United States Court of Appeals 

for the Federal Circuit ______________________ 

SECURIFORCE INTERNATIONAL AMERICA, LLC,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Cross-Appellant

______________________ 

2016-2589, 2016-2633

______________________ 

Appeals from the United States Court of Federal 

Claims in No. 1:12-cv-00759-MBH, Judge Marian Blank 

Horn.

______________________ 

Decided: January 17, 2018

______________________ 

 FREDERICK W. CLAYBROOK, JR., Claybrook LLC, 

Washington, DC, argued for plaintiff-appellant. Also 

represented by BRIAN TULLY MCLAUGHLIN, Crowell & 

Moring, LLP, Washington, DC; ROBERT JOHN WAGMAN,

JR., Bracewell LLP, Washington, DC.

 PATRICIA M. MCCARTHY, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, Washington, DC, argued for defendant-crossappellant. Also represented by CHAD A. READLER, ROBERT 

E. KIRSCHMAN, JR., RUSSELL JAMES UPTON, JEFFREY 
2 SECURIFORCE INTERNATIONAL v. UNITED STATES

LOWRY; JILL BUCHOLZ RODRIGUEZ, Defense Logistics 

Agency, Ft. Belvoir, VA.

______________________ 

Before DYK, O’MALLEY, and WALLACH, Circuit Judges.

DYK, Circuit Judge.

Securiforce International America, LLC (“Securiforce”), a government contractor, filed suit in the Court of 

Federal Claims (“Claims Court”) under the Tucker Act, 28 

U.S.C. § 1491, and the Contract Disputes Act of 1978 

(“CDA”), 41 U.S.C. §§ 7101-09. It sought a declaration 

that its contract for fuel delivery was improperly terminated by the Defense Logistics Agency (“DLA” or the 

“government”)—in part for the government’s convenience 

and in part for default. The Claims Court held that the 

CDA provided it with jurisdiction over both terminations; 

that the termination for convenience was improper; and 

that the termination for default was proper. Securiforce 

Int’l Am., LLC v. United States (Securiforce I), 125 Fed. 

Cl. 749 (2016). The Claims Court also denied Securiforce’s posttrial sanctions motions. Securiforce Int’l Am., 

LLC v. United States (Securiforce II), 127 Fed. Cl. 386 

(2016).

We affirm the Claims Court’s determinations except

its determination that it had jurisdiction to adjudicate an 

affirmative, declaratory claim with respect to the termination for convenience; on that one issue, we vacate the 

judgment of the Claims Court and remand with directions 

to dismiss. 

BACKGROUND

In September 2011, Securiforce entered into a requirements contract with the government to deliver fuel 

to eight sites in Iraq. Shortly after the contract was 

executed, on September 26, the government terminated

the contract for convenience with respect to two of the 
SECURIFORCE INTERNATIONAL v. UNITED STATES 3

eight sites (the “termination for convenience”). Because 

Securiforce intended to supply fuel from Kuwait, the 

government concluded that delivery to those two sites 

without an appropriate waiver would have violated the 

Trade Agreements Act of 1979 (“TAA”), 19 U.S.C. §§ 2501-

81, and that obtaining a waiver would have taken too 

long. 

Thereafter, in mid-October, the government placed 

oral orders for small deliveries to two of the remaining 

sites, the deliveries to occur by October 24. In the weeks 

that followed, however, Securiforce informed the government that it would not be able to deliver until, first, early 

and, then, late November. Losing confidence that Securiforce would be able to make the deliveries, the government sent Securiforce notice that it should offer justifiable 

excuses for its delays or risk a termination for default. 

Securiforce responded, contending that various government breaches excused the late deliveries, including the 

allegedly improper termination for convenience, the 

failure to provide required security escorts, the small size 

of the orders, and other alleged irregularities attributable 

to the government. Unpersuaded, the government terminated the remainder of the contract for default on November 15 (the “termination for default”).

Securiforce filed its initial complaint in the Claims 

Court the following year, on November 6, 2012, requesting declaratory relief that the termination for default was 

improper. On November 16, Securiforce sent the government a letter requesting a final decision by the contracting officer (“CO”) that the termination for convenience 

was improper. On January 16, 2013, the CO denied 

Securiforce’s request because it did not seek damages in a 

sum certain, and on January 23 Securiforce amended its 

complaint in the Claims Court to include an additional 

request for declaratory judgment that the termination for 

convenience was improper. 
4 SECURIFORCE INTERNATIONAL v. UNITED STATES

Following a bench trial, the Claims Court issued its 

findings of fact and conclusions of law. Securiforce I, 125 

Fed. Cl. 749. The court found that it had jurisdiction to 

review Securiforce’s claims concerning both the termination for convenience, id. at 764-81, and the termination 

for default, id. at 788. Reaching the merits of the termination-for-convenience claim, the court found the CO 

abused her discretion in partially terminating the contract for convenience and, in doing so, breached the government’s contract with Securiforce. Id. at 781-87. The 

court then found the termination for default proper, 

rejecting Securiforce’s claim that its nonperformance 

could be excused by the government’s actions, id. at 787-

99, and explaining that Securiforce’s failure to perform 

“was a product of its own making,” because it had failed to 

make proper and timely arrangements to acquire and 

deliver fuel, id. at 793. In a follow-up opinion, the court 

denied Securiforce’s posttrial sanctions motions. Securiforce II, 127 Fed. Cl. 386.

