               ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of –                                     )
                                                )
John’s Tile and Carpet Service                  )      ASBCA No. 61479
                                                )
Under Contract No. N00189-17-P-1148             )

APPEARANCE FOR THE APPELLANT:                          Mr. John Newsome
                                                        Owner

APPEARANCES FOR THE GOVERNMENT:                        Craig D. Jensen, Esq.
                                                        Navy Chief Trial Attorney
                                                       Andrew N. Christopher, Esq.
                                                        Trial Attorney

             OPINION BY ADMINISTRATIVE JUDGE SHACKLEFORD

         This is an appeal from a final decision terminating for cause a contract for
delivery, replacement and installation of carpet tiles at a building on Naval Station
Norfolk. The parties elected to submit the appeal on the record pursuant to Board
Rule 11. The government submitted a Rule 11 brief and appellant asked us to consider
its letter of May 11, 2018 and its responses to the government’s discovery requests
dated September 6, 2018 as its Rule 11 brief. No replies were submitted. In addition
to the briefs, the record consists of the Rule 4 file submitted by the government.

                                  FINDINGS OF FACT

       1. Solicitation No. N0018917Q0115 was a request for quotations (RFQ) issued
as a small business set aside for Carpet Replacement and Installation at Sewells Point
Safety Office Naval Station Norfolk, for a firm fixed price in accordance with an
attached Statement of Work (SOW). (R4, tab 1 at 1-3, 44) *

         2. In pertinent part the SOW provided as follows:

               Remove existing carpet tiles and install new carpet tiles in
               offices as well as common areas. Carpeting shall be
               installed by trained installers trained in the installation of
               commercial carpeting in projects of similar size and scope
               specified herein. Carpet replacement work activities shall

*
    Page numbers refer to consecutive numbers on the documents and not the original
         pagination on each document.
              include removal of old carpet and installation of new
              carpet tiles. The Contractor shall retain debris including
              old carpet tiles, empty cardboard containers, adhesive
              rollers, plastic sheets, etc. and legally dispose the debris.
              Scrape old glue or tile pieces, if stuck to the floor surface.
              The floor surface to receive new carpet shall be smooth,
              free from loose particles or any foreign materials or
              humps. If the Contractor spills any adhesive, or in any
              way soils the walls or other furnishings, the Contractor
              shall clean up using a specialist at the Contractor’s
              expense.

              The Contractor shall move the modular workstations and
              office furniture to install carpet behind/under them.
              Following completion of carpet replacement in each phase,
              the Contractor shall return the furniture to their original
              position.

              The Contractor shall bear complete responsibility for
              management of carpeting work at site, control for the
              sub-contracted services, and complete responsibility for
              safe performance of work at site and comply with all local
              laws pertaining to construction labor and safety.

(R4, tab 1 at 44)

        3. A mandatory pre-quote site visit was set forth in the SOW and it was held on
July 19, 2017 (R4, tab 1 at 43, tab 17 at 180; see also finding 5 below). On August 8,
2017, Commercial Items Contract No. N0018917-P-1148 was awarded to John’s Tile
and Carpet Service (JTCS or appellant) to perform carpet replacement and installation
at the firm fixed-price of $31,680 in accordance with the SOW (which was also included
in the contract) and with a delivery date of October 7, 2017 (R4, tab 2 at 55, 57, 74-75).

        4. The contract incorporated by reference FAR 52.212-4, CONTRACT
TERMS AND CONDITIONS—COMMERCIAL ITEMS (JAN 2017) which included
the following relevant provisions:

              (a) Inspection/Acceptance. The Contractor shall only
              tender for acceptance those items that conform to the
              requirements of this contract. The Government reserves
              the right to inspect or test any supplies or services that
              have been tendered for acceptance. The Government may
              require repair or replacement of nonconforming supplies or


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re-performance of nonconforming services at no increase
in contract price. If repair/replacement or re-performance
will not correct the defects or is not possible, the
Government may seek an equitable price reduction or
adequate consideration for acceptance of nonconforming
supplies or services. The Government must exercise its
post acceptance rights (1) within a reasonable time after
the defect was discovered or should have been discovered;
and (2) before any substantial change occurs in the
condition of the item, unless the change is due to the defect
in the item.

       ....

(f) Excusable delays. 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.

       ....

(m) Termination for cause. The Government may
terminate this contract, or any part hereof, for cause in the
event of any default by the Contractor, or if the 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


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              terminated this contract for default, such termination shall
              be deemed a termination for convenience.

                     ....

              (o) Warranty. The Contractor warrants and implies that
              the items delivered hereunder are merchantable and fit for
              use for the particular purpose described in this contract.

(R4, tab 2 at 58-59, 62)

       5. The SOW included a clause making a site visit mandatory, as follows:

              Dimensions of the work station provided on this
              solicitation are estimated only. Quoters are mandatory
              [sic] to visit the site in order to properly scope and
              measure the offices for the services required prior to
              submitting their quote. The first-hand knowledge and
              familiarity with the work site as a result of the site visit
              shall enable the vendor to provide and submit a reasonable
              price quote in response to this solicitation.

(R4, tab 1 at 43) The site visit was held on July 19, 2017 (id.).

       6. On August 17, 2019, after award of the contract, Mr. John Newsome (owner
of JTCS) visited the Navy office for an additional pre-performance site visit.
Ms. Charisse Averett, the Sewell Point Safety Office Hazard Abatement Supervisor
and the point of contact for the contract, escorted Mr. Newsome around the office,
showing him existing areas the contractor would have to correct, including humps in
the floor and uneven areas. (R4, tab 17 at 180-81)

      7. About two weeks after Mr. Newsome’s site visit, water leakage affected the
work site but it dried out by the time contract work began (id. at 181).

