ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE MELNICK GRANTING THE 

GOVERNMENT’S MOTION TO DISMISS ASBCA NOS. 63548 AND 63549 

AS MOOT 

On July 15, 2021, the Army Corps of Engineers (government) awarded 

North Wind Construction Services, LLC (NWCS), the contract identified above for the 

design and construction of a seepage barrier at the Portsmouth, Ohio levee (ASBCA 

Nos. 63548, 63549 compl. ¶¶ 5, 16).1

 NWCS proposed a secant wall for the barrier 

(compl. ¶ 15). After NWCS began construction, the government claimed its work did 

not meet contract specifications because there was no bonded interface between piles 

and NWCS was required to employ joint cleaning procedures between bonded joints 

(compl. ¶ 20). NWCS believes that the contract specifications only required barriers 

1

 This complaint, one of several from these consolidated appeals, is cited throughout 

unless otherwise indicated. 

Appeals of - )

)

North Wind Construction Services, LLC )

) 

) 

)

ASBCA Nos. 63548, 63549, 63641

 63642, 63733, 63750 

 63751, 63759, 63760 

 63761, 63762

)

Under Contract No. W91237-21-C-0003 )

APPEARANCES FOR THE APPELLANT: Dana W. Lang, Esq.

 Womble Bond Dickson (US) LLP 

 Charleston, SC 

Joshua A. Mullen, Esq. 

Joshua R. Funderburke, Esq.

 Womble Bond Dickinson (US) LLP

 Nashville, TN

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.

 Engineer Chief Trial Attorney

Matt D. Coakley, Esq.

Joshua J. McCarroll, Esq. 

Jack D. Myers, Esq.

 Engineer Trial Attorneys

 U.S. Army Engineer District, Huntington
2

containing panel joints to have a bonded interface. It maintains that a secant wall is 

not composed of panels. (Compl. ¶¶ 21-26) Additionally, NWCS expected that 

permeability and strength would be tested from cores taken out of the solid mass of the 

piles, while the government directed the use of cores taken from the intersections of 

the primary and secondary piles (compl. ¶¶ 34-38).

On October 20, 2022, NWCS submitted non-monetary claims to the contracting 

officer for contract interpretation (compl. ¶ 45). On March 1, 2023, NWCS filed two 

notices of appeal from the contracting officer’s decision that were docketed as ASBCA 

Nos. 63548 and 63549 and consolidated. The combined complaint seeks a declaration 

that NWCS’ technical proposal, including its selection of a secant wall, was part of the 

contract. It also asks the Board to declare that use of a secant wall was not a deviation 

from the specifications and therefore did not require a variance, specifications 

applicable to a panel type wall were inapplicable to verifying the properties of a secant 

wall, and both permeability and strength could be measured through the solid portions 

of the piles. (Compl. ¶¶ 56, 63)

On July 21, 2023, after NWCS appealed its contract interpretation claims, the 

government terminated the contract for default (gov’t mot. at 3; app. resp. at 3). 

NWCS appealed the default, which is docketed as ASBCA No. 63733 and 

consolidated with these appeals. Among the allegations NWCS advances in that 

appeal are that the government imposed the improper contract requirements that 

NWCS raised in the declaratory relief appeals (ASBCA No. 63733 compl. ¶¶ 49-77). 

Also consolidated here are NWCS’ appeals from claims for the costs arising from a 

secant wall demonstration section, a haul road, and for associated government delays 

(ASBCA Nos. 63641, 63642, 63750, 63751, 63759, 63760, 63761, 63762).

Because the contract has now been terminated for default, the government asks 

us to dismiss as moot the two original appeals seeking declarations of the contract’s 

terms (ASBCA Nos. 63548 and 63549).

It has long been recognized that this Board’s Contract Disputes Act (CDA) 

jurisdiction includes granting declaratory relief when appropriate. See 41 U.S.C.

§§ 7101-09; Alliant Techsystems, Inc. v. United States, 178 F.3d 1260, 1269-70 (Fed. 