Securiforce timely appealed, and we have jurisdiction 

pursuant to 28 U.S.C. § 1295(a)(3).

DISCUSSION

We review the legal conclusions of the Claims Court 

de novo and its findings of fact for clear error. Rasmuson 

v. United States, 807 F.3d 1343, 1345 (Fed. Cir. 2015).

I 

A 

We first consider whether the Claims Court had subject-matter jurisdiction to review the termination for 

convenience. “Whether the Court of Federal Claims had 

jurisdiction under the CDA is a question of law we decide 

de novo,” K-Con Bldg. Sys., Inc. v. United States, 778 F.3d 

1000, 1004 (Fed. Cir. 2015), but “we review the trial 

court’s findings of fact relating to jurisdictional issues for 

clear error,” John R. Sand & Gravel Co. v. United States, 
SECURIFORCE INTERNATIONAL v. UNITED STATES 5

457 F.3d 1345, 1353 (Fed. Cir. 2006), aff’d, 552 U.S. 130 

(2008). The plaintiff bears the burden of establishing 

jurisdiction by a preponderance of the evidence. Brandt v. 

United States, 710 F.3d 1369, 1373 (Fed. Cir. 2013).

 “A prerequisite for jurisdiction of the Court of Federal Claims over a CDA claim is a final decision by a contracting officer on a valid claim.” Northrop Grumman 

Computing Sys., Inc. v. United States, 709 F.3d 1107, 

1111-12 (Fed. Cir. 2013); see also 28 U.S.C. § 1491(a)(2); 

41 U.S.C. § 7104(b)(1). Because the CDA does not define 

“claim,” we look to the Federal Acquisition Regulation

(“FAR”), which defines a claim as “a written demand or 

written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum 

certain, the adjustment or interpretation of contract 

terms, or other relief arising under or relating to th[e] 

contract.” FAR 52.233-1(c); see also J.A. 789 (incorporating this clause into Securiforce’s contract). We have 

explained that for monetary claims, the absence of a sum 

certain is “fatal to jurisdiction under the CDA.” Northrop, 

709 F.3d at 1112; accord M. Maropakis Carpentry, Inc. v. 

United States, 609 F.3d 1323, 1327-29 (Fed. Cir. 2010). 

Relatedly, “once a claim is in litigation, the contracting 

officer may not rule on it—even if the claim . . . was not 

properly submitted to and denied by the contracting 

officer before it was placed in litigation.” K-Con, 778 F.3d 

at 1005.

The government offers two alternative arguments 

against the Claims Court’s jurisdiction, both based on 

Securiforce’s purported failure to obtain a final decision 

from the CO before bringing its claim into court. First, 

the government contends that the filing of Securiforce’s 

initial complaint in the Claims Court ousted the CO of 

authority to decide the claim presented in Securiforce’s 

subsequent letter. Second, the government argues that

even if the CO had authority to decide the claim, Securiforce failed to state a sum certain in its letter to the CO,
6 SECURIFORCE INTERNATIONAL v. UNITED STATES

as required by the CDA. Because we agree with the 

government on the second of these points, we need not 

reach the first.

As noted above, Securiforce submitted a letter to the 

CO concerning the termination for convenience on November 16, 2012, ten days after it filed its initial complaint in the Claims Court. Securiforce’s letter to the CO

did not state a sum certain but rather purported to seek 

only a declaration that the termination for convenience 

constituted a material breach of the contract. The Claims 

Court determined that it had jurisdiction because this 

“letter constituted a valid claim to the contracting officer 

for non-monetary relief.” Securiforce I, 125 Fed. Cl. at 

775. We disagree.

While contractors may in some circumstances properly seek only declaratory relief without stating a sum 

certain, they may not circumvent the general rule requiring a sum certain by reframing monetary claims as nonmonetary. In a related context, we have been careful to 

recognize this distinction. The Administrative Procedure 

Act (“APA”) provides a cause of action for nonmonetary 

claims against the government, 5 U.S.C. § 702, so long as 

“there is no other adequate remedy in a court,” id. § 704. 

