ASBCA 59078

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of -- ) ) Lawn Legends LLC ) ASBCA No. 59078 ) Under Contract No. W9127S-13-D-0005 ) APPEARANCE FOR THE APPELLANT: Mr. Jay McKnight Managing Member APPEARANCES FOR THE GOVERNMENT: Thomas H. Gourlay, Jr., Esq. Engineer Chief Trial Attorney S. DeAnn Lehigh, Esq. Engineer Trial Attorney U.S. Army Engineer District, Little Rock OPINION OF ADMINISTRATIVE JUDGE MCILMAIL INTRODUCTION The U.S. Army Corps of Engineers (Corps) contracted with appellant for lawn mowing services at a national park. After issuing two delivery orders, and after appellant performed at least some services pursuant to those delivery orders, the Corps terminated the contract and the delivery orders for default. Appellant seeks reversal of the termination, and an award of lost income. The parties have elected to proceed without a hearing, under Rule 11 of the Board's rules. We dismiss the request for a monetary award, without prejudice, for lack of jurisdiction. Otherwise, we deny the appeal. FINDINGS OF FACT In March 2013, the Corps and Lawn Legends LLC (appellant) entered into Contract No. W9127S-13-D-0005, an indefinite-delivery, indefinite-quantity (IDIQ) contract for lawn mowing and "bush hogging" services in Piedmont, Missouri (R4, tab C-1 at 1, 30-31 ). 1 The contract provided for a base year of 8 March 2013 through 7 March 2014, and two option years (id. at 31 ). 1 "Bush hogging" or "brush hogging" is a form of clearing land of brush around trees and rocks using a heavy-duty mowing device called a "bush hog" or "brush hog," which is, generally, attached to the back of a tractor.  The contract incorporates by reference Federal Acquisition Regulation (FAR) clause 52.212-4, CONTRACT TERMS AND CONDITIONS--COMMERCIAL ITEMS (FEB 2012) (R4, tab C-1 at 12), which, at paragraph (m), Termination for cause, provides: The Government may terminate this contract, or any part hereof, for cause in the event of any default by the Contractor, or ifthe Contractor fails to comply with any contract terms and conditions, or fails to provide the Government, upon request, with adequate assurances of future performance. In the event of termination for cause, the Government shall not be liable to the Contractor for any amount for supplies or services not accepted, and the Contractor shall be liable to the Government for any and all rights and remedies provided by law. If it is determined that the Government improperly terminated this contract for default, such termination shall be deemed a termination for convenience. At paragraph (f), Excusable delays, the clause provides: The Contractor shall be liable for default unless nonperformance is caused by an occurrence beyond the reasonable control of the Contractor and without its fault or negligence such as, acts of God or the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of common carriers. The Contractor shall notify the Contracting Officer in writing as soon as it is reasonably possible after the commencement of any excusable delay, setting forth the full particulars in connection therewith, shall remedy such occurrence with all reasonable dispatch, and shall promptly give written notice to the Contracting Officer of the cessation of such occurrence. Section 1.6.14.2 of the contract's Performance Work Statement (PWS) provides: When the contractor experiences delays due to circumstances beyond his control, the Government may allow the contractor to work additional hours beyond normal duty hours (8:00 a.m. and 4:30, Monday through 2  Friday) and on non-scheduled days, i.e, and weekends, with prior approval from the COR on a case by case basis. (Id.