Abandon Ship! Leaving the Job Site Dooms Contractor’s Default Termination Appeal

A contractor that walked off the job site before termination could not overcome the government’s proof of valid default, but factual disputes over government-caused delays and COVID-19 impacts prevented full summary judgment. The Board ruled that abandoning the worksite constituted material breach justifying termination, but whether delays were excusable remained a question for hearing.

Appeals of J.A.M. Construction Services, Inc., ASBCA Nos. 63378, 64226, 64439

• Background – The Navy awarded J.A.M. Construction Services a $2.1 million task order to construct an elevator lobby addition. The contract required completion in 275 calendar days. J.A.M. struggled with submittal requirements and fell severely behind schedule. In February 2022, J.A.M. instructed its subcontractors to demobilize and left the site. The Navy terminated the contract for default in May 2022, citing abandonment and other grounds. The Navy later assessed $1.4 million in liquidated damages. J.A.M. appealed, arguing government-caused delays, COVID-19 impacts, and harsh submittal review excused its performance failures.
• Valid Default Termination – The Board granted partial summary judgment to the government on the validity of the default termination. Undisputed evidence showed J.A.M. abandoned the project in February 2022—two months before termination. J.A.M.’s superintendent emailed a subcontractor that work was on “indefinite hold” and directed equipment removal. The company president admitted at deposition that J.A.M. had no workers at the site and could not find replacements willing to go there. The Board found this abandonment constituted material breach justifying default termination under both the contract’s Default clause and common law principles.
• Excusable Delay Defense Survives – The Board denied the government’s summary judgment motion on J.A.M.’s affirmative defense that delays were excusable. While the government proved valid grounds for termination, J.A.M. could still show its abandonment was justified by government-caused delays or other excusable factors. The government relied on its delay expert’s opinion attributing 643 days of delay to J.A.M. and only 15 days to the government. The Board rejected the notion that unopposed expert testimony automatically establishes facts as undisputed. Moreover, material factual disputes remained as to whether the pandemic impacted its performance throughout the contract period.

The contractor is represented by David Charitat of Widerman Malek, PL. The government is represented by Billy B. Ruhling, II and Elizabeth C. Tosh, Trial Attorneys, Navy.

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