The Tucker Act, however, provides exclusive jurisdiction 

in the Claims Court for monetary claims exceeding 

$10,000. See 28 U.S.C. §§ 1346(a)(2), 1491(a)(1). The 

question in many of our prior cases, then, has been 

whether a given claim is properly classified as monetary 

or nonmonetary. We and other courts of appeals have 

consistently held that litigants may not avoid the Claims 

Court’s exclusive jurisdiction by dressing up monetary 

claims in other courts as requests for nonmonetary,

declaratory relief under the APA. Doe v. United States, 

372 F.3d 1308, 1313 (Fed. Cir. 2004) (collecting cases).

In making this determination, “we customarily look to 

the substance of the pleadings rather than their form.” 
SECURIFORCE INTERNATIONAL v. UNITED STATES 7

Brazos Elec. Power Coop., Inc. v. United States, 144 F.3d 

784, 787 (Fed. Cir. 1998). If “the only significant consequence” of the declaratory relief sought “would be that 

[the plaintiff] would obtain monetary damages from the 

federal government,” the claim is in essence a monetary 

one. Id. We see no reason to depart from this principle

here, when determining whether a claim is monetary or 

nonmonetary for purposes of CDA jurisdiction.

Securiforce’s claim concerning the termination for 

convenience, although styled as one for declaratory relief, 

would—if granted—yield only one significant consequence: it would entitle Securiforce to recover money 

damages from the government. This is confirmed by 

Securiforce’s own letter, which asked the CO to decide 

whether “Securiforce is entitled to breach damages,” 

without specifying an amount. J.A. 139. Indeed, following the Claims Court’s ruling, Securiforce sent an additional letter to the CO, for the first time quantifying its 

damages as $47 million. Securiforce’s failure to present 

this sum certain to the CO in its November 2012 letter 

rendered its claim insufficient. The Claims Court erred in 

finding that, “notwithstanding [the government]’s argument that [Securiforce]’s claim is monetary, the evidence 

. . . indicates that [Securiforce’s letter to the CO] was a 

claim for non-monetary relief.” Securiforce, 125 Fed. Cl. 

at 770; see also John R. Sand, 457 F.3d at 1353. Therefore, based on these errors, the Claims Court was without

jurisdiction to entertain Securiforce’s declaratoryjudgment claim with respect to the termination for convenience. 

Securiforce argues that this result is inconsistent with 

the text of the Tucker Act, which provides jurisdiction 

over “a dispute concerning termination of a contract . . . 

and other nonmonetary disputes on which a decision of 

the contracting officer has been issued.” 28 U.S.C. 

§ 1491(a)(2). This language was added by amendment in 

1992 in order to ensure Claims Court jurisdiction over 
8 SECURIFORCE INTERNATIONAL v. UNITED STATES

some nonmonetary disputes. See, e.g., Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1268-70 (Fed. 

Cir. 1999); Garrett v. Gen. Elec. Co., 987 F.2d 747, 750 

(Fed. Cir. 1993) (citing Federal Courts Administration Act 

of 1992, Pub. L. No. 102-572, sec. 907(b)(1), § 1491(a)(2), 

106 Stat. 4506, 4519). However, this jurisdictional 

amendment did not relieve parties’ obligation to comply 

with the separate requirements of the CDA, including the 

statement of a sum certain where, as here, the party is in 

essence seeking monetary relief. Having failed to comply 

with those requirements, Securiforce could not invoke the 

Claims Court’s jurisdiction over its affirmative termination-for-convenience claim. 

Even if Securiforce’s claim were properly characterized as nonmonetary, the Claims Court could not properly 

exercise jurisdiction over an affirmative declaratoryjudgment claim that the government breached the contract by terminating for convenience. While declaratory 

judgments are not precluded from the Claims Court’s 

CDA jurisdiction, it is not always appropriate for the 

Claims Court to consider them. See Alliant, 178 F.3d at 

1271. Indeed, the Claims Court has “discretion to grant 

declaratory relief only in limited circumstances” during 

contract performance, including when there is “a fundamental question of contract interpretation or a special 

need for early resolution of a legal issue.” Id.; see also

Tiger Nat. Gas, Inc. v. United States, 61 Fed. Cl. 287, 292 

(2004) (“The Federal Circuit added that the legislative 

history of the 1992 amendments to the Tucker Act did not 

justify precluding a contractor from seeking a declaratory 

judgment for an ongoing performance issue.”). In those 

narrow circumstances, the court “is free to consider the 

appropriateness of declaratory relief, including whether 

the claim involves a live dispute between the parties, 

whether a declaration will resolve that dispute, and 

whether the legal remedies available to the parties would 
SECURIFORCE INTERNATIONAL v. UNITED STATES 9

be adequate to protect the parties’ interests.” Alliant, 178 

F.3d at 1271.

This case epitomizes a circumstance where “the legal 

remedies . . . would be adequate to protect [Securiforce’s] 

interests.” Id. Unlike prior cases where we have determined that the Claims Court had jurisdiction over requests for declaratory judgments, see, e.g., Todd Constr., 

656 F.3d at 1308-11; Alliant, 178 F.3d at 1271-72, Securiforce seeks a declaration that the government materially 

breached the contract, J.A. 134, 139. However, “damages 

are always the default remedy for breach of contract.” 

United States v. Winstar Corp., 518 U.S. 839, 885 (1996) 

(plurality op.). A contractor’s request for a declaratory 

judgment that the government materially breached a 

contract by terminating for convenience thus would 

violate “the traditional rule that courts will not grant 

equitable relief when money damages are adequate.” 

Alliant, 178 F.3d at 1271.

Therefore, we conclude that the Claims Court erred in 

adjudicating Securiforce’s convenience-termination claim.

B 

Although we find the Claims Court lacked jurisdiction 

over the declaratory-judgment claim concerning the 

termination for convenience, the question remains whether it could review that termination as a defense to the 

termination for default. In this respect, the Claims Court 

held that the termination was improper but that the 

improper convenience termination provided no defense to 

the default termination. Securiforce I, 125 Fed. Cl. at 

781-88. Securiforce contends that the improper convenience termination was a prior material breach, excusing 

Securiforce’s later failure to perform. See, e.g., Laguna 

Constr. Co. v. Carter, 828 F.3d 1364, 1369 (Fed. Cir. 2016)

(describing the common-law defense of prior material 

breach). The government argues that this defense (like 

the affirmative declaratory-judgment claim) could not be 
10 SECURIFORCE INTERNATIONAL v. UNITED STATES

asserted in the Claims Court without first being presented to the CO for a final decision. For support, the government relies on our prior cases Maropakis, 609 F.3d 

1323, and Raytheon Co. v. United States, 747 F.3d 1341 

(Fed. Cir. 2014). 

In Maropakis, the contractor claimed that its contract 

should have been modified by extending certain deadlines 

and that this constituted an affirmative defense to the 

government’s liquidated-damages claim. 609 F.3d at 

1327-32. We held that the CDA’s jurisdictional prerequisite—i.e., that the parties first present their claims to a

CO for a final decision—applied to the contractor’s affirmative defense. Id. at 1329-32. “Thus, we h[e]ld that a 

contractor seeking an adjustment of contract terms must 

meet the jurisdictional requirements and procedural 

prerequisites of the CDA, whether asserting the claim 

against the government as an affirmative claim or as a 

defense to a government action.” Id. at 1331. Similarly, 

in Raytheon, the government claimed an equitable adjustment as a defense to a contractor’s monetary claim. 

See 747 F.3d at 1353-55. We reiterated that the presentation prerequisite “applies even when a claim is asserted 

as a defense.” Id. at 1354. Raytheon did not hold or 

suggest that the presentation requirement applies to all 

defenses, and in Laguna, decided after Maropakis and 

Raytheon, we explained that the rule articulated in those 

cases only applies when the defenses “seek the payment of 

money or the adjustment or interpretation of contract 

terms.” 828 F.3d at 1368. A broader rule, the Laguna

court explained, “would unnecessarily expand the definition of a ‘claim’ and could improperly bar . . . jurisdiction 

where the government raises any affirmative defense.” 

828 F.3d at 1368. Accordingly, Laguna found jurisdiction 

over an affirmative defense of fraud even though it had 

not been presented to a CO. Id. at 1368-69.

Under Laguna, if a party raises an affirmative defense under the contract as written—for example, com-
SECURIFORCE INTERNATIONAL v. UNITED STATES 11

mon-law defenses of fraud or prior material breach—it 

need not first be presented to the CO for a final decision, 

since a defense is not a claim for money, and the CO has 

no necessary role in assessing the defense. In contrast, 

under Maropakis and Raytheon, to the extent the affirmative defense seeks a change in the terms of the contract—

for example, an extension of time or an equitable adjustment—it must be presented to the CO, since evaluation of 

the action by the CO is a necessary predicate to a judicial 

decision. 

In this case, Securiforce asserts a common-law affirmative defense of prior material breach under the 

contract as written. It neither seeks the payment of 

money, nor is a decision by the CO a necessary prerequisite. Securiforce need not, therefore, have presented that 

defense to the CO in order to later assert it in the Claims 

Court. Indeed, in Malone v. United States, 849 F.2d 1441, 

1445-46 (Fed. Cir.), modified on other grounds, 857 F.2d 

787 (Fed. Cir. 1988), we assumed that a defense of prior 

material breach did not need to be presented to the CO.

II

Having concluded that the Claims Court had jurisdiction over Securiforce’s prior material breach defenses, 

including the improper termination for convenience 

defense, we consider whether these alleged prior material 

breaches provide a defense to the default termination 

such that the default termination was improper. Aside 

from these alleged prior breaches, Securiforce does not 

challenge on appeal the Claims Court’s determination 

that it failed to perform and to “provide adequate assurances of future performance.” Securiforce I, 125 Fed. Cl. 

at 790.

The government concedes that the Claims Court had 

jurisdiction to review the termination for default even 

though there was no government monetary claim. We

have long held that a termination for default is a govern-
12 SECURIFORCE INTERNATIONAL v. UNITED STATES

ment claim not subject to CO presentment under the 

CDA. See Alliant, 178 F.3d at 1268; Malone, 849 F.2d at 

1443.

A 

We first address whether the government breached 

the contract by partially terminating it for convenience. 

For contracts for the sale of commercial items, the FAR

provides: “The Government reserves the right to terminate this contract, or any part thereof, for its sole convenience.” FAR 52.212-4(l). This clause and its language 

were incorporated into the Securiforce contract. J.A. 743, 

791. The regulations also describe the CO’s authority to 

exercise this clause: “The contracting officer shall terminate contracts, whether for default or convenience, only 

when it is in the Government’s interest.” FAR 49.101(b).

We review terminations for convenience for “bad faith 

or clear abuse of discretion.” T & M Distribs., Inc. v. 

United States, 185 F.3d 1279, 1283 (Fed. Cir. 1999). 

Securiforce did not allege bad faith on the part of the 

government, and the Claims Court could discern none 

from the evidence. See Securiforce I, 125 Fed. Cl. at 784-

85. On appeal, Securiforce presses only its allegations 

that the convenience termination was an abuse of discretion. 

Because the testimony revealed that the CO did not 

herself make the decision to terminate the contract for 

convenience, the Claims Court determined that the CO 

“abdicated her duty to exercise her own independent 

business judgment” and, therefore, “the partial termination for convenience was an improper abuse of discretion.” 

Securiforce I, 125 Fed. Cl. at 787. The cases on which the 

Claims Court relied to render this conclusion are distinguishable in that each involved contractual language that 

entitled the contractor to the resolution of factual disputes

by a particular official. In New York Shipbuilding Corp. 

v. United States, 385 F.2d 427 (Ct. Cl. 1967), the Court of 
SECURIFORCE INTERNATIONAL v. UNITED STATES 13

Claims determined that where a contract specified that 

factual disputes “shall be decided by the Nuclear Projects 

Officer of the Maritime Administration,” id. at 429, the 

contractor was entitled to a resolution by that particular 

officer, id. at 433-35. “The contractor, in particular, 

bargained for the Nuclear Projects Officer as the first 

tribunal to determine controversies,” but a different 

official rendered the final decision, contrary to the contract’s terms. Id. at 434. In Pacific Architects & Engineers Inc. v. United States, 491 F.2d 734, 744 (Ct. Cl. 

1974) (per curiam), the contract similarly provided for the 

resolution of factual disputes “by the Contracting Officer.” 

The CO in that case had reached his decision after accepting the advice of legal counsel. Id. at 745. The Court of 

Claims construed the contract’s provision to require that 

the CO make the ultimate determination but noted that 

“there was no implied prohibition against [the CO’s] first 

obtaining or even agreeing with the views of others.” Id.

at 744.

Securiforce’s contract required only that “[t]he Government” make the termination decision. Our cases 

interpreting similarly worded clauses in the default 

context do not require a decision by a particular official 

but only a reasonable conclusion that there was no reasonable likelihood the contractor would perform within 

the time remaining. Empire Energy Mgmt. Sys., Inc. v. 

Roche, 362 F.3d 1343, 1345 n.2, 1357 (Fed. Cir. 2004);

McDonnell Douglas Corp. v. United States, 323 F.3d 1006,

1014, 1016 (Fed. Cir. 2003). We conclude that the Claims 

Court erred in holding that the decision to terminate for 

convenience was invalid because it was not reached 

independently by the CO.

Securiforce argues in the alternative that the termination for convenience was an abuse of discretion by the 

government. We find no abuse of discretion.
14 SECURIFORCE INTERNATIONAL v. UNITED STATES

The TAA permits the acquisition of certain supplies 

only from a list of designated countries but allows the

waiver of this restriction when in the national interest. 

See 19 U.S.C. § 2512(b)(2); FAR 225.403(c)(ii). Such a 

waiver must generally be obtained from the United States 

Trade Representative (“USTR”). See, e.g., 19 U.S.C. 

