RESPONDENT’S MOTION FOR IMMEDIATE DISMISSAL AND TO
STRIKE AFFIRMATIVE DEFENSES DENIED; CASES CONSOLIDATED:
September 10, 2021
CBCA 6683, 6762, 6919, 6920, 6921, 7025, 7026
4K GLOBAL-ACC JOINT VENTURE, LLC,
Appellant,
v.
DEPARTMENT OF LABOR,
Respondent.
Karl Dix, Jr., Lochlin B. Samples, Jonathan R. Mayo, and Gesue A. Staltari of Smith,
Currie & Hancock LLP, Atlanta, GA, counsel for Appellant.
Willow Eden Fort, Office of the Solicitor, Department of Labor, Nashville, TN; and
José Otero, Joshua L. Caplan, Jonathan I. Pomerance, and C. Cleveland Fairchild, Office of
the Solicitor, Department of Labor, Washington, DC, counsel for Respondent.
Before Board Judges BEARDSLEY (Chair), LESTER, and KULLBERG.
LESTER, Board Judge.
Appellant, 4K Global-ACC Joint Venture, LLC (4KG-ACC), has requested that, in
accordance with the settlement of its monetary claims with respondent, the Department of
Labor (DOL), the Board dismiss five of the seven appeals that remain pending before the
Board.  In their settlement agreement, the parties agreed that those five dismissals would not
become effective until the day after the two other, remaining appeals – one a challenge to
DOL’s default termination decision, and the other a challenge to DOL’s contractor
performance assessment rating (CPAR) evaluation of 4KG-ACC’s work on the contract –


CBCA 6683, 6762, 6919, 6920, 6921, 7025, 7026 2
are finally resolved.  DOL now objects to the continued presence of the five settled appeals
on the Board’s docket and seeks their immediate dismissal.  In response, 4KG-ACC says
that, because the allegations in the claims underlying those five appeals constitute affirmative
defenses to DOL’s unresolved default termination challenge and the CPAR evaluation,
4KG-ACC would be prejudiced by their immediate dismissal, citing to the requirements for
affirmative defenses that involve a contract adjustment, as the United States Court of Appeals
for the Federal Circuit discussed in M. Maropakis Carpentry, Inc. v. United States, 609 F.3d
1323 (Fed. Cir. 2010).
For the reasons set forth below, we consolidate the seven appeals at issue here, deny
DOL’s request for an immediately effective dismissal of five of the appeals, and deny DOL’s
motion to strike, which seeks to preclude 4KG-ACC from relying upon any affirmative
defenses in defending against DOL’s default termination decision or in challenging the
CPAR evaluation based upon an alleged lack of notice.
Background
Between December 16, 2019, and January 8, 2021, 4KG-ACC filed a total of
twenty-three appeals with the Board involving disputes arising out of contract no. 1630DC-
17-C-0024 (the contract) for the construction of a new Atlanta Job Corps Center.  In the
first-filed appeal, docketed as CBCA 6683, 4KG-ACC challenged a DOL contracting
officer’s final decision terminating the contract for default.  In another appeal, CBCA 7025,
4KG-ACC challenged the agency’s unsatisfactory CPAR evaluation of its performance on
the contract.  The other twenty-one appeals – two of which, CBCA 6832 and 6838,
4KG-ACC voluntarily withdrew in July 2020 – all involve monetary claims that 4KG-ACC
had submitted to the contracting officer, seeking damages from DOL for increased costs
totaling just over $10 million, allegedly incurred under the contract for varying reasons.  The
Board consolidated some of the appeals, while others were not consolidated.
In February 2021, the parties jointly requested that the Chair of the Board assign a
judge to serve as Board Neutral to provide mediation services for these appeals.  Through the
resulting mediation, the parties on May 24, 2021, entered into a settlement agreement
resolving all of 4KG-ACC’s monetary claims against DOL but leaving open for further
litigation CBCA 6683 (the default termination appeal) and CBCA 7025 (the CPAR
challenge) as well as any affirmative defenses associated with those two claims, as follows:
For its part, [4KG-ACC] reserves, does not waive, and may continue to pursue
the Default Appeal and the CPAR Claim (CBCA 6683 and 7025,
respectively), including affirmative defenses relevant to the Default Appeal
and the CPAR Claim . . . .

