Board Chucks Motion for Reconsideration Like It’s that Chicken Parm You Left in the Fridge Six Weeks Ago; Powertronic Systems Florida, Inc., ASBCA No. 62174

Contractor’s motion for reconsideration is denied. The board denied an appeal of a termination for cause. The contractor moved the board to reconsider. The board rejected the motion, finding that the contractor simply listed a bunch of excuses for non-performance, which had already been rejected in the underlying appeal.

Background

Powertronic Systems Florida had a contract with the Navy. The Navy terminated the contract for cause. Powertronic appealed to the ASBCA. The board denied the appeal. Powertronic moved for reconsideration.

Legal Analysis

• Termination for Default Is Not a Negotiated Settlement — Powertronic argued the board had erred in failing to address whether the government should have executed a no-cost settlement under FAR 49.109-4. The board found it had not erred in failing to address this argument. A no-cost settlement under FAR 49.109-4 applies to a negotiated settlement between the parties, not a termination for default
• Agency Not Obligated to Tolerate Contractor’s Chronic Failures — Powertronic argued that while it fell behind schedule, that was not sufficient to justify the termination. The board disagreed, reasoning that Powertronic had a list of excuses for its failure to timely perform. The Navy had rightly said enough is enough and was not required to put up with Powertronic’s chronic failures.
• Termination Was Not an Abuse of Discretion  — Powertronic alleged the Navy abused its discretion by failing to consider supply shortage and subcontractor issues before terminating for default. The board rejected this argument, reasoning that when you have a contract with the government, you have to perform, not just list excuses as to why your non-performance is not your fault.

Powertronic is represented by David L. Hayden and Jackson W. Moore of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan. The government is represented by Craig D. Jensen and Trenton Bowen of the Navy.

[pdf-embedder url=”https://staging.pub-k.org/wp-content/uploads/2021/11/ASBCA-Powertronic-Systems-Florida.pdf” title=”ASBCA – Powertronic Systems Florida”]