Court’s Prior Invalidation of Agency’s Termination for Default Not Enough to Save Contractor from Liquidated Damages; COFC No. 05-914C, K-Con Building Systems, Inc. v. The United States

Plaintiff’s motion to alter the agency’s termination for default to a termination for convenience and to avoid liquidated damages for failure to perform on the contract is denied, where the contractor failed to provide any valid affirmative defenses that would preclude liquidated damages, where some allegations of excusable delays in performance were not previously raised to the contracting officer and therefore the court lacked jurisdiction to consider them, and where the challenge to the termination for default was untimely, even though the court previously invalidated the termination because the agency initially failed to comply with the default clause in the contractor’s underlying Federal Supply Schedule contract.