ASBCA 64037

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of - ) ) Bryan Ashush JV ) ASBCA No. 64037 1 ) Under Contract No. W912GB-23-C-0005 ) APPEARANCE FOR THE APPELLANT: Casey J. McKinnon, Esq. Cohen Seglias Pallas Greenhall & Furman PC Washington, DC APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq. Engineer Chief Trial Attorney Cara M. Mroczek, Esq. Rebecca L. Bockmann, Esq. Engineer Trial Attorneys U.S. Army Engineer District, Middle East Winchester, VA OPINION BY ADMINISTRATIVE JUDGE SWEET ON THE GOVERNMENT’S PARTIAL MOTION TO DISMISS Appellant Bryan Ashush JV (BAJV or appellant) appeals the deemed denial of its claim seeking to be excused from performing a contract between it and the United States Army Corps of Engineers (Corps or government). The government has moved (Motion) to dismiss or strike portions of BAJV’s complaint (Complaint), arguing that the Complaint requests injunctive relief that the Board does not possess jurisdiction to grant. BAJV argues that the Complaint merely requests declaratory relief that the contract should be terminated for convenience. As discussed in greater detail below, the Complaint seeks injunctive relief that we do not possess jurisdiction to grant, and declaratory relief that we do possess jurisdiction to grant. Thus, we grant the Motion in part, and deny it in part. 1 Appellant has filed two additional notices of appeal, docketed as ASBCA Nos. 64184 and 64185. Those appeals have been consolidated with this appeal; however, the Corps’ Motion and our opinion deal only with the Complaint filed in ASBCA No. 64037.  STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 1. On August 2, 2023, the Corps awarded BAJV Contract No. W912GB-23-C- 0005 (Contract) for the construction of a “Life Support Area” in Israel (R4, tab 3 at 1- 2). The Corps issued an administrative notice to proceed (NTP) on September 12, 2023 (compl. ¶ 10; answer ¶ 10), and planned to issue a construction NTP on October 15, 2023 (answer ¶ 13). 2. Before it issued that construction NTP, however, a war between Hamas and Israel began on October 7, 2023 (compl. ¶ 13; answer ¶ 13). The Corps issued a suspension of work order on November 7, 2023 (compl. ¶ 14), but lifted it on January 17, 2024 (id. ¶ 15; answer ¶ 15). The Corps did not issue the construction NTP until June 5, 2024 (compl. ¶ 27; answer ¶ 27). 3. On August 1, 2024, BAJV filed a claim with the contracting officer (CO) requesting that it be excused from further performance (R4, tab 2 at 1). The claim alleged that the Corps’ failure to issue the construction NTP until 10 months after award constituted a material breach, a cardinal change, and rendered performance impracticable (id. at 2-6). The Corps did not respond to the claim, leading BAJV to file this appeal as a deemed denial on December 13, 2024. 4. Like its claim, BAJV’s three-count Complaint alleges material breach of contract, cardinal change, and commercial impracticability. The concluding paragraphs of the Complaint’s statement of facts, the second count, and the third count allege that the Corps’ conduct excuses BAJV from further performance under the contract, “which should be terminated for convenience” (compl. ¶¶ 28, 55, 66). Similarly, the concluding paragraph of the first count alleges that “BAJV is entitled to discontinue its performance and have the Contract terminated for convenience” (id. ¶ 44). 5. The Complaint’s prayer for relief makes two requests: that “the Board (1) find that [BAJV’s] performance obligations under the Contract are excused and (2) direct the Government to terminate the Contract for convenience” (id. at 10). DECISION Analysis While the Board does not possess jurisdiction over BAJV’s request that we direct the government to terminate the Contract for convenience, we possess jurisdiction over BAJV’s request that we find that the government’s material breach, a cardinal change, and impossibility excuse BAJV’s performance. Under the Contract Disputes Act (CDA), 41 U.S.C.