shows that significant disagreements existed between the companies. For example, 
DBT took the position that payment for rental of the equipment was accruing until Ryll 
returned the equipment to DBT’s yard in Sterling, Alaska. Ryll alleged promissory fraud, 
asserting that DBT intentionally slowed the work and prevented Ryll from completing the 
crushing operations while weather was permitting, and left Ryll with equipment that was 
inoperable and without a crusher operator or a remedy to hire alternate operators. DBT 
countered that Ryll had failed to perform since September 18, 2007. 
To analyze whether Ryll encountered unusually severe weather from September l8 
through October 7, CO Firestone used weather records from the National Oceanographic and 
Atmospheric Administration (NOAA) and worked with COTR Hinz to analyze the weather 
conditions. The NOAA data was reviewed to see if the weather encountered during the 
period at issue was “more severe than the ranges of weather reasonably anticipated for the 
project location.” CO Firestone determined that the NOAA data for the period of September 
18 through October 7 showed, inter alia : 
The amount of precipitation was 147% of the ten year average. 
The number of days with measurable precipitation was 116% of average. 
The number of days with rain over ½ inch was 100% of average (one day). 
There were nine days where the rain amount was higher than the ten year 
average for that date (September 18, 20, 24, 26 through 28, 30, October 4 and 
5). 
There were eleven days when the rain amount was lower than the ten year 
average for that date (September 19, 21, 22 through 25, 29, October 1 through 
3). 

 
           
             
    
 
               
            
    
 
      
               
             
               
              
             
            
              
             
           
             
             
               
            
 
              
              
              
              
                  
            
           
           
             
               
              
11 CBCA 1143 
Seven of the days with higher than average precipitation (September 18, 20, 
24, 26 through 28, and 30) were prior to Ryll’s commencement of its crushing 
operations on October 1, 2007. 
After commencement of the crushing operations on October 1 until DBT left 
the site on October 6, two of the days [October 4 and 5] had higher than 
average precipitation and five days [October 1 through 3, 5, and 6] had lower 
than average precipitation. 
As a result of the NOAA data review, CO Firestone concluded that the weather was 
not more severe than the range of weather reasonably anticipated and that the weather did not 
actually cause Ryll’s failure to complete the project. CO Firestone also determined that, 
based on the ten year averages, the weather conditions for July and August of 2007 were 
more favorable than normal, with precipitation at 71% and 51% of the ten year average, 
respectively. The number of days of measurable precipitation were only 83% and 74%, 
respectively. 
The weather conditions for September 2007 were less favorable than normal, with the 
amount of precipitation 9% over the most recent four year average. However, the weather 
conditions for October 2007 were more favorable than normal, with precipitation at 96% of 
the ten year average and the number of days of measurable precipitation at 93%.  A review 
of Ryll’s test results from the material sampled during crushing operations also led CO 
Firestone to conclude that “precipitation did not hinder Ryll’s ability to crush since there 
were not too many fines on the smallest sieve.” In CO Firestone’s opinion, Ryll’s continued 
downtime after what it claimed was severe weather was unreasonable, since from October 
8 through 20 the precipitation was only twenty-nine percent of the ten year average and the 
number of days with measurable precipitation was sixty-five percent of the average. The CO 
summarized: 
It was not reasonable to start crushing on October 2, 2007, and to stop crushing 
on the very next day when the contract was awarded on July 13, crushing was 
permitted to begin on July 16, and the work was to be completed by October 
31. In my view, if Ryll was going to wait until so late in the season to crush, 
it should have been prepared to crush in the rain and freezing temperatures. 
The normal weather pattern is to have rain and freezing temperatures at night 
from October 8 . . . through the end of October. 
On or about October 18, 2007, CO Firestone determined that the weather did not 
support a claim for unusually severe weather. In a phone conference with Ryll held on 
October 19, 2007, CO Firestone and COTR Hinz explained that the data did not support 

 
             
              
                
              
               
                
             
    
            
            
              
              
                 
               
                
             
              
                 
            
               
             
               
            
              
            
        
              
  
       
