CBCA 7832(5692)-REM

THIS OPINION WAS INITIALLY ISSUED UNDER PROTECTIVE ORDER AND IS BEING PUBLICLY RELEASED IN ITS ENTIRETY ON MARCH 26, 2025 GRANTED: March 14, 2025 CBCA 7832(5692)-REM EAGLE PEAK ROCK & PAVING, INC., Appellant, v. DEPARTMENT OF TRANSPORTATION, Respondent. Bennett J. Lee and Stephen L. Pessagno of Varela, Lee, Metz & Guarino, LLP, San Francisco, CA; and David B. Wonderlick of Varela, Lee, Metz & Guarino, LLP, Tysons Corner, VA, counsel for Appellant. Rayann L. Speakman, Office of the Chief Counsel, Federal Highway Administration, Department of Transportation, Vancouver, WA; and Milton Hsieh, Office of the Chief Counsel, Federal Highway Administration, Department of Transportation, Ashburn, VA, counsel for Respondent. Before Board Judges RUSSELL, KULLBERG, and SULLIVAN. RUSSELL, Board Judge. This appeal is before the Board on remand from the United States Court of Appeals for the Federal Circuit. See Department of Transportation v. Eagle Peak Rock & Paving, Inc., 69 F.4th 1367 (Fed. Cir. 2023). The Department of Transportation, Federal Highway Administration (FHWA or agency), awarded appellant, Eagle Peak Rock & Paving, Inc. CBCA 7832(5692)-REM 2 (Eagle Peak), a contract to perform construction work in Yellowstone National Park. FHWA terminated the contract for failure to prosecute the work with sufficient diligence to ensure that the contract would be completed within the time period required by the contract. The Board previously determined that the termination for default was improper and converted it to one for convenience. The Federal Circuit vacated our decision, concluding that we relied “heavily, though not exclusively, on [the Board’s] view of deficiencies in the contracting officer’s reasoning” for default “rather than on de novo findings about what the record developed in the Board proceeding showed about whether the standard for termination for default was met.” Eagle Peak, 69 F.4th at 1371. The Federal Circuit remanded the case “for the Board to adjudicate the case de novo on the record before it.” Id. Based on the record, which included a two-week hearing, the Board determines that the termination for default was improper and converts it to one for convenience. Findings of Fact I. The Contract A. Project Scope and Completion Dates On May 2, 2016, FHWA awarded Eagle Peak a contract to make improvements along 4.7 miles of Grand Loop Road in Yellowstone National Park, Wyoming, as well as nearby parking areas, trails, and overlooks. Respondent’s Final Complete Rule 4 File, Exhibit 231-10 (stipulations), ¶¶ 1, 2.1 The project consisted of four primary worksites: (1) Grand Loop Road (also sometimes referred to as the “Mainline”); (2) Inspiration Point; (3) Brink of the Upper Falls; and (4) Uncle Tom’s Point. Exhibit 1 (contract) at 000002, 000009, 000020-48; Exhibit 3 at 001307, 001313. Inspiration Point, Brink of the Upper Falls, and Uncle Tom’s Point are commonly referred to as the “Canyon Rim” sites or areas. Exhibit 3 at 001313. The project was scheduled for three construction seasons with an overall completion date of October 5, 2018, and an interim completion date for the Inspiration Point work of November 15, 2017. Exhibit 1 at 000082, 000218. The winter shutdowns were scheduled from November 11, 2016, to April 16, 2017, and from November 15, 2017, to April 15, 2018. Id. at 000217. The original contract had an estimated value of $28,049,200.62. Exhibit 231-10, ¶ 3. The original base contract was referred to as “Schedule B” and included work on Grand 1 All exhibits are found in FHWA’s Final Complete Rule 4 appeal file, unless otherwise noted. FHWA used “tab” numbers to designate exhibits. The exhibit numbers used herein correspond with the “tab” numbers used in the appeal file. CBCA 7832(5692)-REM 3 Loop Road at Inspiration Point and on the Brink of the Upper Falls. Id. With respect to the Brink of the Upper Falls, the Schedule B work included rehabilitation and reconstruction of trails and overlooks at this location. Id. The solicitation also required Eagle Peak to submit bids for certain options, namely options W, X, Y, and Z, which involved additional parking lot, trail, and overlook work at the Brink of the Upper Falls and Uncle Tom’s Point sites. Exhibit 231-10, ¶ 4. FHWA exercised these options via a unilateral modification dated July 14, 2016. Id.