DENIED:  August 15, 2024
CBCA 7824
BLUEICE CONSTRUCTION LLC,
Appellant,
v.
DEPARTMENT OF THE INTERIOR,
Respondent.
Bryan B. Arnold of Gordee, Nowicki & Blakeney LLP, Irvine, CA, counsel for
Appellant.
Lindsay Cronin, Office of the Regional Solicitor, Department of the Interior,
Anchorage, AK, counsel for Respondent.
Before Board Judges BEARDSLEY (Chair), SHERIDAN, and KULLBERG.
SHERIDAN, Board Judge.
The issue presented by this appeal is whether the contracting officer properly
terminated the contract for cause.  As BlueIce Construction LLC (BlueIce) did not complete
the contract during the period of performance and has presented no compelling reasons
excusing its nonperformance, BlueIce’s termination for cause was proper and is upheld.
The appeal was submitted for decision on the written record pursuant to Rule 19 (48
CFR 6101.19 (2023)).


CBCA 7824 2
Background
On September 23, 2022, the Bureau of Land Management (BLM), a component of
the Department of the Interior (DOI), awarded an $86,412 commercial services contract to
BlueIce to remove and replace the glycol in the heating system of building 1003 at Fort
Wainwright, Alaska.  The contract incorporated Federal Acquisition Regulation (FAR)
52.212-4(m) (48 CFR 52.212-4(m) (2022)), which provides, “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 . . . .”
The contract stipulated:  “Any additional work/cost above the obligated amount must
be approved via modification by a warranted contracting officer prior to commencement or
the vendor does so at their own risk/expense.”  The statement of work (SOW) required
BlueIce to:  (1) drain glycol from the heating system; (2) flush the system with cleaner;
(3) install new 50/50 glycol solution; and (4) perform quarterly sampling for one year.  The
SOW provided that, “[w]hen removing old glycol, it must be verified that all heating system
coils/components have been properly drained of old glycol.”  The SOW also provided that
after the trisodium phosphate (TSP) cleaning solution circulated through the system for
twenty-four hours, “it must be verified that all system coils/components have been properly
drained of the TSP solution before any new glycol is introduced into the system.”
The notice to proceed established a ninety-day contract performance period,
September 23 to December 23, 2022.  The contract was transmitted to BlueIce by email,
and both identified Mike Wise as the Government’s point of contact (POC).  Mr. Wise was
BLM’s maintenance mechanical supervisor; he had no contracting authority to obligate
funds or modify the contract.  The contract did not designate a contracting officer’s
representative.
In its opposition to DOI’s motion for summary judgment, filed before the parties
elected to submit this case for decision on the written record, BlueIce submitted a declaration
by Ron Tash, an employee of Reagent World, Inc., which is a sister company of BlueIce that
provides management services to BlueIce.  Declaration of Ron Tash (Dec. 6, 2023) (Tash
Declaration) ¶ 1.  Mr. Tash stated that he called Mr. Wise in October 2022 to ask some
questions regarding the work.  Id. ¶ 5.  Mr. Tash claimed that, during the call, Mr. Wise told
him that every heating system component, coil, and part on each floor had to first be drained
of glycol and tested on each floor.  Id. ¶ 6.  According to Mr. Tash, Mr. Wise said that
BlueIce would have to make sure, on a floor-by-floor basis, that the TSP had been removed
from each heating system component and coil.  Id.  In a February 3, 2023, email to the
contracting officer, BlueIce alleged, instead, that its “technicians were informed onsite by
the POC” of the increased contract requirements.  A February 9, 2023, email from BlueIce
to the contracting officer similarly stated that, “when our technicians were onsite discussing