              
               
                 
             
             
   
12 CBCA 1143 
Ryll’s claim for unusually severe weather and a contract extension was not supportable on 
the grounds proffered by Ryll. Apart from weather delay, the parties discussed other options 
for a contract extension that would allow Ryll to complete the contract in the spring of 2008. 
Since there was crushing equipment already on site, FHWA believed that Ryll would be able 
to complete the work in the spring, when the crushed material was needed for two upcoming 
Park projects. Ryll represented that it could complete the crushing by June 15, 2008. As 
consideration for the proposed contract extension, Ryll agreed to crush the select borrow to 
a different material specification. 
From October 15 though 30, DBT sent frequent e-mail messages and made numerous 
phone calls to CO Firestone, primarily complaining about the poor camp conditions and 
nonpayment issues it had with Ryll. In a telephone conversation held on October 30, 
Ms. Drake stated to CO Firestone that she would be charging equipment rental fees through 
the winter based on the terms of her agreement with Ryll. Mr. Drake claimed he was going 
to contact the Department of Labor about Ryll’s poor camp conditions. Also on October 30, 
Ms. Drake emailed CO Firestone a copy of the rental agreement between DBT and Ryll. 
CO Firestone notified Ryll more than once that DBT and other suppliers had contacted 
her regarding non-payment. In an October 30 conference call, CO Firestone again raised the 
issue. Ryll represented to her that it did not need DBT to complete the contract work because 
it could have another subcontractor crush the material. Despite this representation, Ryll 
knew, based on the terms of its subcontract with DBT, that it could not operate DBT’s 
crushing equipment without Mr. Drake. During the October 30 conference call CO Firestone 
verbally agreed to a contract modification to extend the completion date to June 15, 2008. 
CO Firestone first learned that Ryll terminated the DBT contract about one month 
after that termination had occurred and not from Ryll. On November 8, CO Firestone 
received information from the office of Senator Ted Stevens that indicated Ryll had 
terminated its contract with DBT on October 7, 2007. 
After learning that DBT’s contract had been terminated and Ryll no longer had access 
to DBT’s crushing equipment, CO Firestone notified Ryll that she was no longer willing to 
issue a contract modification extending the contract completion date to June 15, 2008. She 
explained that, based on the representations made by Ryll, without the use of the DBT 
crushing equipment, it appeared that Ryll would not be able to complete the contract by June 
15, 2008, even if an extension was granted. Asking it to show cause why the contract should 
not be terminated for cause pursuant to FAR 52.212-4(m), CO Firestone wrote Ryll on 
November 8 referring to the conversation she and COTR Hinz had with Ryll about 
completion of the project: 

 
           
               
              
               
              
         
             
              
    
               
           
          
              
              
               
            
      
                
             
            
            
            
              
         
               
             
           
                  
            
                
            
       
               
             
            
13 CBCA 1143 
During this discussion [held on October 30, 2007] you indicated that your 
crusher was in place and you would be ready to crush in May 2008 and be 
finished with the crushing in early June 2008. You also stated that the earliest 
any other contractor would be able to barge in a crusher would be in mid to 
late July. We expressed our concerns as to your being able to operate the 
crusher without Dan Drake. You told us that you had the right to operate the 
crusher with your own personnel and did not need to have Dan Drake operate 
the crusher. As a result of your assurances we verbally agreed to extend the 
contract to June 15, 2008. 
As it turns out on October 7, 2007, you sent a letter to [DBT] where you 
terminated your rental agreement for the crusher. This is critical information, 
which you withheld from our knowledge. With the rental agreement 
terminated, it does not appear that you have any legal right to use the crusher. 
Further, you have told us that you cannot get another crusher into the site until 
mid to late July 2008. Without access to a crusher and with no possibility of 
getting another crusher until July 2008, extending the time period to June 2008 
does not make any sense. 
As a result of this letter, Ryll began to negotiate a new rental agreement with DBT on 
or about November 9, 2007. Negotiations continued back and forth about monies already 
owed. While the record indicates that DBT contacted CO Firestone during these 
negotiations, there is no evidence that CO Firestone provided information or assistance to 
DBT. Her e-mail messages to DBT acknowledged DBT’s frustration but were noncommittal 
about her views of the situation. Ms. Drake e-mailed CO Firestone, explaining that she 
wanted to keep CO Firestone abreast of the negotiations. Ryll also informed CO Firestone 
that it was negotiating with DBT, and it provided her with information from the negotiations. 
Ryll represented that its request to continue work on the project to completion was 
premised on, among other things, “adequate assurances of performance based on promises 
made by Drake Brother [sic] . . . to return to work in May. Modifications to a finalized 
agreement are being worked out between the two companies in conjunction with legal 
counsel.” Id. As support for this assurance Ryll provided CO Firestone with a copy of 
DBT’s November 15, 2007 offer. DBT’s offer did not indicate that the parties had reached 
an agreement, but did indicate they were negotiating. 
CO Firestone told Ryll that she “would need to see a signed copy of an agreement 
[between Ryll and DBT] that shows there is an unconditional commitment to perform the 
work.” E-mail communications continued in which it appears CO Firestone attempted to 