CBCA 6683, 6762, 6919, 6920, 6921, 7025, 7026 3
Settlement Agreement ¶ 3.a.  In the settlement agreement, the parties agreed to request that
all but five of the appeals involving 4KG-ACC’s monetary claims be dismissed immediately. 
With regard to those last five monetary claim appeals, docketed as CBCA 6762, 6919, 6920,
6921, and 7026 (collectively, the “affirmative defense appeals”), the parties agreed that those
appeals should be dismissed but with a deferred effective date tied to the final resolution of
CBCA 6683 (the default termination appeal) and 7025 (the CPAR appeal):
The effective date of the dismissal with prejudice of the Monetary Claims shall
be the date of filing of [4KG-ACC’s] aforementioned notice or motion to
dismiss, with the exception of only CBCA Appeals 6762, 6919, 6920, 6921,
and 7026 (the “Affirmative Defense Appeals”). . . . With regard to the
Affirmative Defense Appeals the effective date of the dismissal with prejudice
shall be the very next day after the resolution by the Board, or by an appellate
body if there is an appeal, of the Default Appeal (CBCA 6683) and the CPAR
Claim (CBCA 7025), or other such final and terminal resolution.
. . . The postponement of the effective date of dismissal of the Affirmative
Defense Appeals is being agreed to by DOL only in order to alleviate
[4KG-ACC’s] concerns that the Board or an appellate body may question the
jurisdiction of [4KG-ACC’s] affirmative defenses to CBCA 6683 and/or
CBCA 7025 if the dismissal of these Affirmative Defense Appeals is effective
immediately.  Neither Party concedes the jurisdiction of any appeal or any
affirmative defense.
Settlement Agreement ¶ 7.a, .b.  On June 14, 2021, 4KG-ACC filed a motion seeking
immediate dismissal of all monetary claims other than the five affirmative defense appeals
carved out in the settlement agreement, for which it sought a deferred dismissal effective
date.
By order dated June 29, 2021, the Board granted 4KG-ACC’s request to dismiss all
of the appeals involving 4KG-ACC’s monetary claims, other than the five affirmative
defense appeals.  The Board deferred dismissing the five affirmative defense appeals because
the Board was uncertain how to issue a dismissal order that would not become final until
after decisions in CBCA 6683 and 7025 became final (inclusive of any appeals of decisions
by the Board in CBCA 6683 and 7025 to the Federal Circuit).  The Board asked the parties
to explain how the Board procedurally could issue such a dismissal order.
In response, on July 7, 2021, DOL filed a motion asking the Board to “strike” any
affirmative defenses that 4KG-ACC might try to raise in CBCA 6683 or 7025 because “the
affirmative defense appeals contain no properly pled affirmative defenses to preserve.” 
Respondent’s Motion to Strike (July 7, 2021) at 3.  In accordance with Board Rule 6(a)

CBCA 6683, 6762, 6919, 6920, 6921, 7025, 7026 4
(48 CFR 6101.6(a) (2020)), 4KG-ACC, rather than DOL, originally filed the complaints in
CBCA 6683 and 7025.  DOL complained that 4KG-ACC did not label anything in its
complaints as an affirmative defense and, therefore, waived its right to raise affirmative
defenses in any challenge to the default termination or the CPAR evaluation.  In a later-filed
reply brief, DOL argued that, since there are no viable affirmative defenses, “the Board
should give immediate effect to the [settlement] agreement and dismiss CBCA Nos. 6762,
6919, 6920, 6921, and 7026 in their entirety and with prejudice, as there is no basis for them
to continue to exist following dismissal.”  Respondent’s Reply Brief (Aug. 23, 2021) at 2.
In none of the briefing did either party explain how the Board could issue dismissals
in the five affirmative defense appeals now that would not become effective until CBCA
6683 and 7025 are finally resolved.  Currently, CBCA 6683, 7025, and 7026 are independent
appeals while CBCA 6762, 6919, 6920, and 6921 are consolidated.
Discussion
In their settlement agreement, the parties agreed to request that the Board dismiss
CBCA 6762, 6919, 6920, 6921, and 7026, but with a deferred effective date tied to the final
resolution of the two remaining appeals, CBCA 6683 and 7025.  The agreement identifies
no procedure by which the Board is expected to implement that request.
Typically, orders that the Board issues dismissing appeals are effective upon issuance,
subject to any appellate review deadlines.  To the extent that there is any authority under the
Contract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109 (2018), for the Board to issue some
type of “conditional” dismissal subject to the later finality of another appeal, the parties have
not cited it.  We need not evaluate whether any such authority exists because we can
effectuate the intent behind the parties’ settlement by consolidating the seven related appeals
that remain before the Board and allowing 4KG-ACC to litigate the affirmative defense
aspects of the five affirmative defense appeals while any monetary aspects of those appeals
remain dormant as settled.
Consolidation is appropriate if cases involve common issues of fact or law and if
interests of judicial economy outweigh the potential for delay, confusion, and prejudice. 
Harris IT Services Corp. v. Department of Veterans Affairs, CBCA 5814, et al., 17-1 BCA
¶ 36,901.  Plainly, those requirements are satisfied here.  Once these seven cases are
consolidated, we can tie any dismissal of the five affirmative defense appeals to the
resolution of the two appeals still to be adjudicated.  The disputes underlying the five
affirmative defense appeals support 4KG-ACC’s affirmative defenses in the default
termination and CPAR evaluation appeals.  They remain relevant, and cannot be considered
finally decided or resolved, until 4KG-ACC’s defenses in CBCA 6683 and 7025 are
resolved.  Although the mere fact of consolidation does not completely eliminate the separate

