Contract performance

The government also argued that Divecon abandoned performance. (1421) Apparently, the government believed that Divecon's refusal to accept financial liability for losses due to bad weather constituted abandonment. The board noted the absurdity of this position. The contract was silent on this issue. The government could not threaten a contractor to accept a change without consideration, that could have a significant negative financial impact on the contractor. "Permitting the government to terminate a contract on this ground would generally be a 'license for abuse of contractors.'" (1422)

Labor Conspiracy, Akin to a Strike, is a Valid Defense to T4D

On 20 November 2001, the Army awarded NTC Group Inc. (NTC) three contracts to operate oil analysis laboratories at Fort Bragg, North Carolina; Fort Drum, New York; and, Hunter Army Airfield (AAF), Georgia. (1423) NTC was not the incumbent contractor at any of these locations. The contracts each required two "Class A Logistic Support Activity (LOGSA) certified Technician/Evaluators." (1424) The contracts also contained additional training, skills and experience requirements. The ASBCA found there was a limited pool of Army Oil Analysis Program (AOAP) certified employees and that to fulfill the contracts' needs, NTC would have had to "either hire the incumbents or lure certified evaluators from other AOAP laboratories." (1425) The contract required evidence of successful staffing ten days after the government determined the lowest responsive, responsible bidder. (1426)

The manager of the Fort Bragg laboratory, in essence, successfully persuaded the Fort Drum and Hunter AAF managers to refuse employment with NTC. (1427) The managers, in turn, persuaded most of the other current employees to refuse to join NTC. These actions were taken with the explicit intent to thwart NTC's successful performance. (1428) In addition, LOGSA refused to provide NTC with a list of names of currently certified evaluators. (1429)

NTC could not obtain a sufficient number of certified evaluators at any of the three locations. The respective contracting officers terminated each contract for cause. (1430) The board found that failure to provide an adequate number of qualified personnel was a valid ground for terminating the contracts. (1431) The board also found, however, that the particular labor situation NTC faced was beyond NTC's reasonable control and did not result from NTC's fault or negligence. (1432) The board found that a labor situation will only excuse performance "in the most unusual circumstances" or "where abnormal circumstances exist which could not have been anticipated." (1433) The board viewed the combination of the incumbent chief's conspiracy, the LOGSA requirements, and the LOGSA refusal to share names as just such an abnormal circumstance. (1434)

Lieutenant Colonel Michael Benjamin.

Terminations for Convenience

Extraordinary, but not so Extraordinary You Get Profit on a Subcontractor's Efforts in your Cost Plus Fixed Fee Contract