ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

Molly Jessie Company ) 

) 

Under Contract No. W912WJ-19-P-0023 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 62140 

Mr. Greg Ryan 

Principal/Partner 

Michael P. Goodman, Esq. 

Engineer Chief Trial Attorney 

Jenna N. Gustafson, Esq. 

Engineer Trial Attorney 

U.S. Army Engineer District, New Englan

Concord, MA 

OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD 

This is an appeal from a termination for default of a purchase order contract. 

Appellant has elected Board Rule 12.3, Accelerated Procedure, and each party has 

decided to proceed under Board Rule 11, Record Submission. Each party filed an 

initial brief and a reply brief. In addition to the briefs, the record includes the 

government's Rule 4 file, as supplemented, tabs 1-45, appellant's supplement to that 

file, exs. Al-A4, which it filed as an attachment to its "Reply to Respondent's 

Answer" on September 16, 2019. Only the termination for default is at issue here. 

FINDINGS OF FACT 

1. On January 4, 2019, the U.S. Army Corps of Engineers, New England District 

(government or Corps) issued Request for Quotations (RFQ) No. W912WJ19Q0033 to 

perform the work set forth in an attached schedule. Item No. 0001 of that Schedule 

described the work as follows: 

NHL Replace Sanitary Sewer Pipe 

FFP 

Contractor shall furnish all labor, materials, equipment, 

and transportation to remove and replace approximately 

320 feet of existing vitrified clay (VC) sanitary sewer 

piping from the Comfort Station to the existing distribution 
box at North Hartland Lake, Hartland, VT in accordance 

with the Statement of Work. 

(R4, tab 2 at 1-2) 

2. The Schedule further stated that "site visits are highly recommended prior to 

providing a quote." (Id. at 2) Paragraph 7 of the Quotation Instructions stated: 

(Id. at 3) 

Contractors are not required to submit an Accident 

Prevention Plan (APP) with their quote. The successful 

offeror will be required to submit this document at the 

direction of the Technical Point of Contact. The APP must 

be accepted by the Government designated Authority prior 

to the commencement of work. 

3. Also included with the RFQ was a Statement of Work (SOW), Section A of 

which gave a more detailed description of the work to be performed (R4, tab 2 at 4). 

Section D, paragraph 1, Accident Prevention Plan, of the SOW provided in part as 

follows: 

The Contractor shall prepare an Accident Prevention Plan 

(APP) specific to the activities being performed. It shall 

include an Activity Hazard Analysis (AHA) as described 

in Paragraph "2. AHA" below. All work shall be 

conducted in accordance with the APP, the U.S. Army 

Corps of Engineers Safety and Health requirements 

Manual (EM 385-1-1, 2014 edition), and all applicable 

Federal, State, and local safety and health requirements. A 

copy of EM 385-1-1 can be accessed electronically using 

the following link: 

http://www.publications. usace.army .mil/Portals/7 6/Publica 

tions/EngineerManuals/EM _ 3 85-1-1.pdf 

The APP shall detail how safety and health will be 

managed during the project. The APP shall address the 

requirements of applicable Federal, State and local safety 

and health laws, rules, and regulations. The Contractor 

shall comply with Federal Acquisition Regulation Clause 

No. 52.236-13 for Accident Prevention, which is added by 

reference. Special attention shall focus on the 

2 
requirements of EM 3 85-1-1, specifically Section O l .A.11 

through 01.A.18, Figure 1-2 AHA, and Appendix A 

(Minimum Basic Outline for Accident Prevention Plan). 

The APP shall be developed by a qualified person. The 

Contractor shall be responsible for documenting the 

qualified person's credentials. Work shall not proceed 

until the APP has been reviewed by the Government 

Designated Authority (GDA) and deemed acceptable for 

use on the project. 

(R4, tab 2 at 12) 

4. Section D, paragraph 4 of the SOW, Site Safety and Health Officer (SSHO) 

required the contractor to designate one person as SSHO, whose qualifications were to 

include: 

A. A minimum of five years of experience in 

implementing safety and health programs at similar 

projects; 

B. Documented experience in personal protective 

equipment; 

C. Working knowledge of construction safety procedures 

as well as Federal and state occupational safety and health 

regulations. 

D. Completion of the 30-hour OSHA Construction Safety 

class or as an equivalent, 30 hours of formal construction 

safety and health training covering the subjects of the 30-

hour course. 

(R4, tab 2 at 13) 

5. Section E of the SOW, General and Administrative Submittals Required, 

called for the successful contractor to submit for approval an initial Project Schedule 

within five days after receipt of notice to proceed (NTP), the Accident Prevention Plan 

to include an AHA for each major phase of work, documentation of SSHO 

qualifications, and make several other submittals (R4, tab 2 at 13-14 ). 

6. Performance of the contract was to be completed within 120 days after 

issuance of the NTP (R4, tab 2 at 35). 

7. Molly Jessie Company (appellant or MJC) submitted a quotation on 

January 18, 2019, to perform the work set forth in the RFQ including the SOW. The 

amount of the quote was $34,000 firm-fixed price. (R4, tab 3 at 1-2) The government 

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(by Jennifer Samela) advised MJC that it was the apparent low bidder on January 22, 

2019 and asked if it was going to perform the work itself or use a subcontractor (R4, 

tab 4 at 2). Mr. Ryan, MJC's facility Manager, responded that it would do the work 

itself. In reply, on January 24, 2019, Ms. Samela asked "[a]re you familiar with the 

US Army Corps of Engineers safety submittals?" Mr. Ryan replied on the same date: 

(Id. at 1-2) 

I will review the Safety related submittals in general to 

report back to you if I have concerns or not and any 

unfamiliarity that I may encounter after I breeze through 

the folder again for assurance/insurance purposes to 

respond back to your request. 

8. On January 28, 2019, Mr. Ryan further replied: 

(Id. at 1) 

I have reviewed our plans again, and you refer to the 

requirements ofEM-385-1-1 in general on page 12 of 

section 1 accident prevention plan. This U.S. Army Corps 

of Engineers Safety and Health Manual is what we 

currently use and provide toe [sic] other agencies in the 

government contracting requirements and submissions 

currently and I see no deviation as referred to your 

statement of work body of language provided. 

9. On February 19, 2019, Ms. Samela transmitted the Purchase Order to 

Mr. Ryan, stating that if he agreed "to the terms and conditions, he should execute one 

copy." She further stated that since the "award is below the level for bonding, this email shall serve as your Notice to Proceed." The terms and conditions included the 

same SOW as had accompanied the RFQ, including the sections discussed above (R4, 

tab 6 at 1-2). In addition the purchase order incorporated by reference FAR 52.249-10, 

DEFAULT (FIXED-PRICE CONSTRUCTION) APR 1984 (R4, tab 5 at 43). 

Mr. Ryan signed the order on February 26, 2019 (R4, tab 5 at 1). Ms. Samela 

confirmed to Mr. Ryan on February 27, 2019 that the "period of performance [was] 

until 19 June 2019" (R4, tab 8 at 1), which was 120 days after receipt of the NTP. 

10. On May 2, 2019, the Contracting Officers Representative (COR), 

Mr. Wayne Chmielewski, sent a letter of concern to MJC regarding a lack of progress 

in submitting an acceptable site-specific Accident Prevention Plan (APP) and an Initial 

Project Schedule. Apparently an APP was submitted on March 4, 2019 but it did not 

include the qualifications of an SSHO who met contract requirements. Further, the 

4 
SSHO was required to have completed the 30-hour OSHA Construction Safety Class 

and no evidence of that was included. Appellant was also advised that certificates 

were required for two employees to be first-aid and CPR qualified in accordance with 

EM-385-1-1. (R4, tab 27) 

11. In a lengthy response on May 3, 2019, Mr. Ryan did not dispute that the 

information sought in the COR' s letter of concern was required by the contract nor did 

he dispute that it had not been provided. His concern was the time and cost of the 

paperwork required that he thought was excessive for a contract of that size as 

suggested by the final sentence in his response: 

At this time here I have asked the office to not put further 

cost and expense, effort or anything related to the project 

as you have exhausted the funding that was initially 

planned for the entire project and we haven't even started 

yet, due to your demands that go unsupported for this type 

of project and size. 

(R4, tab 29 at 1-2) 

12. On May 14, 2019, the contracting officer issued a cure notice advising 

appellant that its lack of response to the Corp' s request for required submittals was 

endangering performance and that if it did not comply by curing the deficiencies 

within ten days of receipt of the cure notice, the contract might result in a termination 

for default pursuant to contract clause 52.249-10, Default (Fixed-Price Construction). 

