ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE MELNICK 

ON THE GOVERNMENT’S MOTION TO DISMISS FOR 

LACK OF JURISDICTION 

 Heffler Contracting Group’s (Heffler) March 23, 2023, notice of appeal 

challenges the Department of the Navy’s (government) January 13, 2023, final decision 

terminating a task order under the contract identified above for default (R4, tab 30). 

The government seeks to dismiss the appeal for lack of jurisdiction, suggesting Heffler 

advanced excusable delay in its complaint as a defense to the default without 

submitting a time extension claim to the contracting officer for a decision. The 

government relies upon precedent dictating that contractors must submit an extension 

claim to raise excusable delay as a defense. See M. Maropakis Carpentry, Inc. 

v. United States, 609 F.3d 1323, 1331 (Fed. Cir. 2010) (“[A] contractor seeking an 

adjustment of contract terms must meet the jurisdictional requirements and procedural 

prerequisites of the [Contract Disputes Act], whether asserting the claim against the 

government as an affirmative claim or as a defense to a government action”); 

Securiforce Int’l Am., LLC v. United States, 879 F.3d 1354, 1363 (Fed. Cir. 2018) 

(“[T]o the extent the affirmative defense seeks a change in the terms of the contract—

for example, an extension of time . . . it must be presented to the [contracting officer])”; 

ECC CENTCOM Constructors, LLC, ASBCA No. 60647, 18-1 BCA ¶ 37,133 

at 180,713 (“[A] contractor contesting . . . a default termination due to excusable delay 

must submit a claim for a time extension before appealing to the Board”), aff’d, 779 F. 

App’x 750 (Fed. Cir. 2019); and SupplyCore, ASBCA No. 63057, 22-1 BCA ¶ 38,195 

at 185,489 (granting unopposed motion to dismiss excusable delay count of a challenge 

to a termination for cause because the contractor never submitted an extension claim). 

Appeal of - )

)

Heffler Contracting Group ) ASBCA No. 63565

)

Under Contract No. N62473-19-D-2417 )

APPEARANCE FOR THE APPELLANT: Kelly A. Floyd, Esq.

 Finch, Thornton & Baird, LLP

 San Diego, CA 

APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq.

 Navy Chief Trial Attorney

Katherine E. Arutunian, Esq.

 Trial Attorney
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Heffler responds by denying the government’s characterization that its complaint 

asserts excusable delay as a defense.

We need not parse the language of Heffler’s pleadings because the government’s 

motion is fundamentally flawed. The government does not merely seek dismissal of 

Heffler’s defenses but the core appeal itself. Although the mechanics of our 

jurisdictional statute required Heffler to initiate the appeal, the default is a government 

claim that it bears the burden of proving. Securiforce, 879 F.3d at 1363 (explaining a 

default termination is a government claim); Incircle Mgmt., Inc., ASBCA No. 62684, 

23-1 BCA ¶ 38,442 at 186,841 (noting a default termination is a government claim that 

it bears the burden of proving justified); Beechcraft Def. Co., ASBCA No. 59173, 

14-1 BCA ¶ 35,592 at 174,395 (discussing the requirement that all Board appeals, 

whether from contractor or government claims, be the subject of a final decision 

appealed by the contractor). For the Board to possess jurisdiction over an appeal from 

the default there need only be a final decision terminating the contract, followed by a 

notice of appeal filed within 90 days of its receipt. See 41 U.S.C. §§ 7104(a), 

7105(e)(1); see also DCX-CHOL Enters., Inc., ASBCA Nos. 62453, 62454, 20-1 BCA 

¶ 37,722 at 183,111 (recognizing Board jurisdiction over appeals from default 

terminations brought within 90 days of receipt). This appeal meets that test. Indeed, 

once Heffler commenced this appeal, we could have ordered the government to file the 

complaint, instead of Heffler, and outline the grounds for its default claim. See 

Beechcraft, 14-1 BCA ¶ 35,592 at 174,395-96. We have jurisdiction to adjudicate this

matter whether Heffler raises any affirmative defenses or not. Now that the appeal is 

before us, the government must in the first instance carry its burden on the merits of 

proving the default. See SupplyCore, 22-1 BCA ¶ 38,195 at 185,488-89 (addressing 

at the outset whether the government has met its burden); Goodloe Marine, Inc., 

ASBCA Nos. 62106, 62446, 22-1 BCA ¶ 38,053 at 184,774 (same).

None of the cases relied upon by the government deprive the Board of 

jurisdiction to adjudicate a government default claim because the contractor has not 

perfected the jurisdictional prerequisites for its affirmative defenses. Nor do they 

relieve the government for that reason from its burden of proving the default once 

appealed. Both ECC CENTCOM and SupplyCore show the opposite by exercising 

jurisdiction over the appeals and recognizing the government’s initial burden to 

establish the default, before turning to whether the Board possessed jurisdiction to hear 
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the contractor’s delay defenses. SupplyCore, 22-1 BCA ¶ 38,195 at 185,488-89; 

ECC CENTCOM, 18-1 BCA ¶ 37,133 at 180,711. Accordingly, the government’s 

motion to dismiss the appeal for lack of jurisdiction is denied.∗

 Dated: February 13, 2024 

MARK A. MELNICK

Administrative Judge 

Armed Services Board 

of Contract Appeals

I concur

OWEN C. WILSON

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals

I concur

J. REID PROUTY

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals

∗

 Given that our rejection of the government’s motion to dismiss the appeal does not 

turn on a review of any defenses that might be described in Heffler’s complaint, 

we express no opinion about them or whether we currently possess jurisdiction 

to entertain them. 
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I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA No. 63565, Appeal of Heffler 

Contracting Group, rendered in conformance with the Board’s Charter.

Dated: February 13, 2024

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals