ASBCA 61673

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeals of - ) ) Nauset Construction Corporation ) ASBCA Nos. 61673, 61674, 61675 ) Under Contract No. W912SV-13-C-0007 ) APPEARANCES FOR THE APPELLANT: John J. McNamara, Esq. Elise M. Kuehn, Esq. Lane McNamara LLP Southborough, MA APPEARANCES FOR THE GOVERNMENT: Dana J. Chase, Esq. Army Chief Trial Attorney MAJ Danielle C. Naser, JA MAJ Joshua A. Reyes, JA Trial Attorneys OPINION BY ADMINISTRATIVE JUDGE HAMADY ON THE GOVERNMENT’S MOTION TO DISMISS Pending before the Board is a motion filed by the Department of the Army (government) to dismiss Nauset Construction Corporation’s (Nauset) pre-termination monetary and delay claims, specifically ASBCA Nos. 61673 and 61674. 1 On May 5, 2021, the Board dismissed ASBCA No. 61675, to the extent it challenged the default termination for lack of jurisdiction because that portion of Nauset’s claim was time-barred. Nauset Constr. Corp., ASBCA Nos. 61673, 61675, 21-1 BCA ¶ 37,852 (Nauset I). The Federal Circuit affirmed the decision. Nauset Constr. Corp. v. Sec’y of the Army, 2024 WL 911865 (Fed. Cir. Mar. 4, 2024). We presume familiarity with the facts of Nauset I. 2 For the reasons stated below, we deny the government’s motion. 1 The government’s motion to dismiss does not address the remaining monetary aspects of ASBCA No. 61675, that were not addressed by the Board’s opinion in Nauset I. Accordingly, this decision is limited to ASBCA Nos. 61673 and 61674. 2 Nauset I presents the facts in greater detail. In this decision, we only discuss the facts necessary to resolve the government’s motion.  STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. Nauset submitted a certified claim (ASBCA No. 61673) to the government’s contracting officer (CO) on May 12, 2017, seeking an equitable adjustment in the amount of $2,563,622 and a time extension of 598 days in compensation for various delays it attributed to the government (R4, tabs 182-85). 2. Nauset submitted a second certified claim (ASBCA No. 61674) in the amount of $291,833.84 to the CO on behalf of its subcontractor, Griffin Electric, on August 31, 2017 (R4, tab 188). 3. The government terminated the contract for default on November 17, 2017 (R4, tab 39 at 2). 4. On February 12, 2018, Nauset submitted a third certified claim (ASBCA No. 61675), contesting the validity of the default termination and requesting an equitable adjustment in the amount of $1,076,189 in costs it incurred from November 2016 through the date of the termination (R4, tab 200). 5. On June 27, 2018—222 days after the termination for default was issued— Nauset appealed the termination to the Board and its three claims for which the contracting officer failed to issue a final decision (see Notice of Appeal dtd. June 27, 2018). 6. The government filed a motion to dismiss ASBCA Nos. 61673 and 61675 for lack of jurisdiction and to dismiss Nauset’s wrongful termination claim (included as part of ASBCA No. 61675) as untimely on December 26, 2018 (gov’t mot. to dismiss dtd. December 26, 2018). 7. On May 5, 2021, the Board determined it possessed jurisdiction over ASBCA Nos. 61673 and 61675; however, it dismissed ASBCA No. 61675 to the extent it appealed the default termination for lack of jurisdiction because that portion of the claim was time-barred. Nauset I, 21-1 BCA ¶ 37,852 at 183,820-21. 8. Nauset filed a motion for reconsideration of the dismissal of its termination claim on May 26, 2021, which the Board denied on January 26, 2022. Nauset Constr. Corp., ASBCA No. 61673 et al., 22-1 BCA ¶ 38,052 at 184,769. 9. The Federal Circuit upheld the Board’s dismissal of Nauset’s termination claim on March 4, 2024. Nauset Constr. Corp., 2024 WL 911865. 2  DECISION The Parties’ Contentions The government moves to dismiss ASBCA Nos. 61673 and 61674 on the grounds they are barred by a valid termination for default and the doctrines of collateral estoppel and res judicata (gov’t mot. at 1, 3, 4-6; gov’t reply at 1, 35-38).