CBCA 6683, 6762, 6919, 6920, 6921, 7025, 7026 5
nature of distinct appeals, we cannot dismiss an appeal in which some part of the underlying
dispute is still active.  See Hall v. Hall, 138 S. Ct. 1118, 1131 (2018) (only “when one of
several consolidated cases is finally decided,” through issuance of a decision resolving that
one case, is “a disappointed litigant free to seek review of that decision in the court of
appeals.”).  Because the five affirmative defense appeals involve still-active disputes that
support 4KG-ACC’s default termination and CPAR evaluation appeals, the Board
consolidates CBCA 6683, 6762, 6919, 6920, 6921, 7025, and 7026 for all purposes and
defers dismissal of the five affirmative defense appeals pending resolution of the default
termination and CPAR evaluation appeals.
DOL argues that the five affirmative defense appeals are essentially moot because the
monetary aspect of the claims underlying them has been resolved, eliminating the Board’s
jurisdiction to entertain them and making consolidation unnecessary.  “A matter becomes
‘moot when the issues presented are no longer “live” or the parties lack a legally cognizable
interest in the outcome.’”  Sylvan B. Orr v. Department of Agriculture, CBCA 5299, 16-1
BCA ¶ 36,522 (quoting NEC Corp. v. United States, 151 F.3d 1361, 1369 (Fed. Cir. 1998)
(quoting Powell v. McCormack, 395 U.S. 486, 496 (1969))).  In light of the Federal Circuit’s
decision in Maropakis, 4KG-ACC has understandable concerns about its ability to maintain
its affirmative defenses if the five affirmative defense appeals are dismissed immediately,
even though the monetary aspects of those appeals are settled.  In Maropakis, the contractor
made factual allegations about delays, impacts, and disruptions for which the Government
was allegedly responsible to establish excusable delay as a defense to the Government’s
liquidated damages claim against the contractor.  The Federal Circuit barred the contractor
from pursuing that excusable delay defense, holding that a contractor, if “asserting [a] claim
against the government . . . as a defense to a government action” that would require “an
adjustment of contract terms,” has to “meet the jurisdictional requirements and procedural
prerequisites of the CDA” before raising it.  Maropakis, 609 F.3d at 1331.  Because the
contractor in Maropakis had not submitted a certified claim to the contracting officer for the
alleged government-caused delays, impacts, and disruptions, all of which would have been
considered changes to the contract at issue there, the contractor was not allowed to raise them
as defenses to the Government’s liquidated damages claim.
Concerned that the dismissal of its five affirmative defense appeals might preclude
it from raising its affirmative defenses in CBCA 6683 and 7025, 4KG-ACC negotiated a
settlement with DOL that deferred the dismissal of the affirmative defense appeals until the
default termination and CPAR evaluation appeals were finally resolved.  Given the role that
the five affirmative defense appeals play in 4KG-ACC’s ability to defend against DOL’s
default termination action, those appeals are not moot simply because the parties have
resolved the monetary portion of the claims underlying those appeals.  The factual disputes
in the five affirmative defense appeals remain live while 4KG-ACC is litigating CBCA 6683
and 7025.