      8. Performance commenced on or about September 8, 2017 when a team of seven
workers removed the old carpet for disposal and prepared the floors for carpet installation
(compl. at 1). Work thereafter continued on various dates through October 2, 2017, and
on October 3, 2017, JCTS submitted an invoice to the contracting officer and stated:

              This is to inform you that John’s Tile & Carpet Service
              believes the carpet installation job has been completed.
              However, we understand there is an outstanding issue to be
              resolved and that you will be requested to provide a final


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              determination as to whether the job was completed
              satisfactorily. Please provide your feedback once that
              determination is made.

(R4, tab 4 at 83)

      9. Ms. Averett recounts that during an inspection of the work held on October 3,
2017 she and other Navy personnel noted several deficiencies in the work performed as
follows:

              a. Carpet is coming up
              b. Old glue not removed from the floor
              c. Can see seams in the carpet
              d. Glue is on top of new carpet
              e. Base cover not placed behind modular furniture
              f. Carpet not placed behind modular furniture
              g. Old carpet backing was not removed from the floor
              h. Glue adhesive was not placed in some areas
              i. Carpet looks discolored due to how it was placed

(R4, tab 6 at 91-92) Photographs of the defective work substantiate the allegation of
defective work (R4, tab 8 at 0098-0123).

        10. On October 3, 2017 the CO (Ms. Rashida Bennett), Ms. Averett, and
Mr. Newsome had a telephone discussion regarding the various performance issues
identified by Ms. Averett and the CO (id. at 92). Later that day the CO issued a cure
notice stating that the government considered the contractor’s failure to provide
satisfactory carpet installation to potentially form a basis for termination for cause.
Further she said that if the deficiencies were not cured immediately, she would
terminate the contract under FAR 51.212-4(m). (R4, tab 5 at 88)

       11. A walk-through between Navy and JCTS personnel was scheduled for and
took place on October 4, 2017. During the walk-through Naval personnel showed
Mr. Newsome areas in which the Navy believed the contract work was deficient,
including old glue which was not removed, old tile pieces that were not scraped from
the floors, carpets which were not installed in the right direction, humps that remained
in some areas, glue not sticking to the carpet, seams which were visible, carpet which
was not placed under and behind modular furniture and base covers not installed in all
areas. (R4, tab 7 at 93-95)

       12. Appellant responded to the cure notice on October 10, 2017 wherein
Mr. Newsome provided a timeline for work performed under the contract (R4, tab 12
at 137-38).


                                            5
        13. Mr. Newsome states that when all of the items that Ms. Averett wanted
reworked were completed, she was asked to and did perform an inspection. Upon
completion of that inspection, Mr. Newsome relates that she yelled at him in front of
several people, stated that he would get no money for the work because she was not
satisfied. Thereafter, according to Mr. Newsome, she ordered him to leave the base or
else she would have him removed by the military police. (Id. at 138) However,
photographs from that inspection continue to show defective work (R4, tab 15).

       14. Mr. Newsome “believes the work was performed in accordance with the
contract statement of work with the exception of installing the wall base behind the
workstations in the large area” and says that Ms. Averett took possession of the wall
base, for which he offered a discount for not having installed it. (Id.)

       15. On December 6, 2017, the contracting officer issued a final decision
terminating the contract for cause (R4, tab 19), and thereafter, JCTS filed a timely
notice of appeal dated December 21, 2017, received by the Board on January 10, 2018.

                                      DECISION

        A termination for default is a drastic sanction that should be imposed only for
good grounds and on solid evidence. J. D. Hedin Construction Co. v. United States,
408 F.2d 424, 431 (Ct. Cl. 1969). The government bears the burden of proving by a
preponderance of the evidence that the termination was justified. Lisbon Contractors,
Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987). If the government
establishes a prima facie case of the contractor’s default, then the contractor bears the
burden to show that its default was excusable or was caused by the government’s
material breach. Military Aircraft Parts, ASBCA No. 59978, 15-1 BCA ¶ 36,101
at 176,256. These principles apply equally in the case of a termination for cause under
FAR 52.212-4(m). Genome-Communications, ASBCA No. 57267, 11-1 BCA
¶ 34,699 at 170,889 (citing General Injectables & Vaccines, Inc., ASBCA No. 54930,
06-2 BCA ¶ 33,401 at 165,593), aff’d, 519 F.3d 1360, supplemented, 527 F.3d 1375
(Fed. Cir. 2008)).

       We find that the government has met its initial burden to show by a
preponderance of the evidence that the termination was justified. The photographic
evidence clearly shows that the work was defective and was not performed as required
by the contract. It is then the burden of appellant to show that its default was
excusable or was caused by the government’s material breach and it has failed to do
so.




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                                   CONCLUSION

      The appeal is denied.

      Dated: April 8, 2020




                                                 RICHARD SHACKLEFORD
                                                 Administrative Judge
                                                 Acting Chairman
                                                 Armed Services Board
                                                 of Contract Appeals


 I concur                                               I concur




 OWEN C. WILSON                                         MARK A. MELNICK
 Administrative Judge                                   Administrative Judge
 Vice Chairman                                          Armed Services Board
 Armed Services Board                                   of Contract Appeals
 of Contract Appeals


       I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 61479, Appeal of John’s
Tile and Carpet Service, rendered in conformance with the Board’s Charter.

      Dated: April 9, 2020


                                                 PAULLA K. GATES-LEWIS
                                                 Recorder, Armed Services
                                                 Board of Contract Appeals




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