§ 2512(b)(1); Exec. Order No. 12,260, § 1-201, 46 Fed. Reg. 

1653, 1653 (Dec. 31, 1980). But where the purchase is for 

“fuel for use by U.S. forces overseas,” the Department of 

Defense (“Defense”) may issue a national-interest waiver 

on its own. FAR 225.403(c)(ii)(B). Securiforce planned to 

source its fuel from Kuwait, which is not a designated 

country for TAA purposes. See, e.g., FAR 52.225-5. 

The contract was awarded to Securiforce on September 7, 2011. The government was aware at that time that 

it would need a national-interest waiver for Securiforce 

under the TAA. At the time the contract was awarded, 

DLA believed it was within the authority of Defense to 

execute such a waiver given the presence of U.S. forces at 

the sites in Iraq. 

In the day following the award, counsel for DLA discovered that because the sites awarded to Securiforce 

were staffed exclusively with Department of State 

(“State”) personnel, Defense lacked the authority to issue 

the waiver for those sites, which would instead need to be 

obtained from the USTR. While the government was 

determining how to proceed, Securiforce countersigned 

the contract on September 9. Between September 9 and 

12, additional research revealed that Defense personnel 

would be present at six of the eight sites, and as a result, 

Defense could and ultimately did waive the TAA for those 

six sites.1

1 Securiforce points to the testimony of two witnesses suggesting that there were Defense personnel at 

 
SECURIFORCE INTERNATIONAL v. UNITED STATES 15

At this point, two sites required a USTR waiver. Ultimately, the government concluded that a USTR waiver 

could take four to six weeks and that obtaining such a 

waiver could cause significant delay to fuel deliveries in 

the war zone. The government decided that it was in its 

interest to terminate the contract with respect to those 

two sites, which it did by issuing unilateral Modification 

P00001. It was entirely reasonable—and no abuse of 

discretion—for the government to decide that this approach was in its best interests.

Securiforce argues that the government was under an 

obligation to seek the USTR waiver as part of its “duty to 

facilitate Securiforce’s performance,” Appellant Reply Br. 

29, citing our decision in Rockies Express Pipeline LLC v. 

Salazar, 730 F.3d 1330 (Fed. Cir. 2013). In Rockies, we 

determined that the government breached a contract by 

not seeking to deviate from certain provisions in the 

FAR—as it had promised in the contract to do—yet continuing to demand performance by the contractor. Id. at 

1334-35, 1338-39. The government in that case did not 

terminate for convenience, and we did not decide whether 

that would have been appropriate. In particular, Rockies

did not speak to whether the government could invoke 

termination for convenience in order to avoid the very 

kind of dispute raised by the parties in that case. Here, 

we hold that the government was entitled to terminate 

the contract for convenience in light of both the contract’s 

the other two sites and that the Defense waiver was 

therefore effective as to those sites, as well. The Claims 

Court credited other witnesses’ testimony to the contrary, 

Securiforce I, 125 Fed. Cl. at 756, and given this conflicting testimony, the Claims Court’s factual finding was not 

clearly erroneous, e.g., Anderson v. City of Bessemer City, 

470 U.S. 564, 575 (1985).

 
16 SECURIFORCE INTERNATIONAL v. UNITED STATES

conflict with the TAA and the possibility that seeking a 

waiver would cause unacceptable delay. 

Securiforce also disputes the timing of the government’s decision, pointing to testimony that suggests the 

government decided to terminate the contract before it 

was even executed. Securiforce contends that this constitutes a breach under Torncello v. United States, 681 F.2d 

756 (Ct. Cl. 1982) (en banc) (plurality op.). As interpreted 

by the later decisions of this court, Torncello “stands for 

the unremarkable proposition that when the government 

contracts with a party knowing full well that it will not 

honor the contract, it cannot avoid a breach claim by 

adverting to the convenience termination clause.” Salsbury Indus. v. United States, 905 F.2d 1518, 1521 (Fed. 

Cir. 1990).

After reviewing the trial evidence, the Claims Court 

concluded that “although the record indicates that DLA 

Energy was aware of the TAA waiver issue with regard to 

the two [State] sites by September 8, 2011, it is also clear 

that defendant had not reached a conclusion on how it 

would resolve the issue before both parties executed the 

contract on September 9, 2011.” Securiforce I, 125 Fed. 

Cl. at 787 n.9; accord id. at 756. The Claims Court therefore determined that there had been no Torncello breach. 

Id. at 787 n.9. Although Securiforce has pointed to conflicting evidence on this point, the Claims Court’s factual 

finding was not clearly erroneous. E.g., Anderson, 470 

U.S. at 575. We conclude that the government did not 

breach the contract by terminating for convenience. We 

need not reach the question whether a breach, had it 

occurred, would have excused Securiforce’s default.

