          In the United States Court of Federal Claims
                                      No. 14-1121C

                              (E-Filed: February 15, 2019)

                                         )
STATE CORPS,                             )
                                         )
                      Plaintiff,         )
                                         )         Contract Disputes Act, 41
v.                                       )         U.S.C. § 7104(b)(4) (2012);
                                         )         Termination for Default;
THE UNITED STATES,                       )         Motion for Summary
                                         )         Judgment, RCFC 56(a); Waiver
                      Defendant.         )         of Default Not Found.
                                         )

R. Dale Holmes, Philadelphia, PA, for plaintiff.

Amanda L. Tantum, Senior Trial Attorney, with whom appeared Chad A. Readler,
Acting Assistant Attorney General, Robert E. Kirschman, Jr., Director, and Allison Kidd-
Miller, Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, DC, for defendant. Pietro Mistretta, Assistant
District Counsel, United States Army Corps of Engineers, of counsel.

                                   OPINION AND ORDER

CAMPBELL-SMITH, Judge.
       Plaintiff State Corps (also referred to as SC) is an Afghani corporation that was
awarded a construction contract for a logistics center in Jariyan al Batnah, Qatar by the
United States Army Corps of Engineers (USACE). See ECF No. 1 at 1-3 (plaintiff’s
complaint). Defendant terminated the contract for default, and plaintiff now challenges
that decision and seeks additional compensation allegedly due to plaintiff under the terms
of the contract. See id.

        Presently before the court are the parties’ motions for summary judgment. In
evaluating the motions, the court considered the following: (1) plaintiff’s revised motion
for summary judgment, ECF No. 58; (2) plaintiff’s proposed findings of uncontroverted
facts, ECF No. 59; (3) defendant’s response to plaintiff’s proposed findings of
uncontroverted facts, ECF No. 63; (4) defendant’s proposed findings of uncontroverted
facts, ECF No. 64; (5) defendant’s response to plaintiff’s motion and its cross-motion for
summary judgment, ECF No. 67; (6) plaintiff’s response to defendant’s cross-motion and
reply in support of its motion, ECF No. 70; (7) plaintiff’s response to defendant’s
proposed findings of uncontroverted facts, ECF No. 71; (8) defendant’s reply in support
of its cross-motion, ECF No. 75; and (9) defendant’s notice clarifying its proposed
findings of uncontroverted facts, ECF No. 77. The court deemed oral argument
unnecessary.

      For the following reasons, plaintiff’s motion for summary judgment is DENIED,
and defendant’s cross-motion for summary judgment is GRANTED.

I.    Background

      A.     Contract Requirements and Performance before July 24, 2013

      On August 20, 2012, the USACE awarded plaintiff contract number W912ER-12-
C-0046 (the contract), to construct the United States Army Central Logistics Extension
Center (ARCENT Center) in Jariyan al Batnah, Qatar, and notified plaintiff of the award
on August 21, 2012. See ECF No. 64-1 at 1-3. The contract provided that:

      The Contractor shall be required to (a) commence work under this contract
      within 15 calendar days after the dates the Contractor receives the notice to
      proceed, (b) prosecute the work diligently, and (c) complete the entire work
      ready for use not later than 300 calendar days.

Id. at 20. The USACE issued its notice to proceed on September 27, 2012, see id. at 90,
which resulted in a required completion date of July 24, 2013, see id. at 293-94.

       Under the terms of the contract, plaintiff was required to submit for approval a
variety of items related to its performance, such as: (1) “Shop Drawings” (“Drawings,
diagrams and schedules specifically prepared to illustrate some portion of the work”); (2)
[“]Product Data” showing the “size, physical appearance and other characteristics of
materials or equipment for some portion of the work”; (3) “Physical examples of
materials, equipment or workmanship”; and (4) “[O]perating and maintenance [O&M]
data” for equipment to allow “the safe and efficient operation, maintenance and repair of
the item.” Id. at 50-52. When making such submittals, unless otherwise specified for a
particular item, plaintiff was required to allow a minimum of seven calendar days
exclusive of mailing time for the USACE’s review and approval process. Id. at 54.

      The default clause in the contract states:

      If the Contractor refuses or fails to prosecute the work for any separable part,
      with the diligence that will insure its completion within the time specified in
      this contract including any extension, or fails to complete the work within

                                             2
       this time, the Government may, by written notice to the Contractor, terminate
       the right to proceed with the work . . . that has been delayed.

ECF No. 64-1 at 37. It further provides that, in the event of a delay in completing the
work:

       [t]he Contractor’s right to proceed shall not be terminated nor the Contractor
       charged with damages under this clause, if—

       (1) The delay in completing the work arises from unforeseeable causes
       beyond the control and without the fault or negligence of the Contractor . . .

       and

       (2) The Contractor, within 10 days from the beginning of any delay (unless
       extended by the Contracting Officer), notifies the Contracting Officer in
       writing of the causes of the delay.

Id.

       Throughout late 2012 and until the expected completion date of July 24, 2013,
numerous issues arose with the contract performance, about which the parties frequently
corresponded. See ECF No. 64 at 15-19 (defendant summarizing the course of
correspondence); ECF No. 71 at 7 (plaintiff objecting in several instances to the
paraphrasing or characterization of specific correspondence, but not objecting to the fact
of the correspondence). This course of correspondence included a letter from plaintiff to
the contracting officer, dated June 13, 2013, which reads as follows:

       This is a formal response to the cure notice that was given to State Corps on
       the 3rd of June 2013.

       First of all, I would like to apologize on behalf of State Corps that it came
       down to us being issued a cure notice. This is our first Governmental contract
       in Qatar and we have always tried for successful completion of this project.
       This is no excuse for being behind on the schedule but unfortunately we had
       experienced some challenges at the start of the project which included getting
       the company registered in Qatar and developing our team there.

       One of the major challenges we had at the start of the project included the
       base’s security requirements and getting badges for our staff which delayed
       our early start and some issues with our previous QCMs and the first Project
       Manager which put the project 110 days behind the schedule in which [] State
       Corps received an unsatisfactory notice of no work performed.

                                             3
Now we have the right technical team, Hardworking subcontractor and are
done with Badge’s issues and feel that we are able to complete the project
according to the contract requirements and time frame.

Despite the fact that we have had good construction performance onsite
during last one month, but faced some issues with our QCM program in Qatar
which caused some delay in submittal process of the project, Three weeks
ago we brought a change to the QCM position of the project and assigned
another QC Manager. With his knowledge, expertise and leadership, now
we feel that submittal process is becoming a smooth process.

Since the Cure Notice, we have received “A” and “B” codes on 10 out of 18
submittals, 5 Have been submitted to COR which are under review and 3 are
being worked and will be submitted to the COR in the next couple of days,
during the last 10 days our team have been able to submit the majority of the
items which needed to be submitted, It can show the adequacy of our team
and efforts of State Corps for successful and soon completion of the project.

On the other hand, as indicated in the attachment “Appendix A” almost all
of the long lead items have been approved, purchased and will be on site
within next one month, which will bring a large improvement to site
construction progress.

For more information about how we can overcome the delay and complete
the project, you can kindly refer to attached recovery Plan “Appendix A”
which clearly shows our plan for next months.

Currently there are a few long lead item submittals that will not meet the
current Contract completion date, So State Corps would like to request from
the US Army Corps of Engineers if it is possible to exercise for a 30 to 45
days time extension with an updated contract completion date of September
7, 2013. State Corps is committed to this project and is committed to US
Army Corps of Engineers and tries its best to complete this project by any
possible mean.

I have personally spoken with the project manager, John Hanen, and he is
fully accepted the responsibility of the project being behind. With the
headquarters, as well as the team in Qatar, we’ve come up with a recovery
plan that we feel will accomplish the completion of this project to the highest
standards that the US Army Corps of Engineers expects.

I am looking forward to hearing your kind instruction in this regard.


                                      4
       Respectfully,

       Jawed Haddad
       Vice President
       STATE CORPS

ECF No. 64-1 at 213-14. Plaintiff’s recovery plan, which was attached to the letter,
acknowledged that the “project is 3 week[s] behind schedule,” but stated that “this
recovery plan has been made in order for us to prove to our client that the project
completion on 24th of July is undeniably possible.” Id. at 216. The request for
additional time to complete the project included in this June 13, 2013 letter, is the only
such written request that plaintiff made to the contracting officer prior to the project due
date, July 24, 2013. See ECF No. 64-2 at 134 (plaintiff admitting this fact in response to
defendant’s request for admission).

       In its interrogatory responses, plaintiff identified a variety of alleged delays that
occurred entirely or primarily before the July 24, 2013 contract completion date,
including: (1) visa processing delays for its personnel; (2) delays in obtaining a license to
operate in Qatar; (3) delays related to base access; (4) delays related to the installation of
“Telecommunication Ductbanks”; (5) delays due to Qatari holidays; and (6) delays due to
weather conditions. See ECF No. 64-2 at 103-08. Plaintiff stated that these delays
totaled at least 110 days, plus an additional period of uncertain duration (estimated at
more than one week) for the delay relating to the installation of telecommunication
ductbanks. See id.

       Under the terms of the contract, the USACE was required to make monthly
progress payments as the work proceeded. See ECF No. 59 at 2; ECF No. 63-1 at 3. The
USACE made six such payments on the first six estimates submitted by plaintiff. See
ECF No. 59 at 2 (citing estimates submitted between February 11, 2013 and July 15,
2013, copies of which are found at ECF No. 59-1 at 14-50).

       B.     Events after July 24, 2013

       Plaintiff did not complete the project by July 24, 2013. In a letter to plaintiff dated
July 28, 2013, the contracting officer stated:

       Since State Corps has failed to perform within the time required by the
       terms of the contract, the Government is considering terminating said
       contract[,] pursuant to the Contract Clause 52.249-10, titled “Default (Fixed
       Price Construction)” and 52.211-10 “Commencement. Prosecution and
       Completion of Work[.]”



                                              5
       The US Army Corps of Engineers is writing this letter to formally inform
       State Corps of the government’s intention to pursue “Liquidated Damages”
       pursuant to the Contract Clause 52.211.12, titled “Default (LIQUIDATED
       DAMAGES—CONSTRUCTION)[.]”

       The legal completion date for this contract has passed and was to be
       completed on 24 July 2013.

ECF No. 64-1 at 286. On July 30, 2013, the contacting officer sent a more
comprehensive letter repeating her notification to plaintiff that the project was overdue,
that defendant intended to assess liquidated damages, and that defendant may terminate
the contract for default. See id. at 287-88. That letter stated, in relevant part, as follows:

       1.     The project completion date was 24 July 2013.
       2.     The contractor asked for an additional 30 to 45 days to complete the
              project.
       3.     The contractor’s recovery schedule indicates 60 days to 25 September
              2013.
       4.     The contractor has an exorbitant amount of submittals left to submit,
              some with time frames for submission that practically cannot be met.
              Additionally, with the amount of submittals left to submit and in
              relation to testing & commissioning, I’m doubtful that the contractor
              can meet the 25 September 2013 date for contract completion.
       ...

       1.     The Contractor shall submit a realistic Plan with dates for completing
              all outstanding submittals.
       2.     The Contractor shall submit a realistic Plan on how they intend on
              completing this project.
       3.     The contractor shall submit a realistic Recovery Schedule
              incorporating: Remaining Submittals, O&M Manuals, Training, Test
              Plans and Testing & commissioning activities.

              The contract completion date was 24 July 2013. This letter is also to
       notify you of the government’s intention to assess liquidated damages per
       contract clause 52.211-12.

               You are hereby notified that the Government considers your failure to
       perform a condition that is endangering completion of this contract in a
       timely matter. Therefore, unless this condition is cured within ten (10) days
       after receipt of this notice, the Government may terminate for default under
       the terms and conditions of the Contract Clause 52.249-10, titled “Default
       (Fixed Price Construction).” If a default occurs in a contract, the contractor

                                              6
       is precluded from being awarded future federal government contracts and the
       result could be very costly for the contractor. The Government reserves all
       right under the contract, including the right to terminate for default if the late
       performance is unexcused.

Id.

        On August 13, 2013, plaintiff wrote to the contracting officer stating that “[w]e
accept USACE claim on being behind schedule. The contract has to be closed by July 24
but yet it is on middle stage.” Id. at 293. Plaintiff also represents in the same letter that
its updated recovery plan “will be submitted on Aug 13, 2013 for USACE review and this
will be our last recovery schedule.” Id. One week later, the USACE sent a cure notice to
plaintiff rejecting the recovery plan “as being insufficient to determine a realistic project
completion date.” Id. at 295. The USACE also informed plaintiff that “[a]lthough a
modest time extension is under consideration by the Contracting Officer, you will likely
continue to be in default and subject to liquidated damages,” and that “Termination for
Default is also being discussed with the possibility that your performance bond will be
called.” Id. The USACE then advised plaintiff that it had “the ability to change these
outcomes,” and provided a list of matters that required immediate attention. Id.

       Plaintiff responded to the USACE’s concerns on August 25, 2013, and proposed
yet another recovery schedule. See id. at 297-329; ECF No. 64-2 at 1-5. On September
4, 2013, the USACE detailed a number of remaining deficiencies in plaintiff’s
performance and recovery plan and demanded a response within seventy-two hours. See
ECF No. 64-2 at 6-8. Twelve days later, on September 16, 2013, plaintiff responded to
each of the USACE’s concerns, and acknowledged, among other issues, that dozens of
submittals had not yet been made, and that significant uncertainty remained as to how the
fuel system would be installed. See id. at 9-10.

      On September 8, 2013, plaintiff submitted its seventh estimate for the monthly
progress payment due for work performed between July 8, 2013 and August 26, 2013.
See ECF No. 59 at 2; ECF No. 59-1 at 51-58. The estimate reflected a due date of
September 22, 2013. See ECF No. 59-1 at 51. The USACE failed to make the seventh
progress payment by September 22, 2013, and on September 24, 2013, the USACE
emailed plaintiff stating:

       We will need you to re-export pay request #7 Dated, 8 September 2013. This
       pay request has been inadvertently deleted on our end. We are aware that
       there will be interest penalties accrued on our part, due to late processing.
       Please notify us as soon as this is accomplished so we can again process the
       pay application.

ECF No. 59-1 at 59-60.

                                               7
        On September 23, 2013, the contracting officer issued a show cause letter to
plaintiff, stating that “[s]ince you have failed to perform within the time required by the
terms of the Contract, the Government is considering terminating said contract pursuant
to the Clause titled ‘Default’ of the contract clauses.” ECF No. 64-2 at 11. Therein, the
contracting officer explained that “we still do not have an accurate count of the submittals
still needed to complete this project” despite plaintiff’s repeated promises to complete the
submittals. Id. at 12. She also noted that plaintiff’s proposed “recovery schedule was
rejected because it was unrealistic and unachievable within the time[ ]frame of the
contract completion date,” claiming that plaintiff “simply shifted the dates arbitrarily with
no logic to explain why the completion date is slipping every time a schedule was
submitted.” Id. The letter identified several additional problems with the contract
performance. Id.

        The show cause letter concluded by affording plaintiff the opportunity to explain
its deficient performance.

       Pending a final decision in this matter, it will be necessary to determine
       whether your failure to perform arose out of causes beyond your control and
       without fault or negligence on your part. Accordingly, you are hereby
       afforded the opportunity to present, in writing, any facts bearing on the
       question to this office, within ten (10) days after receipt of this notice. Your
       failure to present any mitigating circumstances within ten (10) days after
       receipt of this notice may be considered as an admission that none exist.
       Your attention is invited to the respective rights of the contractor and the
       Government under the contract clause titled “Default” and the liabilities that
       may be invoked in the event a decision is made to terminate for default.

       Any assistance rendered to you on this contract or acceptance by the
       Government of delinquent goods or services thereunder, will be solely for
       the purpose of mitigating damages, and is not to be construed as a waiver of
       any rights the Government may have under subject contract.

Id. at 12-13.

       The next day, on September 24, 2013, the USACE wrote to plaintiff stating that it
had learned that on September 23, 2013, plaintiff’s “subcontractor and their
subcontractors did not show up on site,” and requiring plaintiff to “respond to this office
immediately when the subcontractor is coming back to the job site and your recovery
plans to complete this project.” Id. at 16. Also on September 24, 2013, the contracting
officer notified plaintiff of the USACE’s “intention to begin assessing liquidated
damages . . . at the rate of $4,694.00 per day for each calendar day following the contract
completion date until the work is completed.” Id. at 30. She also again repeated that the


                                              8
“Government reserves all rights under the contract, including the right to terminate for
default if the late performance is unexcused.” Id.

        In response to the show cause letter, plaintiff outlined a number of factors that it
claims contributed to the project delays in a letter dated October 4, 2013, including: (1)
early delays “mainly caused by making preparation and getting company registration in
Qatar,” which plaintiff contends were out of its control, id. at 43; (2) the fact that its
subcontractor “stopped working [o]n this project without any reasonable excuse on
September 22, 2013,” and the subsequent need to replace the subcontractor, id. at 43-47;
and (3) problems with the process of making submittals, that it claimed were still being
resolved, id. at 47. Plaintiff concludes the letter, stating that it “is willing to make any
effort to complete the project in a timely manner if USACE allows us to do so.” Id.
Plaintiff’s response to the show cause letter did not claim that its performance was
affected by the USACE’s failure to pay the seventh progress payment by September 22,
2013.

        The surety for payment and performance bonds on plaintiff’s contract was AAUG
Insurance. See id. at 50. In a letter dated October 23, 2013, the surety expressed its
willingness to negotiate an agreement by which it would take over responsibilities under
the contract in order to mitigate its damages. See id. at 51. The letter stated, in relevant
part, as follows:

       In order to do so, State Corps will need to consent to all of the terms of such
       an agreement, including the payment to AAUG of all amounts under or
       relating to the Contract and acknowledge that as between State Corps and
       AAUG, AAUG would now possess any and all rights to receive such
       payments. This would obviously work towards the completion of the project,
       which currently is in significant arrears and is currently subjecting your
       company to daily liquidated damages.

       ...

       Frankly, if AAUG is able to successfully take over the now lifeless project
       under contractual terms that can be agreed upon, State Corps may possibly
       recognize the mitigation of future additional liquidated damages that
       continue to accrue. We strongly suggest you provide such consent
       immediately.

Id. The USACE proposed to plaintiff that if plaintiff cooperated in the surety’s takeover
efforts, the USACE would not terminate plaintiff for default. Id. at 130 (plaintiff
admitting this fact in response to defendant’s request for admission).



                                              9
        Plaintiff initially indicated its assent to the takeover arrangement, stating on
October 31, 2013, that it would “complete the turnover agreement in couple of days and
further we are in close contact with our surety.” Id. at 52. The USACE and the surety
signed the takeover agreement on November 7, 2013, but the agreement also required
plaintiff’s signature. Id. at 70. Plaintiff, however, “changed course as of 14
Nov[ember],” and “[wa]s not cooperating with the takeover agreement,” as of November
15, 2013. Id.

        The contracting officer drafted a memorandum for the file outlining the reasons
for terminating plaintiff’s contract for default. Id. at 71-72. The memorandum read, in
part, as follows:

      In accordance with FAR 49.402-3, the Contracting Officer must consider the
      following factors on whether to terminate a contract for default:

      a. The terms of the contract and applicable laws and regulations.

      Contract clauses 52.236-7, Permits and Responsibilities, 52.249-10 Default,
      52.233-1 Disputes, and 52.211-10 Commencement, Prosecution and
      Completion of Work, among others, were included in the contract[] and
      apply to the issues attributed to this contractor and his lack of performance.
      The contract clearly states that the period of performance is mandatory. In
      addition, the submittal specifications clearly addressed the requirement of
      this project and they were not followed. This termination decision is in
      conformance with this factor.

      b. The specific failure of the contractor and the excuses for the failure.

      The contractor failed to make progress. The contract was awarded on August
      20, 2012, and notice to proceed (NTP) was issued on September 27, 2012.
      The contractor is thirteen months into the project and has completed only
      80% of the contract requirement. The period of performance was 300
      calendar days from NTP which would have been July 24, 2013. See Cure
      Notice and Show Cause letter. There is no reasonable likelihood that State
      Corps can perform the entire contract effort since the time has elapsed. This
      termination decision is in conformance with this factor.

      ...

      g. Any other pertinent facts and circumstances.

      As stated above, the Surety, AAUG indicates a willingness to attempt to enter
      into a takeover agreement to get the project completed. MED will substitute

                                            10
       the surety for State Corp[s] as the prime contractor; the surety will tender a
       new subcontractor or utilize Pat Engineering (the current principal
       subcontractor) as the completion contractor; the surety will invoice for work
       completed by new subcontractor or Pat and will distribute payments. I
       anticipate that the project can be completed within remaining contract funds
       with a minimal shift to the right in schedule. There will be no need to engage
       in re-procurement activities. The contractor has failed to provide under
       clause 52.249-10 (1) any of the unforeseen causes beyond his control and
       without the fault or negligence. This termination decision is in conformance
       with this factor.

       DETERMINATION
       I have evaluated the above issues and have determined that a Notice to
       Terminate for Default of contract W912ER-12-C-0046 was considered and
       determined to be in the best interest of the government.

Id.

        On November 18, 2013, the contracting officer notified plaintiff by letter that its
contract was being terminated for default. See ECF No. 59-1 at 68-69. The termination
letter reads, in its entirety, as follows:

              State Corps is hereby found in default under contract W912ER-12-C-
       0046 awarded on August 20, 201[2]. Effective immediately, your right to
       further perform under this contract is hereby terminated.

              State Corps’ response to the Government’s Show Cause and Cure
       Notice did not provide any information that demonstrated it could complete
       the project within a reasonable time. State Corps did not show that the
       default otherwise was beyond its control and without its fault or negligence.
       The following are the acts or omissions constituting the default:

              1.     State Corps failed to make progress. The contract was awarded
                     on August 20, 2012, and notice to proceed (NTP) was issued
                     on September 27, 2012. State Corps is thirteen months into the
                     project and has completed only 80 percent of the contract
                     requirement. The period of performance was 300 calendar
                     days from NTP which would have been a completion date of
                     July 24, 2013. Despite the Government’s repeated attempt to
                     help State Corps, it maintained approximately a 30 percent
                     rejection status on submittals. State Corps continual
                     delinquency of proper submittals has resulted in project delays.


                                             11
              2.     State Corps has falsified documents in its response to the
                     Government’s Show Cause letter. This falsification further
                     solidifies the Government’s lack of confidence in State Corps’
                     integrity in contracting or honesty in keeping promises made.

               Based on State Corps’ inability to provide timely submittals,
       falsification of documents, and completing only 80 percent of the contract
       requirement, I do not believe State Corps can provide or follow a reasonable
       schedule for completion.

              I have determined that the failure to perform is not excusable and this
       notice of termination constitutes such decision. State Corps has the right to
       appeal this decision under the Disputes clause.

              The Government reserves the right to charge any re-procurement costs
       associated with any new contract. The Government reserves all rights and
       remedies provided by law or under the contract, in addition to charging
       excess costs. State Corps will be notified at a later date as to the amount of
       such excess costs, if any.

              This notice constitutes my decision that State Corps is in default as
       specified, and is therefore, terminated for default, and that State Corps has
       the right to appeal my decision under the Disputes clause.

Id.

        On July 6, 2014, plaintiff submitted a claim and request for contracting officer’s
final decision challenging the default termination. See ECF No. 64-2 at 73-84. Therein,
plaintiff claimed that its “termination was improper, arbitrary, capricious, without factual
support and/or contrary to law. As such, [plaintiff] asks that USACE convert the
Termination for Default (T4D) to a Termination for Convenience (T4C). Additionally,
[plaintiff] seeks compensation from USACE in an amount no less than $1,497,466.80.”
Id. at 73.

        According to plaintiff, it was entitled to an extension of the contract completion
date of 180 days, to and including December 22, 2013. See id. 79. It explains this claim
as follows:

       SC’s start on the project was delayed due to an inability to obtain not only
       Visas and operating licenses, but also badges for SC’s personnel to access
       the installation. SC timely began processing the requisite paperwork for such
       access as evidenced via the details provided above. . . . USACE was aware
       the base access approval process takes 30 days. With that knowledge, SC is

                                             12
       entitled at a minimum to an extension of the Period of Performance of 30
       days. By the facts as displayed here, the actual period of delay, even with
       SC’s diligent efforts and requests for Government assistance, was 60 days.

       Combining these two matters, SC’s ability to perform under the contract was
       delayed due to no fault or negligence on the part of SC. SC was delayed in
       commencing work by 42-days due to the Qatar Visa and licensing agency
       issues at the outset, experienced additional Visa issues throughout the project
       totaling at least another 18 days (total of 60), and throughout the project
       experienced no less than 60 additional days of delay regarding Visa
       approvals and 60 additional days of delay due to base access issues.

       ...

       It should also be noted that this badging issue was identified to all parties in
       the technical specifications of the project. At 1.53.4.1, the Government
       advised that personnel from Afghanistan were not permitted on the base at
       any time. While SC was aware of this restriction, the Government was
       equally aware when they awarded the contract that they had awarded it to a
       contractor primarily consisting of Afghan employees. As one of the primary
       complaints against State Corps is the alleged lack of timely performance
       and/or the failure to properly manage the project, the Government surely had
       to understand that such impacts should have been expected when awarding
       the contract to an Afghan company. While SC did indeed do its best to
       minimize such impacts by hiring American employees and a subcontractor
       comprised of nearly entirely (90%) Indian workers, managers and technical
       staff, even those solutions lead to unnecessary delays due to base access as
       explained in this submission—all of which was due to no fault or negligence
       on the part of SC.