 
               
                 
        
           
            
              
                 
              
                 
 
               
             
            
             
           
               
               
              
              
             
               
              
                
       
          
            
        
          
              
             
               
             
             
             
               
14 CBCA 1143 
broker a working relationship between DBT and Ryll so that Ryll could finish the work in 
the spring of 2008. CO Firestone asked Ms. Drake to continue to try to negotiate a solution 
with Ryll whereby DBT would finish the work. 
On November 18, 2007, DBT contacted Ryll, stating that its counter-offer was 
unacceptable and that DBT expected one month’s rent immediately before it would consider 
returning to the negotiations, because Ms. Drake was upset that DBT had not been paid 
despite the release of funds from the Government. She did not trust Ryll to pay and wanted 
money put in escrow for future payments. Soon thereafter, Ryll responded, claiming that all 
it could come up with was $35,010. On November 19, 2007, DBT responded to Ryll that it 
was willing to accept a reduced payment of $39,950, with the remaining balance to be paid 
before it remobilized. DBT stated it was unwilling to renegotiate the basic terms of the 
contract; it required more assurances regarding transport of its equipment after the work was 
done, but was willing to enter into an agreement based on Ryll’s representations. 
During the November 2007 negotiations with DBT, Ryll stated, as a condition for the 
issuance of a modification, FHWA demanded an unconditional guarantee of performance by 
DBT and Ryll. Ryll offered an up-front payment of $40,000 upon execution of the contract 
modification, and payment of the rest of the monies agreed to upon mobilization to the site. 
On November 23, 2007, Ryll e-mailed DBT and stated that the only issue remaining 
was liability insurance for the equipment and personnel, which it could not obtain. CO 
Firestone offered to help reach an accommodation by participating in a joint conference call 
between Ryll and DBT. On November 30, Ryll sent an entirely new proposal to DBT, 
proposing to use Ryll’s own operators for the crusher and paying only equipment rental fees 
to DBT. Ryll contended to DBT that the new proposal would allow Ryll to provide the 
unconditional performance guarantee demanded by the FHWA. DBT responded by asking 
for the correspondence from FHWA showing a requirement for an unconditional 
performance guarantee, but later that day DBT e-mailed Ryll, ending negotiations and stating 
that it would no longer correspond with Ryll. 
Ryll understood that DBT’s unwillingness to negotiate had made it essentially 
impossible for Ryll to complete the contract, and for several days in early December 2007, 
Ryll attempted to convince DBT to resume negotiations. Ryll sent new proposals, made 
attempts to contact DBT, and told DBT that Ryll could not complete the contract without its 
cooperation. On December 5, 2007, Ryll requested a meeting with CO Firestone and 
explained that DBT had decided not to participate in the planned conference call. 
Ryll and FHWA met in Vancouver, Washington on December 14, 2007. Ryll placed 
the blame for its current conditions on DBT by claiming DBT had cut off negotiations and 

 
            
            
               
      
              
            
           
           
             
              
            
 
               
           
               
   
              
             
             
             
             
               
               
           
             
               
  
           
             
              
 
             
                
               
   
             
              
15 CBCA 1143 
communication. Ryll accused DBT of stalling, delaying, leaving the project, and conspiring 
with everyone else against Ryll. A possible no-cost termination for convenience was 
discussed, but Ryll claimed it had lost $200,000 to $250,000 on the project and was unwilling 
to agree to a no-cost termination. 
On December 18, 2007, Ryll followed up the Vancouver meeting with a letter to CO 
Firestone citing an “overall thrust of local [Alaskan] contractors to interfere with contracts 
awarded to outsiders”; detailing the difficulties it had encountered with obtaining local 
barging transportation, with equipment rental, and with DBT; and alleging that the 
“deliberate overt and covert actions” of others to derail this project prevented it from 
completing the work. Ryll accused Mr. Drake of leaving the job site despite repeated 
requests to move forward with work, insisting that weather conditions precluded further work 
efforts until the spring, and forcing Ryll to shut down operations and remove all personnel. 
Ryll also accused DBT of stalling work through various strategies. Ryll noted that it had 
been unsuccessful in obtaining an unconditional commitment from DBT to complete the 
work in the spring of 2008, but did not mention weather or government interference as being 
delaying factors.  Ryll requested that the Government issue a “termination for convenience 
with costs,” with the Government paying Ryll its costs of $118,032.74 in addition to the 
$504,596 already paid. CO Firestone rejected Ryll’s proposal on December 19, 2007, stating 
that the Government would only accept a proposal for a no-cost termination for convenience; 
without such a proposal, she saw no option other than a termination for cause. 
In a January 7, 2008, letter to FHWA, Ryll again requested a termination for 
convenience with costs. Among the reasons given, Ryll asserted that it could not absorb “the 
loss of both the amounts it had expended and not been reimbursed by the government of 
approximately $180,000 and realistic value of materials and services provided in the 
approximate amount of $120,000.” In closing, Ryll wrote that its “financial difficulties had 
been caused by the apparent collusion of certain companies and are not the fault of the 
Government.” (emphasis added). 
In deciding how to proceed with this contract, CO Firestone considered various 
factors in determining whether terminating Ryll’s contract was in the best interest of the 
Government. Her review included the factors set forth in FAR 49.402-3(f). Among other 
things, she evaluated when the work needed to be completed and, given its location, how it 
could be completed. Further, on January 9, 2008, CO Firestone contacted DBT about 
completing the work, but DBT stated it could not complete the work because it did not have 
bonding capacity. CO Firestone reviewed the reasons Ryll gave for its failure to perform the 
work and decided they did not excuse its default.  Finding that Ryll’s failure to perform the 
work was not excusable, on January 10, 2008, CO Firestone terminated Ryll’s contract for 
cause. As grounds for termination for cause, she cited Ryll’s “failure to complete the 

 
             
              
               
             
              
           
             
            
             
            
                
              
            
             
              
              
                
      
                   
             
             
           
             
            
             
                  
   
 
           
             
             
               
            