B 

Securiforce also contends that the government’s failure to provide security escorts for the fuel deliveries was a 

prior material breach. Since virtually the moment the 

contract was signed, the parties disputed what, if any, 
SECURIFORCE INTERNATIONAL v. UNITED STATES 17

security the government was required to provide. On 

October 13, 2011, the parties executed the bilateral Modification P00002 (“Mod. 2”). Mod. 2 added language to the 

contract requiring the government to provide security 

escorts to each of the six remaining sites. This provision 

expressly stated that it would expire and that “U.S. 

Government escorts will no longer be provided after 

December 31, 2011 for all line items in the contract.” J.A. 

1086.

Securiforce contends that the government then 

breached Mod. 2 when on October 24, 2011, the supervisory CO sent an email to Securiforce, informing it that 

“[m]ilitary provided security . . . w[ould] no longer be 

provided” to four of the six remaining sites and that “DLA 

Energy [wa]s working towards a solution to line Securiforce with a [State] task order for security but this has not 

been finalized as of the writing of this email.” J.A. 1228. 

“More to come,” the email concluded. Id.

Securiforce contends that this email was an anticipatory repudiation of the government’s obligations under 

Mod. 2. Anticipatory repudiation requires

reasonable grounds [to] support the obligee’s belief that the obligor will breach the contract. In 

that setting, the obligee “may demand adequate 

assurance of due performance” and if the obligor 

does not give such assurances, the obligee may 

treat the failure to do so as a repudiation of the 

contract.

Danzig v. AEC Corp., 224 F.3d 1333, 1337-38 (Fed. Cir. 

2000) (quoting Restatement (Second) of Contracts § 251 

(Am. Law Inst. 1981)). The Claims Court concluded that

“the plain text of the e-mail explains that DLA Energy 

intended to arrange security escorts for Securiforce.” 

Securiforce I, 125 Fed. Cl. at 795. We agree: the government’s email was not an indication that it would breach 

the terms of Mod. 2. If anything, it was a reassurance 
18 SECURIFORCE INTERNATIONAL v. UNITED STATES

that the government was endeavoring to perform. Moreover, Securiforce’s CEO acknowledged in an email just four 

days later that the government already had proposed at 

least one alternative approach using a private security 

contractor. 

With respect to the period following 2011, Securiforce 

also asserts anticipatory breach by the government as a 

result of the government’s various statements that no 

armed security escorts would be provided after 2011. 

Securiforce contends that “[o]n its face, Mod 0002 could 

not resolve any security issue other than in 2011, which is 

all it covered.” Appellant Reply Br. 42. In fact, Mod. 2 

(agreed to by both sides) specifically stated that “U.S. 

Government escorts will no longer be provided after 

December 31, 2011.” J.A. 1086. On its face, then, Mod. 2 

made clear that no government escorts would be provided

beyond 2011. While Securiforce contends that the government was obligated to provide private security, no 

express provision in the contract required this. We agree, 

for the reasons stated by the Claims Court, that with 

respect to the contract prior to Mod. 2, “[t]he inferences 

which are required in order to conclude that the government was obligated to provide security . . . are not supported in the record.” Securiforce I, 125 Fed Cl. at 795. 

The government did not breach the contract by failing to 

provide security.

Securiforce also contends that the government’s refusal to allow it to contract for private security constituted 

an anticipatory repudiation. Securiforce offered no record 

evidence that the government barred it from contracting 

for private, unarmed security, and indeed it appears that 

Securiforce agreed to proceed with unarmed security. On 

October 19, representatives from both parties took part in 

a conference call to discuss the security matter. In an 

email following that call, a DLA supervisor provided a 

summary “to recap the discussions and make sure we are 

on the same page going forward.” J.A. 3589. In particu-
SECURIFORCE INTERNATIONAL v. UNITED STATES 19

lar, she noted that “Securiforce agrees to continue performance after December 31, 2011, without government 

escorts or armed private security. Securiforce intends to 

use unarmed escorts and will be requesting an equitable 

price adjustment.” Id. (emphases added). There was no 

evidence that anyone from Securiforce ever contested 

DLA’s summary of the call. Given this apparent agreement among the parties to proceed with unarmed security, we again see no reasonable grounds for Securiforce to 

have concluded that the government was repudiating its 

contractual obligations.

C 

Securiforce alleges a series of other government actions or omissions, which the Claims Court found did not

constitute a breach of the contract. First, Securiforce 

argues that the government breached by failing to assist 

in processing security badges for Securiforce’s truck 

drivers. The Claims Court determined that the “badging 

of drivers . . . was delayed because Securiforce did not 

have enough drivers confirmed to operate the contract.” 

