ASBCA 62134

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Molly Jessie Company ) ASBCA No. 62134 ) Under Contract No. FA440719PA002 ) APPEARANCE FOR THE APPELLANT: Mr. Greg Ryan Principal APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. Air Force Deputy Chief Trial Attorney Lawrence M. Anderson, Esq. Lt Col Scott A. Van Schoyck, USAF Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD This is an appeal from a final decision terminating the subject contract for cause. The appellant has elected Board Rule 12.3, Accelerated Procedure, and the parties have agreed to a record submission under Board Rule 11. Each party filed an initial brief. Appellant filed a reply brief and the government answered that reply. In addition to the briefs, the record includes the government's Rule 4 file (R4, tabs 1-74), two documents submitted by appellant with its initial brief (exs. A-1, -2) and an affidavit from Mr. Ryan. Also included are several photographs from the government's Rule 4 file upon which appellant has added commentary. Only the propriety of the termination for cause is before us. FINDINGS OF FACT 1. On February 27, 2019, the Air Force, on behalf of Cardinal Creek Golf Course (government) awarded Contract No. F A4407 l 9PA002 ( contract) to Molly Jessie Company (appellant or MJC) to perform three line items of work. Item No. 001 was to perform tree removal, root pruning and canopy pruning in accordance with the contract's Statement of Work (SOW) in the amount of$17,100. (R4, tab 3 at 4-5) 2. Item No. 0002 was to perform Option No. 2, remove all trees behind the third tee including driving range side of fence - hole # 3 in accordance with the SOW for the amount of $1,700. Item No. 0003 was to perform Option No. 3, Remove 3 Cotton Wood Trees behind the 15th green and other work near holes 5, 6, 7, 11, 14 and 15 for the amount of $2,500. (R4, tab 3 at 4-5)  3. The- period of performance set forth in the contract was February 20, 2019 to March 20, 2019 for Item Nos. 1, 2 and 3 (R4, tab 3 at 10). 4. The contract included Paragraph 13, Termination for Cause. which provided: a. The NAFI may, subject to paragraphs c. and d. below, by written notice of cause to the Contractor, terminate this contract in whole or in part if the Contractor fails to- ( 1) Deliver the supplies or perform the service within the time specified within this contract or any extension; (2) Make progress, so as to endanger performance of this contract (however, see paragraph b. below); or (3) Perform any of the other provisions of this contract (however see paragraph b. below). b. The NAFI's right to terminate this contract under paragraph a. 2. and a. 3. above, may be exercised if the Contractor does not cure such failure within 10 days (or more if authorized in writing by the Contracting Officer) after receipt of notice from the Contracting Officer specifying the failure. c. If the NAFI terminates this contract in whole or in part, it may acquire, under the terms and in the manner the Contracting Officer considers appropriate, supplies or services similar to those terminated, and the Contractor will remain liable to the NAFI for any excess costs for those supplies or services. However the Contractor must continue the work not terminated. d.... The Contractor shall not be liable for any excess costs if the failure to perform the contract arises from causes beyond the control and without the fault or negligence of the Contractor. Examples of such causes include: (1) Acts of God or of the public enemy (2) Act of the NAFI in either its sovereign or contractual capacity (3) Fires (4) Floods (5) Epidemics (6) Quarantine restrictions 2  (7) Strikes (8) Freight embargoes (9) Unusually severe weather g.