        
16 CBCA 1143 
contract by the contract delivery date or to adequately assure the government of future 
performance (propose an acceptable plan to complete the contract).” She told Ryll to remove 
all its equipment from Moraine Pit to designated pullouts by April 30, 2008, and then to 
remove its equipment from the Park as a whole by July 31, 2008. 
On April 7, 2008, Ryll appealed the termination for cause to the Civilian Board of 
Contract Appeals, and a hearing was held in March of 2010. 
Discussion 
The contract between Ryll and FHWA provides that if the contractor fails to comply 
with the contract or give adequate assurances of future performance, the Government may 
terminate the contract for cause. An exception is enunciated: if the contractor’s 
nonperformance is caused by an occurrence beyond the contractor’s reasonable control and 
without its fault or negligence, the contractor may not be liable for default. Ryll has offered 
several grounds to rebut the Government’s position that the termination for cause was proper, 
including that: 1) the specifications were defective; 2) the contractor’s delays were excusable 
because of a) unusually severe weather and b) the Government’s failure to provide permits, 
delaying access to the site; 3) the Government failed to share its superior knowledge about 
access and that BCC had previously bid on the project; and 4) government employees, acting 
in bad faith, hindered Ryll’s performance. Ryll has not proven any of these allegations. Ryll, 
having terminated the subcontract of its crusher, DBT, was unable to complete the contract 
in a timely manner or assure the CO that it would be able to do so even with a twenty-day 
extension. 
The window of performance for the contract, July 16 to October 31, 2007, was 
adequate. Ryll’s unsuccessful performance of the contract and its troubled relations with its 
Alaska subcontractors appears to have been primarily the result of insufficient preparations 
prior to bidding on the contract and unfamiliarity with the Alaskan locale and conditions. 
Ryll had significant problems lining up subcontractors in order to acquire the necessary 
equipment and transportation. It did not make a comprehensive effort to obtain suppliers 
prior to bidding. For example, when it chose not to execute the written quote by S&S, it was 
left scrambling for suppliers. 
Ryll finally contracted with DBT for the necessary equipment to complete the 
contract. The relationship between these two firms was not smooth, however. Mr. 
McConniel, Ryll’s working superintendent, reported that Mr. Drake of DBT was in no hurry 
to set up his equipment and was fatalistic about incoming bad weather. In September, Mr. 
Drake complained about poor conditions at Squirrel Camp. However, Squirrel Camp was 
inspected by the Government on September 12, 2007, and was found to be sufficient for its 

 
                   
              
           
              
        
             
        
             
               
              
           
            
             
       
            
           
               
               
          
               
              
                
               
       
               
                
              
              
    
    
  
 
             
    
            
17 CBCA 1143 
purposes. DBT finally left the site after a dispute over pay. It does not appear that the camp 
conditions and weather or the dispute over pay hours gave DBT license to abandon the 
subcontract. The Alaska Department of Labor agreed; its investigation determined that 
Drake had “left the jobsite without good reason.” DBT, of course, was Ryll’s chosen 
subcontractor. Its actions cannot be attributed to FHWA. 
Had DBT not walked off the job, the contract potentially could have been completed 
before the expiration date. The weather substantially improved later in October, and while 
the 373 cy of completed crushed material did not meet the contract’s specifications, they 
came close. Mr. Hinz, the COTR, believed that the material would have been accepted by 
the Government. Thus, it was DBT’s abandonment that was the proximate cause of the 
contract breach. What followed were extensive, painstaking negotiations mediated by CO 
Firestone that ultimately broke down. FHWA and Ryll discussed a termination for 
convenience in which neither side would pay any additional money, but Ryll demanded a 
termination for convenience with the Government paying additional costs. On January 10, 
2008, CO Firestone rejected Ryll’s request and terminated the contract for cause. 
The question presented by this appeal is whether the Government properly terminated 
Ryll’s contract for cause. A termination for cause is the equivalent of a termination for 
default, so we apply the same legal standards to both types of cases. Business Management 
Research Associates, Inc. v. General Services Administration , CBCA 464, 07-1 BCA 
¶ 33,486, at 165,990. The Government bears the burden of proving by a preponderance of 
the evidence that the termination for cause was proper. Lisbon Contractors, Inc. v. United 
States , 828 F.2d 759 (Fed. Cir. 1987) . If the Government establishes a prima facie case that 
its termination was proper, the burden shifts to Ryll to rebut the Government’s case. Keeter 
Trading Co. v. United States , 79 Fed. Cl. 243, 253 (2007) . Here, the contract required Ryll 
to produce 5750 cy of select borrow and 12,700 cy of surface course aggregate by October 
31, 2007, which it failed to do. This failure to complete the contract established a prima 
facie case that the termination for cause was justified and is the “good grounds” and “solid 
evidence” necessary for termination. J. D. Hedin Construction Co. v. United States , 408 F.2d 
424, 431 (Ct. Cl. 1969). 
We examine now the assertions Ryll makes in an effort to rebut FHWA’s reason for 
terminating the contract. 
Defective Specification 
The performance period for the crushing project was from July 16, 2007 to October 
31, 2007.  Appellant argues that the specification defining the contract performance period 
was defective because the performance period specified represented to the contractor that it 