Securiforce I, 125 Fed. Cl. at 791. The Claims Court did 

not clearly err: the evidence at trial suggested that although both parties may have contributed, the delay was 

proximately caused by a lack of diligence on the part of 

Securiforce. 

Second, Securiforce contends that the government’s 

orders for fuel were impermissible “proof of principle” 

orders. In other words, instead of ordering its full requirements for fuel, the government allegedly placed 

orders for small quantities to test whether Securiforce 

would be capable of performing. The Claims Court found 

that “[t]he testimony . . . seems to support that the [proof 

of principle] orders were for actual requirements.” Id. at 

796. Securiforce does not appear to contest this factual 

finding, and this is sufficient to resolve the legal question 

of breach. Nothing in the contract required the govern-
20 SECURIFORCE INTERNATIONAL v. UNITED STATES

ment to place orders of any particular frequency or size, 

so long as it ordered its requirements.

Third, Securiforce argues that the government impermissibly ordered fuel from other vendors for sites 

awarded to Securiforce. The Claims Court found that “the 

testimony indicates that the government only filled additional requirements from other sources after Securiforce 

clearly had indicated that it could not deliver sooner than 

early November 2011 and while the government waited 

for Securiforce to be able to perform.” Id. at 797. The 

Claims Court’s conclusion was not clearly erroneous. 

When Securiforce repeatedly declared that it could not 

timely perform, the government was entitled to order fuel

elsewhere to satisfy its time-sensitive needs. 

Finally, Securiforce suggests that it was not in default 

because the fuel orders placed by the government—first 

orally and then in writing—were never entered into the 

electronic ordering system. This position is directly 

contradicted by the contract’s ordering provision: “The 

Contractor’s nonreceipt of a written or electronic confirmation of an oral order or oral call against a written or 

electronic order does not itself relieve the Contractor from 

its obligation to perform . . . .” J.A. 783. Securiforce has 

not shown that any action or omission by the government 

excused Securiforce’s own failure to perform.

III

We turn lastly to the Claim Court’s denial of Securiforce’s sanctions motions, which we review for abuse of 

discretion. See, e.g., Harris v. United States, 868 F.3d 

1376, 1378 (Fed. Cir. 2017) (per curiam); Hendler v. 

United States, 952 F.2d 1364, 1380-81 (Fed. Cir. 1991).

Securiforce sought sanctions with respect to several 

purported failures by the government to comply with 

Securiforce’s discovery requests. First, the government 

belatedly identified and turned over documents related to 
SECURIFORCE INTERNATIONAL v. UNITED STATES 21

other contracts awarded under the same solicitation as 

Securiforce’s. Securiforce II, 127 Fed. Cl. at 396-400.2 

Second, after initially denying that any fuel had been 

delivered to the Securiforce sites by entities other than 

Securiforce during the duration of the contract, the government through additional investigation discovered that 

such deliveries had been made. Securiforce II, 127 Fed. 

Cl. at 400-07. Finally, the witness identified by the 

government for a Rule 30(b)(6) deposition was not able to 

answer all of the questions asked by Securiforce’s counsel, 

and the government offered additional witnesses for 

deposition, which Securiforce declined. Id. at 407.

The Claims Court denied each sanctions motion under 

various subsections of its Rule 37. Each of those subsections contains exceptions that vest substantial discretion 

in the trial judge in determining whether sanctions are 

appropriate. See Ct. Fed. Claims R. 37(a)(5)(iii) (allowing 

Claims Court to deny sanctions if “other circumstances 

make an award of expenses unjust”); id. R. 37(b)(2)(C) 

(same); id. R. 37(c)(2)(B) (same if “the admission sought 

was of no substantial importance”). As described at 

length by the Claims Court, “[d]iscovery in this case was 

protracted, contentious, and difficult,” Securiforce II, 127 

Fed. Cl. at 400; Securiforce ultimately received the discovery it sought; and it declined additional witnesses 

when offered by the government. We see no abuse of 

2 Securiforce also appeals the Claims Court’s denial 

of its motion to compel discovery of these materials. The 

Claims Court determined that these document requests 

“were overly broad and not likely to produce evidence 

relevant to” Securiforce’s claims. Id. at 399. Because 

Securiforce concedes that it “finally got the information it 

had originally requested,” Appellant Br. 49, the appeal 

from the denial of this motion is moot.

 
22 SECURIFORCE INTERNATIONAL v. UNITED STATES

discretion in the Claims Court’s determination that 

sanctions were not warranted.

CONCLUSION

We vacate the Claims Court’s entry of judgment with 

respect to the termination for convenience and remand 

with instructions to dismiss that claim for lack of jurisdiction. We affirm the Claims Court’s judgment in all other 

respects. 

AFFIRMED IN PART AND VACATED AND 

REMANDED IN PART

COSTS

Costs to the United States.