       Therefore SC was entitled to an extension of the Period of Performance of
       no less than 180 days, thus serving to negate, at least in part, any default per
       52.249-10. An extension of 180 days would have set the CCD at December
       22, 2013. On the date of termination, November 18, 201[3], when the project
       was over 80% and closer to 85% complete, worst case scenario a delay in
       performance, if any, was negligible at best[].

Id. at 78-79. Plaintiff also blames the USACE for its lack of progress on the project:

       [The USACE’s] hindrance manifested itself when the Government failed to
       properly pay SC for its progress on the project (exacerbating issues with its
       subcontractor, PAT - see below), in the Government refusing to grant SC
       access to the installation once it had to step in to take over the project from

                                             13
       PAT, in the Government’s failure to provide any feedback as to the
       unsuitability of any corrective action plans submitted by SC, and in the
       Government failing to support SC’s hiring of a replacement subcontractor.

Id. at 80.

II.    Legal Standards

       A.     Motions for Summary Judgment

        According to the Rules of the United States Court of Federal Claims (RCFC),
summary judgment is appropriate “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” RCFC
56(a). “[A]ll evidence must be viewed in the light most favorable to the nonmoving
party, and all reasonable factual inferences should be drawn in favor of the nonmoving
party.” Dairyland Power Coop. v. United States, 16 F.3d 1197, 1202 (Fed. Cir. 1994)
(citations omitted).

        A genuine dispute of material fact is one that could “affect the outcome” of the
litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The moving
party . . . need not produce evidence showing the absence of a genuine issue of material
fact but rather may discharge its burden by showing the court that there is an absence of
evidence to support the nonmoving party’s case.” Dairyland Power, 16 F.3d at 1202
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). A summary judgment
motion is properly granted against a party who fails to make a showing sufficient to
establish the existence of an essential element to that party’s case and for which that party
bears the burden of proof at trial. Celotex, 477 U.S. at 324.

         The Supreme Court of the United States has instructed that “the mere existence of
some alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be no genuine
issue of material fact.” Anderson, 477 U.S. at 247-48. A nonmovant will not defeat a
motion for summary judgment “unless there is sufficient evidence favoring the
nonmoving party for [the fact-finder] to return a verdict for that party.” Id. at 249
(citation omitted). “A nonmoving party’s failure of proof concerning the existence of an
element essential to its case on which the nonmoving party will bear the burden of proof
at trial necessarily renders all other facts immaterial and entitles the moving party to
summary judgment as a matter of law.” Dairyland Power, 16 F.3d at 1202 (citing
Celotex, 477 U.S. at 323).




                                             14
       B.     Termination for Default

        Under the Contract Disputes Act, the court reviews a contracting officer’s decision
de novo. See 41 U.S.C. § 7104(b)(4) (2012). When a default termination is challenged
in this court, the government bears the burden of justifying the termination. E.g., Lisbon
Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987). Once default has
been established, plaintiff bears the burden of establishing that the default was excused
by fault of the government. See, e.g., Keeter Trading Co. v. United States, 79 Fed. Cl.
243, 253 (2007) (“If the government succeeds in proving default, the plaintiff then must
demonstrate ‘that the default was excusable under the terms of the contract.’”) (quoting
Airport Indus. Park, Inc. v. United States, 59 Fed. Cl. 332, 338 (2004)); see also Kennedy
v. United States, 164 Ct. Cl. 507, 512 (1964) (“If we hold that [the contractor] defaulted,
we must determine whether the default was or was not excusable.”). The wrongful
termination for default claim only implicates the contractor’s right to obtain termination
for convenience costs. See Malone v. United States, 849 F.2d 1441, 1445 (Fed. Cir.) (“If
the default was improper, the government is liable for the contractor’s termination for
convenience costs.”) (citation omitted), modified on other grounds, 857 F.2d 787 (Fed.
Cir. 1988).

III.   Analysis

       A.     Plaintiff Was in Default on July 25, 2013

      According to defendant, plaintiff was in default under the contract when it failed
to complete the project by July 24, 2013. See ECF No. 67 at 11. The contract provided
that:

       [T]he Contractor shall be required to (a) commence work under this contract
       within 15 calendar days after the dates the Contractor receives the notice to
       proceed, (b) prosecute the work diligently, and (c) complete the entire work
       ready for use not later than 300 calendar days.

ECF No. 64 at 3. The USACE issued its notice to proceed on September 27, 2012, which
resulted in a required completion date of July 24, 2013. See id. Plaintiff admits that the
contract work was not completed by that date. See ECF No. 70 at 7 (“It is undisputed
that State Corps did not complete the project by July 24, 2013, the established Contract
completion date.”).

       Defendant argues that plaintiff’s failure to complete the project by July 24, 2013,
was alone sufficient to place plaintiff in default under the contract. See ECF No. 67 at
15. The default clause in the contract reads, in part, as follows:



                                            15
       If the Contractor refuses or fails to prosecute the work for any separable part,
       with the diligence that will insure its completion within the time specified in
       this contract including any extension, or fails to complete the work within
       this time, the Government may, by written notice to the Contractor, terminate
       the right to proceed with the work . . . that has been delayed.

ECF No. 64-1 at 37 (emphasis added).

        As the United States Court of Claims has held, “[t]ime is of the essence in any
contract containing fixed dates for performance,” and failure to meet that fixed date can
therefore form a valid basis for default termination. DeVito v. United States, 413 F.2d
1147, 1154 (Ct. Cl. 1969). See also Empire Energy Mgmt. Sys., Inc. v. Roche, 362 F.3d
1343, 1354 (Fed. Cir. 2004) (holding that when time is of the essence in a government
contract, the agency can terminate the contract for default when the contractor fails to
meet the contract performance date). Here, not only does plaintiff admit that it failed to
meet the contract completion date, plaintiff’s delinquent performance was clearly
identified as part of the contracting officer’s termination decision. See ECF No. 59-1 at
68 (stating that as of November 18, 2013, plaintiff had “completed only 80 percent of the
contract requirement,” and that the contract had “a completion date of July 24, 2013”).

        The court agrees with defendant that the undisputed material facts demonstrate
that plaintiff was properly considered in default the day after it failed to meet the contract
performance date—July 25, 2013. 1

       B.     Defendant Did Not Waive Plaintiff’s Default

       When a contractor defaults on a contract, that default may be waived by the
contracting agency—expressly or through inaction. The Court of Claims outlined the
circumstances under which the agency’s inaction will result in a waiver as follows:

       The necessary elements of an election by the non-defaulting party to waive
       default in delivery under a contract are (1) failure to terminate within a
       reasonable time after the default under circumstances indicating forbearance,
       and (2) reliance by the contractor on the failure to terminate and continued
       performance by him under the contract, with the Government’s knowledge
       and implied or express consent.