 
             
           
           
            
              
            
                
                
 
          
           
             
                
             
 
            
    
   
   
    
               
              
              
             
             
                
          
 
               
         
            
              
                
        
18 CBCA 1143 
was feasible to perform work through the end of October, and Alaska’s construction season 
is generally considered to end in late September or early October. 
The contract completion date is not a warranty by the Government guaranteeing 
completion within the specified performance period. American Ship Building. Co. v. United 
States , 654 F.2d 75, 78-79 (Ct. Cl. 1981). A prospective contractor, before agreeing to 
perform, must examine the complexity of the contract requirements and its own capabilities, 
and then make a business judgment as to whether it could complete the work within the time 
allowed by the contract. Id. For appellant to place this burden on the Government is 
inappropriate. 
Appellant has acknowledged that Mr. Gavin, as the Government’s local expert, 
responded to Ryll’s inquiries regarding all aspects of the undertaking, including sending 
geotechnical information, well in advance of Ryll’s bidding the project. As a contractor 
starting a project in a new location, Ryll should have known either to ask Mr. Gavin when 
the Alaskan construction season was expected to end, or to conduct such simple research 
itself. 
Appellant’s contract performance period ran for 108 days. Ryll estimated that it 
would take twenty to twenty-three days to perform the actual rock crushing. Appellant has 
further stated that while it took fifteen days to mobilize the equipment, given good weather 
conditions and no other delays, only five days should have been required to mobilize to the 
site.  Even if appellant needed a full fifteen days each for mobilization and demobilization, 
along with twenty-three days for crushing, that adds up to only fifty-three days. This would 
have left Ryll with an additional twenty-four days before the end of September to contract 
with suppliers, an action which already should have been in an advanced stage through pre-
bid consultation and negotiation, and to move supplier equipment to Naknek. That would 
still leave the thirty-one days of October for finishing work and demobilizing the equipment 
from Katmai if the contract fell behind schedule. Even if adverse weather was a problem in 
September, the specification defining the contract performance period was not defective. 
Adverse Weather 
Ryll asserts that it is entitled to have its termination for default set aside because of 
the provision for “unusually severe weather” contained in the excusable delay clause of the 
contract. Appellant insists that despite the challenges it faced during mobilization, it was 
positioned to complete the work within the contract period, but was thwarted by bad weather 
and the subsequent saturated condition of the materials to be crushed. Ryll states that it is 
“undisputed” that it encountered significant adverse weather conditions between 

 
            
             
                
               
             
               
                
            
             
            
    
                
    
             
       
               
           
               
           
  
              
 
            
              
   
            
              
           
          
             
            
        
              
