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The contractor asserted an affirmative defense to a default termination. The board argued the contractor had not submitted the defense to the agency, so the board should dismiss the appeal. The board rejected the government’s argument. Termination is a government claim. The government bears the burden of proof regardless of whether the contractor has perfected an affirmative defense.
Appeal of Heffler Contracting Group, ASBCA No. 63565
- Appeal – The contractor appealed a termination for default. As part of the appeal, the contractor asserted an affirmative defense of excusable delay.
- Motion to Dismiss – The government moved to dismiss the appeal. The government argued the contractor had not submitted a time extension for the alleged excusable delay. Thus, the government argued, the contractor had not perfected its appeal. The board lacked jurisdiction.
- Board Denies Motion – The board found the government’s motion was fundamentally flawed. The government sought dismissal of the entire appeal. While a contractor had to initiate an appeal, termination is a government claim. Thus, the burden of proof is on the government regardless of whether the contractor has perfected an affirmative defense. The board may dismiss the excusable delay defense, but it would not dismiss the entire appeal.
The contractor is represented by Kelly A. Floyd of Finch, Thornton & Baird, LLP. The government is represented by Craig D. Jensen and Katherine E. Arutunian of the Navy.
–Case summary by Craig LaChance, Senior Editor
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