CBCA 7824 3
the scope with the POC, the POC informed our technician that we had to flush each floor
with the solution, clean each component[] of the system.”
In support of its motion for summary judgment, DOI submitted a declaration by Mr.
Wise that contradicts the allegations of BlueIce and Mr. Tash.  Declaration of Michael D.
Wise (Nov. 3, 2023) (Wise Declaration).  Mr. Wise stated that “[t]he heating system in
Building 1003 is a single heating system for the entire four-story building.  To remove and
replace the glycol requires one flushing process for the entire system.  There is no
requirement to flush the glycol one floor at a time.”  Id. ¶ 5.  Although Mr. Wise
acknowledged that he had one telephone conversation, on October 21, 2022, with Mr. Tash,
id. ¶ 3, he declared that “[a]t no point have I represented to anyone, including any BlueIce
representative, that the heating system needs to be flushed separately for each individual
floor.”  Id. ¶ 7.  He further stated that, “[t]o [his] knowledge, no BlueIce representative
[came] onsite to Building 1003, which is a secured facility and requires escorted access.” 
Id. ¶ 4.  Mr. Wise verified with the housing manager that no visits had taken place without
the maintenance shop being notified and with the maintenance shop staff that they had not
walked anyone through without his knowledge.
BlueIce asserts that it spent November and December 2022 trying to find a way to
remove and replace glycol on a floor-by-floor basis.  Tash Declaration ¶ 9. 
The contracting officer reached out to BlueIce on November 14, 2022, requesting a
status update on its progress.  BlueIce did not respond.  In fact, nothing in the record
supports the conclusion that BlueIce communicated with any DOI or BLM representatives
during the entire period of performance, with the sole exception of the phone call between
Messrs. Tash and Wise on October 21, 2022.  BlueIce declares that it attempted to contact
the contracting officer in December to discuss the project, but its phone calls were not
returned.  Tash Declaration ¶ 11.
The contract’s period of performance ended on December 23, 2022.  On
December 29, 2022, the contracting officer received a voice mail from Mr. Tash stating that
he wanted to discuss “the glycol project.”  The contracting officer did not return that call
because she was in the middle of drafting a determination and findings memorandum for a
termination for cause and “the phone call came after the end of the period of performance.”
The contracting officer noted in her determination memorandum in support of the
termination for cause that BlueIce had “failed to perform within the required time frame.” 
She further noted that when she contacted BlueIce six weeks before the end of the
performance period, BlueIce failed to respond.  She stated that BlueIce had not asserted any
type of excusable delay and determined it was in the best interest of BLM to terminate the
contract for cause because BLM needed the service to be completed in a timely manner.

CBCA 7824 4
On January 23, 2023, the contracting officer sent a show cause notice to BlueIce,
noting that BlueIce had failed to perform within the time required by the contract’s terms. 
She informed BlueIce that she was considering a termination for cause but gave it the
opportunity “to present, in writing, any facts bearing on the question to the Contracting
Officer within 10 days after receipt of th[e] notice.”  The contracting officer wrote that a
failure to present reasonable justification within the ten days could be considered an
admission that a justification does not exist.  BlueIce did not respond in writing to the order
to show cause.  The termination for cause was issued on April 24, 2023, citing “[f]ailure to
perform requirements within the time required by the [contract’s] terms.”
It is clear from the record that BlueIce did not complete the work within the
performance period.  Notably, February 2023 appears to be the first time BlueIce alleged to
the contracting officer that there had been a change in the contract’s scope.  During a
February 8, 2023, telephone call with the contracting officer, BlueIce alleged that Mr. Wise
had directed a change in the contract’s scope of work.  A February 3, 2023, email from
BlueIce to the contracting officer also referenced this purported change.
Discussion
The question presented by this appeal is whether BLM properly terminated BlueIce’s
contract for cause.  A termination for cause is the equivalent of a termination for default, and
the same legal standards apply to both.  Geo-Marine v. General Services Administration,
GSBCA 16247, 05-2 BCA ¶ 33,048, at 163,829.  A termination for cause is a drastic action
that should only be undertaken for “good grounds and on solid evidence.”  ACM
Construction & Marine Group, Inc. v. Department of Transportation, CBCA 2245, et al.,
14-1 BCA ¶ 35,537, at 174,150.  Under FAR 52.212-4(m), the termination for cause clause
for commercial services contracts, the Government has the initial burden of proving that the
termination for cause was valid.  Packer v. Social Security Administration, CBCA 5038, et
al.,16-1 BCA ¶ 36,260, at 176,899 (quoting KSC-TRI Systems USA, Inc., ASBCA 54638,
06-1 BCA ¶ 33,145, at 164,260 (2005)).  If the Government presents a prima facie case that
the termination was proper, the burden then shifts to the contractor.  ACM Construction,
CBCA, 14-1 BCA at 174,150 (citing CDA, Inc. v. Social Security Administration, CBCA
1558, 12-1 BCA ¶ 34,990, at 171,971; Integrated Systems Group v. Social Security
Administration, GSBCA 14054-SSA, 98-2 BCA ¶ 29,848, at 147,742).  Once the
Government has shown that a contractor did not complete its contract in a timely manner,
the contractor has the burden of proving that its failure to perform was excusable.  Ucensys
Research Corp. v. Nuclear Regulatory Commission, CBCA 4241, 19-1 BCA ¶ 37,402, at
181,816 (citing DCX, Inc. v. Perry, 79 F.3d 132, 134 (Fed. Cir. 1996)).  “A contractor must
show, through evidence, how an occurrence or event that, in the right circumstances, could
support an excusable delay actually affected the contractor and caused its inability timely to
perform.”  INQEM LLC v. Department of Health & Human Services, CBCA 7645, 23-1

CBCA 7824 5
BCA ¶ 38,428, at 186,772 (citing Adventus Technologies, Inc. v. Department of Agriculture,
CBCA 7283, 23-1 BCA ¶ 38,392, at 186,544).
The Government has met its burden to present a prima facie case that BlueIce failed
to perform the contract within the required period and that the termination for cause was
proper.  BlueIce did not perform any work onsite.  Blue Ice failed to respond to either the
contracting officer’s request for a status update or her subsequent show cause notice.  In fact,
there is no evidence in the record that BlueIce communicated with the contracting officer
during the period of performance.  Aside from initiating one phone call in October 2022 and
making what appears to be meager attempts to find a local vendor to perform the services,
BlueIce did not make any substantive effort to perform under the contract.
BlueIce has failed to prove that its failure to perform was excusable.  BlueIce argues
that it would have completed the work had it not been misled by Mr. Wise.  BlueIce’s
assertion, however, that Mr. Wise changed the scope of the work during the October 2022
telephone call is contradicted by BlueIce’s emails alleging that the conversation regarding
contract scope took place in-person with BlueIce’s technicians.  Not only does BlueIce’s
recitation of events in the emails seem unlikely given that BlueIce representatives were never
onsite, but Mr. Wise disputes that he ever discussed a change in the scope of work with
BlueIce.  Even if he did, Mr. Wise did not have the authority to change the terms or
requirements of the contract.  See Vet4U, LLC v. Department of Veterans Affairs, CBCA
5387, 19-1 BCA ¶ 37,336, at 181,579.  Certainly, BlueIce never timely raised its concerns
with the contracting officer, who had authority to interpret and change the contract.  We find,
therefore, that the Government did not change the contract’s scope to require a floor-by-floor
replacement of the glycol (rather than through a single building flush, as provided in the
SOW).
BlueIce argues that the contracting officer abused her discretion in issuing the
termination for cause because it was “based on erroneous information and a revised
interpretation of the SOW that was not shared with BlueIce.”  Appellant’s Rule 19 Brief at 7. 
This Board’s standard of review for the contracting officer’s decision is:
In determining whether the decision . . . was so arbitrary or capricious as to
constitute an abuse of discretion [the Board] will consider— “(1) evidence of
subjective bad faith on the part of the government official, (2) whether there
is a reasonable, contract-related basis for the official’s decision, (3) the amount
of discretion given to the official, and (4) whether the official violated an
applicable statute or regulation.”
Optimum Services, Inc. v. Department of the Interior, CBCA 4968, 19-1 BCA ¶ 37,383, at
181,735 (quoting AFR & Associates, Inc. v. Department of Housing & Urban Development,

CBCA 7824 6
CBCA 946, 09-2 BCA ¶ 34,226, at 169,169 (quoting McDonnell Douglas Corp. v. United
States, 182 F.3d 1319, 1326 (Fed. Cir. 1999))).
The contracting officer’s decision to terminate BlueIce was not arbitrary or capricious
and did not constitute an abuse of discretion.  There was no evidence of bad faith, and the
contracting officer had a reasonable, contract-related basis for the decision to terminate the
contract.  BlueIce points only to communications with the contracting officer after the period
of performance ended and no work had been completed by BlueIce.  Had BlueIce responded
to the contracting officer in November 2022, confusion regarding the scope of work could
easily have been resolved.  We conclude that the contracting officer did not abuse her
discretion, and the termination for cause was proper based on BlueIce’s failure to perform
any work on the contract.
Decision
We DENY the appeal.
    Patricia J. Sheridan      
PATRICIA J. SHERIDAN
Board Judge
We concur:
    Erica S. Beardsley              H. Chuck Kullberg         
ERICA S. BEARDSLEY H. CHUCK KULLBERG
Board Judge Board Judge