CBCA 6683, 6762, 6919, 6920, 6921, 7025, 7026 6
DOL goes one step further in one of its motions and argues that the parties actually
settled all of 4KG-ACC’s affirmative defenses.  See Respondent’s Motion to Strike at 4
(asking the Board to order that “all . . . affirmative defenses in the Affirmative Defense
Appeals have been settled and resolved”).  Yet, in the settlement agreement, 4KG-ACC
expressly reserved “affirmative defenses relevant to the Default Appeal and CPAR Claim.” 
Settlement Agreement ¶ 3.a.  4KG-ACC agreed only “that all Monetary Claims, including
but not limited to the monetary portions of the Affirmative Defense Appeals, . . . are fully
satisfied and settled” and that it would “not attempt to revive any demand for compensation
under any Monetary Claim.”  Id. ¶ 7.c (emphasis added).  4KG-ACC is using what remains
of the five affirmative defense appeals to defend against DOL’s default termination, which
is clearly something that the settlement agreement contemplates, and not to seek additional
compensation.  DOL’s argument that 4GK-ACC released its affirmative defenses ignores the
plain language of the settlement agreement that it executed.
DOL also argues that we should “strike” 4KG-ACC’s affirmative defenses because
they were not properly labeled as “affirmative defenses” in the complaints that 4KG-ACC
filed in CBCA 6683 and 7025 and that, since they were not properly preserved, immediate
dismissal of the five affirmative defense appeals is warranted.  Although a default
termination is a Government claim, which the Government has the burden to prove, Malone
v. United States, 849 F.2d 1441, 1443 (Fed. Cir. 1988), 4KG-ACC, rather than DOL, filed
the notices of appeal, as well as (consistent with Board Rule 6(a)) the complaints, in CBCA
6683 and 7025.  Although the Board sometimes orders the Government to file the complaint
in an appeal involving a default termination, see Ralph Muhammad v. Department of Justice,
CBCA 5188, 16-1 BCA ¶ 36,267; Northrop Grumman Corp., DOT BCA 4041, 99-1 BCA
¶ 30,191 (1998), neither party requested a change from the regular Board Rule 6(a) practice,
meaning that 4KG-ACC never filed answers in CBCA 6683 or 7025 in which it would have
listed affirmative defenses.
Despite that fact, 4KG-ACC’s complaints provided DOL with ample notice of
4KG-ACC’s defenses to the default termination.  In its complaint in CBCA 6683, which
addresses the default termination, 4KG-ACC alleged in paragraphs 49, 50, 61, 62, 73, 76
through 79, and 86, among others, that DOL had improperly failed to pay outstanding pay
applications and wrongfully withheld significant payments for completed work, which
allegedly devastated 4KG-ACC, its subcontractors, and overall job progress.  Those
allegations are in line with four of the five affirmative defense appeals at issue here and the
certified claims underlying them:  CBCA 6762 involves allegations that DOL materially
breached the contract by improperly withholding amounts undisputedly owed to 4KG-ACC,
and CBCA 6919, 6920, and 6921 involve allegations that DOL materially breached the
contract by improperly objecting to pay applications related to, and withholding amounts
owed to, 4KG-ACC for stored materials and work-in-place.  In addition, the complaint in
CBCA 6683 is replete with additional allegations that DOL took unwarranted actions and

CBCA 6683, 6762, 6919, 6920, 6921, 7025, 7026 7
made constructive changes that caused delays to the project.  Those allegations are consistent
with the final affirmative defense appeal, CBCA 7026, which alleges that DOL
constructively changed the contract in ways that excusably delayed 4KG-ACC’s
performance.  In fact, two of the counts in 4KG-ACC’s CBCA 6683 complaint are
specifically titled “Failure to Pay” and “Cardinal Change.”  As for CBCA 7025, its complaint
merges and overlaps its allegations with those of CBCA 7026.  “The purpose of [pleading]
affirmative defenses . . . ‘is to give the opposing party notice of the affirmative defense and
a chance to respond.’”  A-Son’s Construction, Inc. v. United States, CBCA 3491, 15-1 BCA
¶ 36,089 (quoting Ultra-Precision Manufacturing, Ltd. v. Ford Motor Co., 411 F.3d 1369,
1376 (Fed. Cir. 2005) (quoting Smith v. Sushka, 117 F.3d 965, 969 (6th Cir. 1997))). 
4KG-ACC’s complaints in CBCA 6683 and 7025 provide such notice.  The fact that
4KG-ACC did not label these allegations “affirmative defenses” in the complaints is of no
consequence.  By arguing to the contrary, DOL incorrectly places form over substance.
DOL finally argues that if the Board does not immediately dismiss the five affirmative
defense appeals and instead consolidates them with CBCA 6683 and 7025, the Board’s
action “could be misconstrued and create confusion,” Respondent’s Motion to Strike at 4,
with the result that 4KG-ACC might ultimately try to relitigate the monetary settlement to
which the parties have already agreed.  DOL’s concern is unfounded.  4KG-ACC has settled
the monetary aspects of these appeals.  The only disputes that remain for the Board to resolve
are the validity of DOL’s default termination and 4KG-ACC’s CPAR evaluation challenge,
inclusive of any affirmative defenses associated with those issues.  We encourage the parties
to develop those issues expeditiously.
Decision
For the foregoing reasons, CBCA 6683, 6762, 6919, 6920, 6921, 7025, and 7026 are
CONSOLIDATED for all purposes.  DOL’s motions to strike 4KG-ACC’s affirmative
defenses in CBCA 6683 and 7025 and immediately to dismiss the five affirmative defense
appeals (CBCA 6762, 6919, 6920, 6921, and 7026) are DENIED.  The Board will issue an
order dismissing the five affirmative defense appeals as part of the final resolution of CBCA
6683 and 7025.
    Harold D. Lester, Jr.      
HAROLD D. LESTER, JR.
Board Judge

CBCA 6683, 6762, 6919, 6920, 6921, 7025, 7026 8
We concur:
    Erica S. Beardsley              H. Chuck Kullberg         
ERICA S. BEARDSLEY H. CHUCK KULLBERG
Board Judge Board Judge