CBCA 7269

APPELLANT’S MOTION FOR SUMMARY JUDGMENT DENIED; RESPONDENT’S MOTION FOR SUMMARY JUDGMENT GRANTED IN PART: March 24, 2025 CBCA 7269, 7675, 7784, 7898, 7899, 7900, 7919, 8022 JITA CONTRACTING, INC., Appellant, v. DEPARTMENT OF TRANSPORTATION, Respondent. Ivan A. Sarkissian and Nathaniel Rioux Jordan of McConaughy & Sarkissian, P.C., Denver, CO, counsel for Appellant. Jack F. Gilbert and Emma R. Vyncke, Office of Chief Counsel, Federal Highway Administration, Department of Transportation, Lakewood, CO, counsel for Respondent. Before Board Judges BEARDSLEY (Chair), SULLIVAN, and CHADWICK. CHADWICK, Board Judge. A subagency of respondent, Department of Transportation (DOT), terminated for default a road construction contract with appellant, JITA Contracting, Inc. (JITA). In these eight consolidated appeals, JITA challenges the termination and seeks delay damages and the return of amounts withheld for delay. Both parties move for summary judgment. We grant DOT’s motion in part and otherwise deny the motions. CBCA 7269, 7675, 7784, 7898, 7899, 7900, 7919, 8022 2 We reject JITA’s argument that the default termination was invalid because DOT lost its right to enforce the completion date in the contract. We reject—largely as unsupported by citations to record evidence—DOT’s arguments for summarily sustaining its termination claim and for denying JITA’s claims based on project delay. We agree with DOT, however, that the contract included price disincentives for failure to meet an interim completion date, so we grant DOT’s motion to that limited extent. Background We deem the following facts to be undisputed based on the amended statements of undisputed material facts, amended statements of genuine issues, and record evidence cited in those filings. See Board Rule 8(f)(1), (2) (48 CFR 6101.8(f)(1), (2) (2023)); Avue Technologies Corp. v. Department of Health & Human Services, CBCA 8087(6360)-REM, et al., 24-1 BCA ¶ 38,617, at 187,709 n.1.1 JITA and the Federal Highway Administration, a DOT component, executed the contract for road work in Mesa Verde National Park in Colorado on February 4, 2021. The contract divided the work into schedule A (the primary work) and three awarded options. The completion date for the schedule A work, reconstructing a roadway “loop,” was June 15, 2021. Work on at least one of the options could not begin until the primary work was finished, and all work including the options was to be completed by September 6, 2021. The contract contained provisions for weather delays, but the parties do not direct us to any indication that the work was limited to certain seasons of the year. The contract included both “disincentive deductions” from the contract price if JITA did not timely complete the schedule A work and a table of graduated “liquidated damages” 1 Consistent with Avue Technologies, we disregard unexplained demurrals in the statements of genuine issues. DOT, for example, “refers the Board” generally “to the plans and specifications” as clarifying evidence. We will not search the exhibits and guess what DOT means. “[I]t is the duty of counsel, not the Board, to advocate for their respective clients.” Lebolo-Watts Constructors 01 JV, LLC, ASBCA 59740, et al., 21-1 BCA ¶ 37,789, at 183,426 (2020), aff’d, No. 21-1749, 2022 WL 499850 (Fed. Cir. Feb. 18, 2022). We also disregard exhibits to DOT’s amended statement of genuine issues that are not Rule 4 appeal file exhibits. The Board ordered in March 2022 that “[s]tatements filed under Rule 8(f)(1) and (2) shall cite appeal file exhibits rather than separate exhibits attached to briefs, except for deposition excerpts. This may require a movant to coordinate its supplementation of the appeal file with the drafting of its motion.” (Emphasis omitted.) CBCA 7269, 7675, 7784, 7898, 7899, 7900, 7919, 8022 3 starting at $1600 per day for late completion of the entire contract.2 The contract referred to the schedule A completion date as “an interim completion date.” It further stated: “Failure to substantially complete the work within the timeframe described below [the June 15, 2021, interim completion date] will result in the assessment of disincentives at a rate of $2,700 per calendar day. If Schedule A only is awarded, the disincentive deductions will be in addition to any Contract administration liquidated damages.” The agency issued the notice to proceed on or about March 8, 2021.