1
       Defendant alleges that plaintiff breached the contract in a number of additional,
material ways that would independently justify termination for default. See ECF No. 67
at 19-25. Because the court has concluded that plaintiff’s failure to complete the contract
by July 24, 2013, serves as a valid basis for the default termination, it does not reach the
merits of these assertions.
                                             16
DeVito, 413 F.2d at 1154. The contractor bears the burden of proving the facts to
support a finding that defendant waived the default. See Indem. Ins. Co. of N. Am. v.
United States, 14 Cl. Ct. 219, 223 (1988). That burden is heavier “[w]here the right to
terminate has been expressly reserved or when liquidated damages have been imposed by
the non-breaching party.” Olson Plumbing & Heating Co. v. United States, 602 F.2d
950, 955 (Ct. Cl. 1979). The issue of waiver applies to construction contracts only in
“exceptional or rare circumstances.” Indemnity, 14 Cl. Ct.. at 224. In the context of
considering the issue of waiver, however, “whether a default termination is proper
depends upon the facts and circumstances of each case.” Id. at 223 (citing Olson, 602
F.2d at 955).

        In this case, the issue of waiver was first raised by defendant in its response and
cross-motion for summary judgment. See ECF No. 67 at 16. Therein, defendant
contends that because plaintiff did not argue that defendant waived plaintiff’s default in
its opening brief, plaintiff has effectively waived its ability to make such an argument.
Id. (citing In re Gabapentin Patent Litig., 503 F.3d 1254, 1261 (Fed Cir. 2007)). The case
cited by defendant in support of its assertion does not assist the court on this point
because Gabapentin involved an express waiver of a particular argument. See
Gabapentin, 503 F.3d at 1261. To the court’s knowledge, plaintiff has made no express
statement disavowing an argument that defendant has waived its default.

       In its response to defendant’s cross-motion, plaintiff quotes several authorities
discussing the concept of waiver, but does not explicitly argue that the facts of this case
involve a waiver on the USACE’s part. Instead, plaintiff speaks in terms of election,
arguing that “the Government elected to allow the Contract work to continue after the
date of State Corps’ alleged default.” ECF No. 70 at 7. Plaintiff continues:

       To be clear, State Corps does not dispute that the Government reserved its
       right to terminate the Contract on the basis of the elapsed Contract
       completion date. However, the Government did not take action to terminate
       or suspend the Contract at that time, but elected to allow the Contract work
       to proceed.

Id. at 7-8. According to plaintiff, the result of such an election is that defendant is
obligated to “pay for work performed by State Corps subsequent to the alleged breach.”
Id. at 8 (citing 13 Williston on Contracts § 39:23 (4th ed. 2000)).

       Contrary to plaintiff’s implicit assumption, however, an election to allow work to
continue does not automatically equate to a waiver. In Indemnity Insurance Co. v.
United States, the court considered facts that it succinctly summarized as follows:

       Plaintiff has filed a motion for summary judgment requesting that [its]
       termination for default by the government of its construction agreement be

                                             17
       converted to a termination for the government’s convenience. The plaintiff
       bases its motion on the following facts. The original completion date passed
       without government termination of the contract and plaintiff continued to
       perform work which the government had knowledge of and encouraged. The
       government did not establish a new completion date prior to the default
       termination.

14 Cl. Ct. at 220. In that case, the government agreed to a period of forbearance so that
plaintiff could attempt to resolve deficiencies in its performance, but notified plaintiff
that “acceptance of any work [during the period of forbearance] would be for the purpose
of mitigating damages and that liquidated damages would continue to accrue.” Id. at 221.

        In reaching its decision, the court in Indemnity observed that “a contracting officer
should not have to immediately terminate a contract, after a contractor’s failure to meet a
delivery date, on pain of waiving the right to do so.” Id. at 226 (citation omitted). The
court concluded that “the fact that the contracting officer did not immediately, after the
plaintiff’s failure to meet the . . . completion date, act to terminate the contract for default
does not mean the government waived its right to do so, especially since the plaintiff was
advised that the government was preserving all of its rights and was considering
termination if certain conditions were not met.” Id.

       The Court of Claims reached a similar conclusion in Olson. In Olson, the court
reviewed a decision of the Armed Services Board of Contract Appeals, in which the
board determined that the government had not waived its right to terminate a contract.
When the plaintiff in Olson failed to meet the contract completion date, the government
did not terminate the contract for default, but it “sent plaintiff two letters stating that it
was not waiving its rights by permitting plaintiff to continue performance and that
liquidated damages would be assessed . . . until the date of completion.” 602 F.2d at 953.
More than a year later, after plaintiff was repeatedly unable to complete its work, the
government terminated the contract for default. See id. at 954. The board upheld the
termination for default, holding that the government was “within its rights when it
terminated plaintiff for default because plaintiff had abandoned the contract and the
Government had not waived the due date.” Id.

        Relying on an election theory, the plaintiff argued to the court that the board erred
because the government “lost its right to terminate the contract for default until a new
delivery date had been set because it permitted 13 months to pass after the due date and
before it terminated the contract, encouraged plaintiff to continue to perform, and did not
set a new delivery date.” Id. at 955. The court found that defendant’s termination
decision was proper, and that plaintiff had failed to carry its burden to demonstrate
waiver. In reaching this conclusion the court noted that the government’s “express
reservation of its rights and the assessment of liquidated damages surely made clear to
plaintiff that the Government was not excusing the breach.” Id.

                                              18
        As noted above, in order to show that the USACE waived its default, plaintiff
must show both that: (1) defendant “failed to terminate within a reasonable time after the
default under circumstances indicating forbearance,” and (2) plaintiff’s reliance “on the
failure to terminate and continued performance by [it] under the contract, with the
Government’s knowledge and implied or expressed consent.” DeVito, 413 F.2d at 1154.
Plaintiff does not explicitly address either of these factors in the briefs it filed in this case.
But whatever argument it might make to support the various aspects of this waiver test, it
cannot plausibly argue that it relied on the USACE’s failure to terminate in deciding to
continue performance.

       The undisputed material facts show that the USACE repeatedly and expressly
reserved its right to both terminate the contract for default and to impose liquidated
damages. After plaintiff’s failure to meet the July 24, 2013 contract completion date,
defendant made its position clear to plaintiff on at least the following seven occasions:

              (1)     On July 28, 2013, four days after plaintiff failed to timely complete
       the work, the contracting officer wrote to plaintiff, stating that “[s]ince State Corps
       has failed to perform within the time required by the terms of the contract, the
       Government is considering terminating said contract,” and that the letter is
       intended as formal notice to plaintiff that the USACE intended to pursue the
       recovery of liquidated damages. ECF No. 64-1 at 286.