              
19 CBCA 1143 
September 18, and October 7, 2007, during mobilization and performance of the contract 
work. 
Unusually severe weather is construed to mean adverse weather which at the time of 
year in which it occurred is unusual for the place in which it occurred. Broome Construction 
Inc. v. United States , 492 F.2d 829, 835 (Ct. Cl. 1974). Unusually severe weather is 
determined based on a comparison of the conditions experienced by the contractor and the 
weather conditions of prior years. Edge Construction Co. v. United States , 95 Fed. Cl. 407, 
420 (citing Cape Ann Granite Co. v. United States , 100 Ct. Cl. 53, 71–72 (1943)). A review 
of the ten year average of weather conditions for October demonstrates that while 
precipitation for September 2007 in Katmai was above normal, in October 2007 it was 
slightly below. This analysis is more comprehensive and compelling than Ryll’s more 
anecdotal analysis, and was further confirmed by DOT’s Inspector, Ron Jones, who visited 
the site on October 9, 2007, and noted that the weather had cleared and that the contractor 
could have resumed crushing. 
Between October 1 and October 7, 2007, Ryll produced 373 cy of crushed material 
that almost met the material specifications included in the contract.  Had DBT stayed at the 
camp, it is entirely possible that later in October, when the weather had cleared, Ryll would 
have been able to complete crushing the material to adequate specifications within the time 
frame of the contract. The adverse weather earlier in the time period afforded Ryll for 
performance was not severe enough to warrant a finding of excusable delay. 
Site Access Delays 
Ryll asserts that its project work was delayed by the failure of the Government to 
timely provide permits for cutting trees and modifying the access road to Moraine Pit.  The 
Government must not only refrain from hindering the contractor’s performance; it must also 
act in cooperation with the contractor. Lewis-Nicholson, Inc. v. United States , 550 F.2d 26, 
32 (Ct. Cl. 1977); George A. Fuller Co. v. United States, 69 F. Supp. 409, 411-12, (Ct. Cl. 1947). 
Ryll alleges that it was the Government’s delay in granting permits and authorization 
for the alterations that caused Ryll’s delay, since without guarantee of access it could not 
afford the risk of signing contracts with suppliers. Mr. Dodd testified that he made at least 
eleven specific communications between July 18 and September 19, 2007, requesting 
authorization to make road alterations. Moreover, Ryll asserts that it could not move 
preparatory equipment for clearing and grubbing until it had assurances that all project 
equipment and supplies could be moved to the site. This assertion is strongly belied by the 
record: Ryll signed a rental agreement with DBT on August 16, 2007, and had equipment 
shipped to Naknek on September 1, 2007. Appellant’s first load of equipment arrived in 

 
              
     
              
             
               
              
        
             
            
 
            
               
             
                
             
            
             
                
               
             
              
  
              
 
              
            
             
                
             
     
  
            
              
                 
20 CBCA 1143 
Brooks Camp on September 11, 2007, and on September 14, 2007, Ryll secured all the 
equipment required for the project. 
The import of eleven requests to the Government over the course of two months is 
lessened because the requests did not follow contract procedure and changed over time from 
cutting down trees to adding aggregate. It appears that each request made by Ryll was 
resolved by the Government well within the contractual time limit. In two e-mail messages, 
appellant admitted that the delay in mobilization was unconnected to issues with the access 
road. The record generally demonstrates that the Government made a sincere effort to 
comply with appellant’s requests and did not hinder or impede appellant’s full mobilization. 
Superior Knowledge 
Under the superior knowledge doctrine, a contractor can recover for breach of contract 
based upon the failure of the Government, as a party to the contract, to disclose vital 
information concerning the performance of the contract. Hardwick Brothers Co., II v. United 
States , 36 Fed. Cl. 347, 386 (1996), aff’d , 168 F.3d 1322 (Fed. Cir. 1998) (table). Appellant 
alleges that the Government knew or should have known of difficulties regarding site access, 
but withheld that knowledge, impeding Ryll in completing its work. Undisclosed superior 
knowledge is negated when the contractor could have obtained such information from a pre-
bid site visit that it chose not to make, or made without sufficient care. See Ambrose-
Angusterfer Corp. v. United States , 394 F.2d 536 (Ct. Cl. 1968). Mr. Gavin testified that 
access to the Katmai site via commercial aircraft was possible by mid-May. Thus, this 
allegation fails because Ryll could have visited the site, examined the road, and drawn its 
own conclusions. 
Appellant also states that the Government failed to inform it of the critical fact that 
a local contractor, BCC, had bid on the project, was highly motivated to acquire the award, 
and was the primary supplier of equipment and barging that Ryll needed to perform the 
contract. However, other suppliers were clearly available; this is known because Ryll 
eventually contracted with them. Finally, the Government’s knowledge of the “mood” of the 
locale does not constitute vital knowledge. If this was as obvious a factor in Ryll’s problems 
as the contractor alleges, it must have been common knowledge available to anyone who 
made reasonable inquiry into local conditions. 
Government Bad Faith 
An implied provision of every contract, including one between an individual and the 
Government, is that neither party will do anything to prevent performance by the other party 
or will hinder or delay the other party in its performance. Lewis-Nicholson , 550 F.2d at 32. 

