CBCA 4079

DENIED: August 24, 2017 CBCA 4079 ASHEVILLE JET CHARTER AND MANAGEMENT, INC., Appellant, v. DEPARTMENT OF THE INTERIOR, Respondent. Frank G. Podesta of FGP Law, LLC, Roswell, GA, counsel for Appellant. John J. Hockberger, Jr., Office of the Solicitor, Department of the Interior, Boise, ID, counsel for Respondent. Before Board Judges SOMERS, SULLIVAN, and LESTER. SULLIVAN, Board Judge. In a previous decision, Asheville Jet Charter & Management, Inc. v. Department of the Interior, CBCA 4079, 16-1 BCA ¶ 36,373, the Board determined that the contracting officer of the Department of the Interior (DOI or agency) properly found that Asheville Jet Charter and Management, Inc. (Asheville) was in default under its contract to provide flight services to DOI. We could not determine, based upon the record at the time, whether Asheville had established a valid defense under the excusable delay clause, sufficient to have us invalidate the contracting officer’s decision to terminate the contract for cause. Specifically, we could not evaluate the reasons for the resignations of its key personnel and whether they were beyond Asheville’s control. Id. at 177,303. Based upon additional discovery taken since that ruling, DOI has moved for summary relief, asserting that Asheville has no evidence to support its contention that a strike or a similar labor action CBCA 4079 2 occurred that was beyond its control and for which it should not be held responsible.1 For the reasons that follow, the Board grants DOI’s motion and denies the appeal. Background We presume familiarity with our previous decision, in which we set forth undisputed facts regarding the contract and the events that led to the termination. Since we issued that decision, the parties have deposed the current and former owners of Asheville and supplemented the appeal file.2 We set forth here additional facts alleged by Asheville in opposition to DOI’s motion based upon this further evidence. The remaining focus of the parties’ dispute is whether the actions of Asheville’s former personnel constituted a strike that renders Asheville’s failure to perform excusable. Three key personnel resigned from Asheville–its operations director, its chief pilot and its maintenance chief. Appellant’s Statement of Genuine Issues of Fact ¶¶ 42, 54. Without personnel in these three positions, Asheville was required to notify the Federal Aviation Administration (FAA) of these resignations, and the FAA suspended Asheville’s license to fly. Id. ¶ 55. Without this license, Asheville could not perform scheduled flights to and from the Midway Islands. Id. ¶ 57. Asheville contends that these key personnel resigned on the same day (June 14, 2014), in concert with one another and without any notice to any Asheville management. Appellant’s Statement of Genuine Issues of Fact ¶¶ 42-43. Asheville first learned of the 1 DOI fashions its motion as one for reconsideration, asking the Board to reconsider its decision that there are facts that need to be developed regarding the strike issue before a decision can be reached. Because the parties have undertaken discovery and supplemented the record since the original summary relief briefing, the Board views DOI’s motion as a new motion for summary relief on the issue of the excusability. 2 DOI also submitted the declarations of the three former employees of Asheville. Asheville moved to strike these declarations because DOI did not identify these individuals in response to an interrogatory seeking the names of all persons that “may have knowledge of any facts or circumstances concerning any and all claims or defenses made in this action.” Appellant’s Motion to Strike, Attachment A. Because the Board does not consider these declarations in resolving DOI’s motion to strike, we deny the motion to strike as moot. CBCA 4079 3 resignations from an individual at the Nature Conservancy and never received formal notice from the individuals themselves.3 Id. ¶¶ 43, 45, 49. Asheville further contends that these individuals resigned as an attempt to wrest control of the company out of the hands of the new management and restore the former president of the company.