               (2)    On July 30, 2013, the contracting officer sent another letter repeating
       her statements that the project was overdue, that defendant intended to assess
       liquidated damages, and that defendant may terminate the contract for default. See
       id. at 287-90. That letter stated that “[t]he Government reserves all right under the
       contract, including the right to terminate for default if the late performance is
       unexcused.” Id. at 290.

               (3)    On August 20, 2013, after receiving a proposed recovery plan from
       plaintiff, the USACE rejected the proposal as unrealistic, and stated: “[a]lthough a
       modest time extension is under consideration by the Contracting Officer, you will
       likely continue to be in default and subject to liquidated damages,” and that
       “Termination for Default is also being discussed with the possibility that your
       performance bond will be called.” Id. at 295.

               (4)     On September 23, 2013, the contracting officer issued a show cause
       letter to plaintiff, which included the subject line “Show Cause Letter—
       Timeliness,” stating that “[s]ince you have failed to perform within the time
       required by the terms of the Contract, the Government is considering terminating
       said contract pursuant to the Clause titled “Default” of the contract clauses.” ECF
       No. 64-2 at 11. The letter also stated:


                                               19
       Pending a final decision in this matter, it will be necessary to
       determine whether your failure to perform arose out of causes beyond
       your control and without fault or negligence on your part.
       Accordingly, you are hereby afforded the opportunity to present, in
       writing, any facts bearing on the question to this office, within ten (10)
       days after receipt of this notice. Your failure to present any mitigating
       circumstances with ten (10) days after receipt of this notice may be
       considered as an admission that none exist. Your attention is invited
       to the respective rights of the contractor and the Government under
       the contract clause titled “Default” and the liabilities that may be
       invoked in the event a decision is made to terminate for default.

       Any assistance rendered to you on this contract or acceptance by the
       Government of delinquent goods or services thereunder, will be solely
       for the purpose of mitigating damages, and is not to be construed as a
       waiver of any rights the Government may have under subject contract.

Id. at 12-13.

        (5)    On September 24, 2013, the contracting officer sent another letter to
plaintiff noting plaintiff’s deficient performance, stating that the USACE was
considering default termination, and again stating that:

       Any assistance given to you on this contract or acceptance by         the
       Government of delinquent goods or services will be solely for         the
       purpose of mitigating damages, and it is not the intention of         the
       Government to condone any delinquency or to waive any rights          the
       Government has under the contract.

Id. at 15.

        (6)     Also on September 24, 2013, the contracting officer notified plaintiff
of the USACE’s “intention to begin assessing liquidated damages . . . at the rate of
$4,694.00 per day for each calendar day following the contract completion date
until the work is completed.” Id. at 30. She also again repeated that the
“Government reserves all rights under the contract, including the right to terminate
for default if the late performance is unexcused.” Id.

        (7)     On October 23, 2013, the surety expressed its willingness to
negotiate an agreement by which it would take over responsibilities under the
contract in order to mitigate its damages. See id. at 50-51. The USACE proposed
to plaintiff that if plaintiff cooperated in the surety’s takeover efforts, the USACE


                                      20
       would not terminate plaintiff for default. See id. at 130 (plaintiff admitting this
       fact in response to defendant’s request for admission).

As was the case for the plaintiffs in Indemnity and Olson, it is simply inconceivable that
plaintiff could believe, after receiving the foregoing communications from the agency,
that defendant’s stated intentions are consistent with a finding of waiver. Indeed it is
difficult for the court to imagine how the agency could have made its position—that it
considered plaintiff to be in default, to be in danger of having its contract terminated for
default, and to be responsible for liquidated damages—any clearer.

        As such, the undisputed material facts confirm that defendant did not waive
plaintiff’s default under the contract.

       C.     Plaintiff’s Default Was Not Excused

        Defendant has met its burden to demonstrate plaintiff’s default, and plaintiff has
failed to demonstrate that defendant waived that default. Thus, in order to avoid the
consequences of its default—here termination of the contract—plaintiff must establish
that its default was excusable. See, e.g., Keeter Trading, 79 Fed. Cl. at 253 (“If the
government succeeds in proving default, the plaintiff then must demonstrate ‘that the
default was excusable under the terms of the contract.’”) (quoting Airport Indus. Park,
Inc. v. United States, 59 Fed. Cl. 332, 338 (2004)); see also Kennedy, 164 Ct. Cl. at 512
(“If we hold that [the contractor] defaulted, we must determine whether the default was
or was not excusable.”).

        Plaintiff argues that its default should be excused for either of two reasons. First,
plaintiff argues that the “contracting officer materially breached the contract by failing to
pay significant amounts over an extended period of time in violation of the payment
procedures in the contract.” ECF No. 58 at 6. As a result, plaintiff claims, it “did not
have the cash flow to fund performance of the Contract work.” Id. at 11. Plaintiff states
that “[t]he Government’s breach of its payment obligations was the sole cause of State
Corps’ inability to proceed with the work at the time of the termination for default,” and
therefore, “the termination for default must be excused and converted to a termination for
convenience.” Id.

       And second, plaintiff claims that the contracting officer “failed to consider, in
[her] Final Decision, or at any time, prior to the termination for default, State Corps’
outstanding request for an excusable delay related to a change in the badging process that
prevented State Corps’ employees from gaining access to the site for performance of
work.” Id. at 13. Plaintiff alleges that changes to the badging process were made on
August 7, 2013, and states that it notified the USACE of delays related to that change on
three separate occasions in September 2013. See id. The failure to consider these delays


                                             21
prior to termination, according to plaintiff, “legally constitutes an abuse of discretion and
arbitrary and capricious behavior, which makes the termination for default invalid.” Id.

       Both of these arguments fail for the same reason. Defendant admits that it did not
pay the seventh invoice submitted by plaintiff in due course, and expressly took
responsibility for any resulting interest and penalties. See ECF No. 59-1 at 59-60. The
seventh invoice, however, was not submitted until September 8, 2013, and reflected a due
date of September 22, 2013. 2 See ECF No. 59-1 at 51-58. Even assuming, as plaintiff
has alleged, that defendant’s delinquent payment resulted in plaintiff’s inability to fund
its work, see ECF No. 58 at 11, it could not possibly have caused its failure to meet the
contract completion date, which passed two months before plaintiff expected the seventh
payment from defendant.

       Plaintiff’s excuse related to delays due to changes in the badging process after
August 7, 2013, is equally unavailing. According to plaintiff’s own version of events, the
changes at issue were not instituted until two weeks after the contract completion date.
Thus, even if these alleged delays were legitimate, they simply cannot operate as a legal
excuse for plaintiff’s failure to complete the contract work by July 24, 2013. 3

        In its response to defendant’s cross-motion, plaintiff makes an oblique reference to
“excusable delays which prevented it from completing the project by the established
Contract completion date.” ECF No. 70 at 25. Plaintiff includes no substantive
discussion of these alleged excusable delays, but instead presents the existence of such
allegations as evidence of disputed material facts. See id. The record cites included in
this section of plaintiff’s brief refer to the delays caused by the August 7, 2013 changes in
the badging process, see ECF No. 59 at 5, which the court has previously discussed, and


2
     Defendant claims payment would have been due on September 23, 2013. See
ECF No. 67 at 35 n.7.
3
        Plaintiff bases part of its argument in its motion for summary judgment on the
contention that the contracting officer acted arbitrarily and capriciously because she did
not address the delays related to the August 7, 2013 badging procedures in deciding to
terminate the contract for default. See ECF No. 58 at 11-13. According to plaintiff,
“[t]his failure legally constitutes an abuse of discretion and arbitrary and capricious
behavior, which makes the termination for default invalid.” Id. at 13. Defendant takes
issue with the legal standard plaintiff urges the court to apply in this regard. See ECF
No. 67 at 45-48. The court need not resolve the parties’ disagreement as to the legal
standard or its application to the present case. As discussed more fully in the text
accompanying this footnote, the conduct challenged by plaintiff, even crediting its
version of events, is not material to the present analysis because it occurred after plaintiff
failed to meet the contract completion date.
                                              22
to several proposed findings of uncontroverted facts discussing plaintiff’s June 13, 2013
letter to the contracting officer, see ECF No. 64 at 18; ECF No. 70 at 25.

      In the June 13, 2013 letter, plaintiff provided the contracting officer with
explanations of various delays in performance, but also states as follows:

       First of all, I would like to apologize on behalf of State Corps that it came
       down to us being issued a cure notice. This is our first Governmental contract
       in Qatar and we have always tried for successful completion of this project.
       This is no excuse for being behind on the schedule but unfortunately we had
       experienced some challenges at the start of the project which included getting
       the company registered in Qatar and developing our team there.

       ...

       I have personally spoken with the project manager, John Hanen, and he is
       fully accepted the responsibility of the project being behind.

ECF No. 64-1 at 213-14. Plaintiff’s recovery plan, which was attached to the letter,
acknowledged that the “project is 3 week[s] behind schedule,” but stated that “this
recovery plan has been made in order for us to prove to our client that the project
completion on 24th of July is undeniably possible.” Id. at 216.

        Plaintiff suggests that there is an issue of disputed material fact with regard to
whether the delays outlined in the June 13, 2013 letter could form the basis of a valid
legal excuse for its late performance. See ECF No. 70 at 25. While delays that occurred
prior to June 13, 2013, certainly avoid the timing issue that plaintiff has with the excuses
that form the primary basis of its argument, plaintiff has given the court no reason to
doubt plaintiff’s own statements—which appear in the very same letter—that there was
“no excuse” for these delays, and that plaintiff’s own project manager “fully accepted the
responsibility for the project being behind.” Id. at 213-14.

      For these reasons, the court finds that the undisputed material facts support the
conclusion that plaintiff’s late performance was not excused.

IV.    Conclusion

        The undisputed material facts show that plaintiff was in default as of July 25,
2013, that defendant did not waive the default, and that the default was unexcused. As
such, defendant’s decision to terminate the contract for default was proper, and defendant
is entitled to summary judgment in its favor.



                                             23
    Accordingly, plaintiff’s revised motion for summary judgment, ECF No. 58, is
DENIED; and defendant’s cross-motion for summary judgment, ECF No. 67, is
GRANTED.

        The court’s conclusion that defendant properly terminated the contract for default
may not end the inquiry in this case, however, as it does not speak to whether defendant
owes plaintiff any additional payments. Throughout their summary judgment briefs, the
parties offer varying versions of the outstanding balance defendant may owe to plaintiff.
Those assertions, however, were made in the context of whether defendant’s decision to
withhold certain payments was a material breach of its obligations under the contract
such that plaintiff’s termination for default should be excused, and neither party has
asked the court to make a final calculation of damages on summary judgment. See ECF
No. 58 at 10 (arguing that “the nonpayment by the Government of the $1.22 million
provides a clear basis to overturn the Government’s termination of State Corps based on a
material breach of the Contract’s payment provisions” and that the alleged breach
“entitles State Corps to a conversion of the default to a termination to convenience”);
ECF No. 67 at 26-44 (arguing the defendant’s nonpayment of progress payments was
either justified or not a material breach, and contesting the amount plaintiff claims is
presently owed); ECF No. 70 at 15-17 (identifying various disagreements between the
parties as to the amounts owed on the contract, while arguing that defendant’s
“withholding of a large amount of money over several months in contravention of the
express terms of the Contract was a material breach”); ECF No. 75 at 16-17 (defendant
noting that it has “not contended that a contractor could have no entitlement to a withheld
progress payment—rather, the only issue currently before the Court is whether the
nonpayment was a material breach, at the time of the defaults, as required to convert the
default termination to a termination for convenience”).

        The court also notes that defendant claims, without explication, that “whether
[plaintiff] is now entitled to any amounts that it claims it is due . . . and whether
liquidated damages and retainage fully offset these amounts . . . would only be relevant to
Case No. 16-1074.” Id. at 17. By this statement, defendant seems to suggest that no
determination of damages should be made in this case.

        The court, therefore, directs the parties to CONFER and FILE a joint status
report, on or before March 15, 2019, informing the court of the issues left to be resolved
in this case, and proposing a plan for doing so. 4 In particular, the court expects the
parties to address the impact of the court’s findings in this opinion on State Corps v.
United States, Case No. 16-1074, with which the present matter has been informally


4
       If the parties determine that additional issues are outstanding, they are encouraged
to consider whether settlement discussions would be fruitful now that the court has
determined that the default termination was proper.
                                            24
consolidated. See Case No. 16-1074, ECF No. 25 (amended scheduling order providing
guidance on the informal consolidation).

      IT IS SO ORDERED.



                                             s/Patricia E. Campbell-Smith
                                             PATRICIA E. CAMPBELL-SMITH
                                             Judge




                                        25