(R4, tab 30 at 2) 

13. MJC replied that same day suggesting that it met the requirements without 

providing the necessary paperwork to substantiate it. It also continued to question the 

motives of the Corps, stating: 

We do not comprehend all of the major requirements for 

documentation over and above other jobs of this 

magnitude. It appears to be discrimination and we 

certainly hope it isn't related to our ethnic background. 

(R4, tab 31 at 3) 

14. The Corps replied on May 29, 2019 disputing each point made by appellant 

and advising that unless the deficiencies were cured within five extended days, the 

contract might be terminated for default (R4, tab 32 at 1-2). 

5 
15. A show cause notice was issued by the Corps to appellant on June 11, 

2019, stating that it was considering terminating the contract for default, but before 

doing so, it was giving MJC an opportunity to make a submission, in writing, with 

supporting documentation, detailing why the default was "due to causes beyond its 

control and without its fault or negligence, and which MJC believed excused its failure 

to perform the contract." (R4, tab 33 at 1-2) 

16. Appellant replied, again not disputing the particulars of the missed proper 

submissions but offering the excuse that the paperwork requirements exceeded what 

should have been required for a contract of this size (R4, tab 34 ). The government 

found no merit in the arguments presented in MJC's response to the show cause notice 

and advised that it was proceeding to terminate the purchase order for default (R4, 

tab 35 ~t 1), which it did by contracting officer's final decision on June 25, 2019, 

stating that no work had been performed since award of the purchase order on 

February 19, 2019 and that appellant failed to cure the deficiencies outlined in the cure 

notice (R4, tab 39). 

17. The final decision was timely appealed to the Armed Services Board of 

Contract Appeals and was docketed on July 26, 2019 as ASBCA No. 62140. 

DECISION 

The legal standards for a default termination are well established. Under the 

default clause in this contract, FAR 52.249-10 DEFAULT (FIXED-PRICE 

CONSTRUCTION) (APR 1984), the government may terminate the contract for 

default when the contractor, without excuse, fails to diligently prosecute the work or 

fails to complete the work within the time prescribed by the contract. The government 

bears the burden to prove that its termination was justified. Lisbon Contractors, Inc. v. 

United States, 828 F.2d 759, 764-65 (Fed. Cir. 1987). If the government establishes a 

prima facie case justifying the termination, the burden shifts to the contractor to prove 

the default was excusable. Truck/a Services, Inc., ASBCA No. 57564, 17-1 BCA 

,r 36,638 at 178,445 (citing ADT Constr. Grp., Inc., ASBCA No. 55358, 13 BCA 

,r 35,307 at 173,312). 

The contracting officer terminated the contract for default on June 25, 2019, six 

days beyond the contract completion date and no onsite work had been accomplished 

and thus the government has carried its burden to establish a prima facie case 

(findings 10, 12, 14-15). The burden thus shifts to MJC to demonstrate that its default 

was excusable (findings 11, 13, 16). Appellant has failed to meet its burden. It 

continues to assert in its brief and in its reply that the requirements insisted upon by the 

government were requirements that should have applied to larger contracts, yet it 

offers no evidence of that. The requirements the government insisted upon were in the 

SOW issued with the Request for Quotations and were similarly in the SOW which 

6 
became part of this purchase order contract. It cannot now complain about their 

inclusion and seek to avoid the consequences of failing to follow them. The time to 

complain about the paperwork requirements was prior to submission of its bid, not 

now after the government has insisted upon strict compliance. Appellant has failed to 

demonstrate that its default was excusable. ADT Constr. Grp., 13 BCA ,r 35,307 

at 173,312 (citing Empire Energy Mgmt. Servs., Inc., ASBCA No. 46741, 03-1 BCA 

,r 32,079 at 158,553). Thus, the default termination was appropriate. 

The appeal is denied. 

Dated: February 12, 2020 

I concur 

J.~ 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 

CONCLUSION 

7 

RICHARD SHACKLEFORD 

Administrative Judge 

Vice Chairman 

Armed Services Board 

of Contract Appeals 
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. 62140, Appeal of Molly 

Jessie Company, rendered in conformance with the Board's Charter. 

Dated: 

8 

PAULLA K. GATES-LEWIS 

Recorder, Armed Services 

Board of Contract Appeals