In Jaxon Construction, Inc., ASBCA No. 64432 (June 24, 2026)(Rule 12.2, nonprecedential), the ASBCA converted a termination for default to a convenience termination, holding that the government failed to carry its burden of proving there was no reasonable likelihood the contractor could complete on a realistic schedule.
FACTS
The Army awarded Jaxon a firm-fixed-price contract for $438,765 to remove and replace the EPDM roof on a building at Rock Island Arsenal, with an 80-working-day performance period. Jaxon missed its initial schedule and quality control plan deadline, submitted deficient preconstruction documents through an extended cure period, and had performed no physical roofing work when the Army issued its termination on December 22, 2025. Both parties understood, however, that EPDM roofing could not be installed below 40 degrees Fahrenheit, and the government’s own witnesses acknowledged that winter completion was impossible. The contracting officer’s November 25 cure extension explicitly invited Jaxon to submit a schedule showing the working days needed for physical completion and stated that, if the submittals were acceptable, the parties would discuss a possible winter hold. Jaxon responded with revised submittals and a proposed spring 2026 schedule. The government identified eight Accident Prevention Plan deficiencies in Jaxon’s revised safety plan but never communicated them to Jaxon before terminating because, as the contracting officer testified, the termination decision had already been made.
HOLDING
The Board applied the pre-completion default standard from Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987) – where the government terminates before the performance period expires, it must prove the contracting officer reasonably concluded there was no reasonable likelihood the contractor could complete the work within the time remaining. That conclusion must rest on tangible evidence and the totality of the circumstances. McDonnell Douglas Corp. v. United States, 323 F.3d 1006, 1016–17 (Fed. Cir. 2003).
The Board framed the controlling question carefully: because the government’s own witnesses acknowledged that completion by January was not realistic, the government could not rely on the original contract schedule. It had to prove Jaxon could not complete within a realistically available performance period — in this case, a spring schedule following a winter hold. It did not. Uncommunicated safety deficiencies showed only that Jaxon’s submission was unacceptable as drafted, not that the deficiencies were incurable within the time a winter hold would have provided. Jaxon’s proposed spring schedule was not an anticipatory repudiation because it was not a definite and unequivocal refusal to perform, Danzig v. AEC Corp., 224 F.3d 1333, 1337–38 (Fed. Cir. 2000), and Jaxon had continued submitting revised documents, requested meetings, and proposed a schedule in direct response to the contracting officer’s own request.
The Board also noted, citing M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323, 1331 (Fed. Cir. 2010), that a contractor defending against a default termination need not first submit a certified claim to contest the government’s prima facie case. Only affirmative relief — a time extension or equitable adjustment — requires prior presentment to the contracting officer. Here, Jaxon’s affirmative demands for monetary relief and a time extension — including reimbursement of receipts, lost business opportunities, and emotional distress damages — were dismissed for lack of jurisdiction because none had been presented to the contracting officer as certified claims stating a sum certain.
PRACTICE POINTS FOR FEDERAL CONSTRUCTION CONTRACTORS
The realistic-performance-period framing. When the government terminates before the performance period expires and physical work has been seasonally deferred, the relevant question is not whether the contractor met the original schedule but whether it could complete within a realistic period given the circumstances — including circumstances the government itself acknowledged. A contracting officer who concedes winter completion was impossible cannot then default a contractor for not completing by winter.
Uncommunicated deficiencies cannot satisfy the burden. Withholding known deficiencies from a contractor because the termination decision has already been made will not satisfy the government’s evidentiary burden. Deficiencies the contractor never had an opportunity to correct demonstrate only unacceptability as drafted, not that the deficiencies were incurable.
Responding to a cure notice is not repudiation. Proposing a revised schedule in response to a contracting officer’s express invitation to do so is not anticipatory repudiation. Contractors facing cure notices should respond in writing, propose realistic schedules, continue submitting revised documentation, and document every government statement acknowledging practical constraints on performance. Those facts become the foundation of the contractor’s evidentiary record if the termination goes to hearing.
Sources:
Jaxon Construction, Inc., ASBCA No. 64432 (June 24, 2026), which is available here.
Lisbon Contractors, Inc. v. United States, 828 F.2d 759 (Fed. Cir. 1987)
McDonnell Douglas Corp. v. United States, 323 F.3d 1006 (Fed. Cir. 2003)
Danzig v. AEC Corp., 224 F.3d 1333 (Fed. Cir. 2000)
M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (Fed. Cir. 2010)
ECC CENTCOM Constructors, LLC, ASBCA No. 60647, 18-1 BCA ¶ 37,133
MOQA-AQYOL JV, Ltd., ASBCA Nos. 57963, 60456, 17-1 BCA ¶ 36,909FAR 52.249-10(c).