 
              
           
           
            
              
              
          
                 
          
             
              
              
            
                 
                 
                   
            
    
           
                
             
               
            
                
              
                
         
      
      
              
           
           
          
21 CBCA 1143 
Contractors who allege bad faith on the part of government officials, as appellant does here, 
must prove their assertions through clear and convincing evidence. Am-Pro Protective 
Agency, Inc. v. United States , 281 F.3d 1234, 1239-40 (Fed. Cir. 2002) . 
Appellant asserts that its work was impeded by the actions of government employees, 
such as Mr. Gavin, the onsite representative, because he supported DBT’s effort to leave the 
work area. However, there is no evidence that Mr. Gavin engaged in favoritism towards 
DBT or any other contractor, at the expense of Ryll, nor is there evidence that he attempted 
to sabotage or delay Ryll. Further, Mr. Gavin was not responsible for the road access delays. 
Appellant’s allegations of collusion are simply unsupported by the facts. 
Appellant asserts that CO Firestone acted in bad faith when she denied Ryll’s requests 
for an extension of performance time in August or a termination for convenience with costs. 
Ryll argues that CO Firestone did not investigate Ryll’s complaints of price gouging. There 
is sharp disagreement between Mr. Dodd and Mr. Eddy of S&S as to whether local barging 
up the Naknek River to Brooks Camp was taken into account in the quote Ryll used in its 
contract bid. Regardless, Ryll did not execute a subcontract based on the S&S quote. In fact, 
it appears that Ryll did not have a firm plan in place upon award of the contract, and was left 
scrambling to engage subcontractors. The CO’s decision to deny appellant’s August 2007 
time extension request was justified. 
Appellant next argues that CO Firestone improperly inserted herself into the conflict 
between Ryll and DBT. To the contrary, we find that the CO extended herself to defuse 
tensions between the two firms. She listened to complaints, showed concern, and remained 
neutral. She offered to help the parties communicate. In the interest of completing the 
project, she indicated her desire that they reconcile and did not take sides. 
Ryll further accuses the CO of bad faith in failing to make payment in response to 
Ryll’s second payment application in October 2007. However, it was the COTR, Mr. Hinz, 
acclaimed by Ryll in its brief as an “honest witness, who could not be cajoled into falsely 
testifying for the government,” and who “had no agenda,” who informed Ryll that he could 
not approve its second invoice for payment. 
Appellant next argues that the e-mail message from Senator Stevens’ office was the 
proximate cause of CO Firestone’s retraction of her verbal agreement with Ryll for a contract 
extension. Appellant’s generalized and unsupported accusations of political pressure fail to 
demonstrate lack of independent judgment, especially since CO Firestone still allowed Ryll 
an additional month to demonstrate that it could complete the project. 

 
           
        
               
            
          
           
               
             
             
            
        
            
    
   
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22 CBCA 1143 
Finally, Ryll asserts that CO Firestone sabotaged negotiations between Ryll and DBT 
by requiring an unconditional commitment to complete the job.  But the remote location of 
the site in Katmai was such that another subcontractor could not be easily engaged by Ryll 
to take over crushing operations. Requiring an unconditional commitment from DBT was 
reasonable in light of the difficulties between Ryll and DBT. 
We conclude that CO Firestone had a reasonable, contract-related basis to support 
termination for cause. Ryll failed to complete the contract despite the CO’s best efforts to 
mediate negotiations between appellant and its subcontractors. It is notable that in Ryll’s 
January 7, 2008, letter to FHWA requesting a termination for convenience with costs, the 
contractor wrote that its “financial difficulties have been caused by the apparent collusion 
of certain companies and are not the fault of the government.”  While Ryll’s problems with 
its subcontractors were highly unfortunate, the responsibility for those problems does not lie 
with the Government. 
Decision 
Ryll’s appeal is DENIED . 
CANDIDA S. STEEL 
Board Judge 
We concur: 
_____________________________ ________________________________ 
STEPHEN M. DANIELS H. CHUCK KULLBERG 
Board Judge Board Judge