Cir. 1999). Actions seeking only a declaration of a contract’s terms are potentially 

proper when additional contract performance remains to be accomplished, the costs of

which might be affected by the ruling. As NWCS concedes, “a nonmonetary appeal 

should survive if a favorable ruling . . . results in the avoidance of costs rather than a 

recovery of money” (app. resp. at 7 (citing J&J Maint., Inc., ASBCA No. 63013, 

23-1 BCA ¶ 38,353)). Given that this contract has now been terminated, and there are 

no future performance costs that could be avoided, there is no purpose for these 

actions. For this reason, we have historically dismissed as moot appeals seeking a 

declaration of the terms of fully performed or terminated contracts. See Windamir
3

Dev., Inc., ASBCA No. 63461, 24-1 BCA ¶ 38,484 at 187,045; Shirley Constr. Corp., 

ASBCA No. 35868, 89-2 BCA ¶ 21,590 at 108,720; Poysky Bros., ASBCA No. 33935, 

87-3 BCA ¶ 20,180 at 102,146. The law also disfavors affording declaratory relief 

such as what NWCS seeks in these two appeals when standard legal remedies are 

available to adequately protect its interests. See Securiforce Int’l Am., LLC v. United 

States, 879 F.3d 1354, 1360-62 (Fed. Cir. 2018); Alliant, 178 F.3d at 1271-72.

NWCS’ citation to Tactical Network Corp., ASBCA No. 62963, 21-1 BCA 

¶ 37,942, does not alter our conclusion. There, after a pro se appellant appealed to us 

the government’s interpretation of its contract, the government terminated the contract 

for default. The appellant then filed a “motion to join” in the existing appeal seeking 

the Board to convert the termination for default to a termination for convenience. The 

Board treated the motion to join as a new notice of appeal challenging the default. It 

consolidated the appeals and declined the government’s request to dismiss the 

declaratory action as moot, saying the issues it presented were relevant to the default. 

Instead of overturning our prior precedent dismissing appeals seeking declarations of 

the terms of terminated contracts, which it could not do, we view Tactical Network as 

limited to its circumstances, giving administrative leeway to a pro se appellant so that 

it could fully join the issues it sought to present. See GLJ, Inc., ASBCA No. 62964, 

22-1 BCA ¶ 38,121 at 185,184. NWCS is represented by counsel and does not require 

the kind of accommodation afforded to the pro se appellant in Tactical Network.

NWCS suggests that retention of these two appeals on our docket is also 

required by M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (Fed. Cir. 

2010), to enable our review of the contract in its appeal of the termination for default, 

ASBCA No. 63733. Maropakis says that “a contactor 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.” 609 F.3d at 1331. Here, the default 

termination is a government claim that it bears the burden of proving justified. See

Securiforce, 879 F.3d at 1363; Incircle Mgmt., Inc., ASBCA No. 62684, 23-1 BCA 

¶ 38,442 at 186,841. Challenges NWCS may make to the government’s reading of the 

defaulted contract would not seek an adjustment to its terms. Cf. ASFA Int’l Constr. 

Indus. and Trade, Inc., ASBCA No. 57880, 14-1 BCA ¶ 35,736 at 174,910-911 

(holding Maropakis inapplicable to an assertion that contract rights were waived). 

Nothing in Maropakis requires NWCS to pursue separate appeals seeking declarations 

of the contract’s provisions before NWCS may argue its meaning in an appeal of its 

default.
4 

Nor would dismissal of these declaratory actions affect our review of NWCS’ 

other consolidated appeals asserting government delay and pursuing monetary 

compensation.2

 They remain live and to the extent the contract interpretation issues 

raised in these two appeals are relevant to those matters NWCS remains free to present 

them for those purposes. NWCS retains its right to legal remedies that might be 

necessary to make it whole. Hence, its two original appeals seeking purely declaratory 

rulings about the parties’ contract rights do not seek meaningful relief any longer. 

They are at best duplicative and therefore ASBCA Nos. 63548 and 63549 are 

dismissed from the consolidated action as moot. 

 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

2

 Distinct from any arguments NWCS might wish to make in its challenge to the 

default about the requirements of the contract, we have held that under 

Maropakis a contractor contesting a default based upon excusable delay by the 

government must submit a claim for a time extension. ECC CENTCOM 

Constructors, LLC, ASBCA No. 60647, 18-1 BCA ¶ 37,133 at 180,713, aff’d, 

779 F. App’x 750 (Fed. Cir. 2019). In ASBCA No. 63759, another of its 

consolidated appeals, NWCS appeals the alleged deemed denial of its claim for 

305 days of government delay, at least facially indicating it has met the 

prerequisite to defend against the default on that basis.
5

I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA Nos. 63548, 63549, 63641, 

63642, 63733, 63750, 63751, 63759, 63760, 63761, 63762, Appeals of North Wind 

Construction Services, LLC, rendered in conformance with the Board’s Charter.

Dated: February 13, 2024

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals