Payne Hackenbracht & Sullivan

Example of Case Where GSBCA Held That Termination for Default was Improper

Where the evidence establishes that an Appellant could have indeed completed performance by the extended date, then a termination for default for failure to complete is not proper. See Preston-Brady Co., VABCA No. 1849, 86-2 BCA 18,860; see also Hewitt Contracting Co., ENG BCA Nos. 3790 et al., 79-2 BCA 14,016, where the Board noted that the termination for default did not rest on a sound basis, because the CO acted on the postulate that the contractor was in default of a schedule to complete, when the time given the contractor for excusable delays was inadequate to cover the time actually due. More recently, in D. W. Sandau Dredging, ENG BCA No. 5812, 96-1 BCA 28,064, the Board overturned a default, determining that the CO had incorrectly failed to recognize additional time due a contractor as a result of a differing site condition. There the Board noted that the completion date that had to be used in analyzing whether there was a reasonable likelihood of the contractor completing performance in a timely manner was the original completion date plus the appropriate extension of time.