From Show Cause to Trial: Defending Against a Failure-to-Make-Progress Default

When a failure-to-make-progress default termination is overturned, it is usually for one of two reasons: the government either ignored relevant evidence or misread the evidence it considered. This article explains how to raise those issues in the show-cause response and how to prove them at trial under Lisbon and McDonnell Douglas XII.

A Termination That Should Not Have Happened

The contract involved federal construction work, and the agency had decided the relationship was over. What followed was a termination for default (T4D)—the government’s most powerful contractual weapon and one of the most consequential actions a contracting officer (CO) can take against a contractor. We tried the case, and the Court of Federal Claims later found the termination indefensible.

The court concluded that the agency’s default termination was “so defective that it seems impossible that the contracting officer’s decision was based on a reasonably held belief that [the contractor] could not finish the project.” Alutiiq Mfg. Contractors, LLC v. United States, 143 Fed. Cl. 689, 699 (2019). The trial record showed documented performance improvements after personnel changes, the government’s contribution to delay, and dishonesty and hostility by the senior government official whose analysis informed the termination. On de novo review of the facts existing at termination, the court held that the government’s prediction was not objectively justified and converted the default termination into one for convenience.

The Alutiiq decision offers a useful guide to defending against default termination for failure to make progress. We begin with some of the consequence of termination before addressing the standard of review applicable to failure-to-make-progress terminations, the lessons of Alutiiq, the show-cause response, and trial.

The Stakes

After a default termination, the surety may tender to a completion contractor, finance the original contractor, or deny the claim. The government may also reprocure and assess excess costs directly. FAR 49.404(b)–(d). When the surety takes over, it typically selects the completion contractor, negotiates under time pressure, and funds costs above the remaining contract balance while looking to the defaulted contractor under the indemnity agreement. FAR 49.404(c)–(e). Because the contractor who will ultimately bear those excess costs has no seat at the selection or pricing table, completion often costs substantially more than the remaining work would have cost under the original contract.

When a wrongful termination for default is reversed, that exposure disappears. The default termination is converted into a termination for convenience (T4C). The contractor usually recovers costs (including amounts paid to the surety) and profit on work performed, as well as the opportunity to recover for existing claims. The contractor may seek correction of the adverse CPARS entry based on the default termination. A conversion ordinarily eliminates the default-based completion exposure underlying the surety’s principal indemnity claim, although the parties’ remaining rights depend on the indemnity agreement and the amounts already incurred.

Those are the stakes. Everything that follows is about how a contractor can best position itself to defend against a default for failure to make progress.

The standard of review, the lessons of Alutiiq, the show cause response, and the trial strategy all address the same question: whether the contemporaneous project record objectively supported the government’s prediction that timely completion was no longer reasonably likely. The analysis proceeds in five parts:

the objective reasonableness standard governing failure-to-make-progress terminations;
the lessons of Alutiiq and the factual record that defeated the termination;
the explanation of why Alutiiq is not a bad faith case, notwithstanding at least one court’s finding to the contrary;
the cure letter or show cause response as both prevention tool and trial-record foundation; and
the trial strategy when prevention fails.

The Standard: Objective Reasonableness

Federal construction contracts subject to the Federal Acquisition Regulations (FAR) include a standard default clause, FAR 52.249-10, authorizing the government to terminate a contractor’s right to proceed if the contractor “refuses or fails to prosecute the work . . . with the diligence that will ensure its completion within the time specified in this contract.” That is the ground addressed here: not a missed completion date, but a mid-performance determination—a prediction—that the contractor is not making adequate progress to ensure timely completion. The clause gives the contracting officer authority. What it does not answer is the standard that governs its exercise.

The Federal Circuit answered that question in Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 765 (Fed. Cir. 1987), and refined the answer in McDonnell Douglas Corp. v. United States, 323 F.3d 1006, 1016 (Fed. Cir. 2003) (McDonnell Douglas XII): the CO must hold a reasonable belief, based on tangible direct evidence, that there is no reasonable likelihood the contractor will complete the contract on time. That belief must be objectively justified. The CO’s subjective conviction, no matter how sincerely held, is not enough. Wilner v. United States, 24 F.3d 1397, 1401-02 (Fed. Cir. 1994) (de novo review by the court precludes any presumption that the contracting officer’s decision was correct).

That distinction controls the litigation inquiry. In its de novo review, the court does not ask whether the CO performed the required analysis; it asks whether the termination was objectively justified on the facts existing at the time of termination, regardless of whether the contracting officer knew of or relied upon them. McDonnell Douglas XII, 323 F.3d at 1016. The CO’s paperwork and testimony matter, but the ultimate question is whether the project record supports the conclusion reached.

The Federal Circuit reiterated this point in Dep’t of Transp. v. Eagle Peak Rock & Paving, Inc., 69 F.4th 1367 (Fed. Cir. 2023), vacating a board decision that had converted a default termination based on perceived deficiencies in the contracting officer’s reasoning rather than on the board’s own findings from the record developed before the board. De novo means what it says: the tribunal resolves the question on the litigation record, and the adequacy of the CO’s contemporaneous analysis is not itself the issue. Eagle Peak also supplies the single limit on that principle — the termination must be performance-based and not pretextual. Id. at 1374.

FAR 49.402-3(f) identifies seven factors the CO must consider before terminating for default. Failure to document those factors does not itself invalidate the termination because the regulation establishes an internal government procedure rather than an enforceable contractor right. DCX, Inc. v. Perry, 79 F.3d 132, 135 (Fed. Cir. 1996). The omitted facts may nevertheless matter in de novo review if they bear on whether the termination was objectively justified, and a failure to consider the factors may also support an abuse-of-discretion argument. Darwin Constr. Co. v. United States, 811 F.2d 593, 598 (Fed. Cir. 1987); Fairfield Scientific Corp. v. United States, 611 F.2d 854 (Ct. Cl. 1979).The standard is now settled. A contractor confronting a threatened failure-to-make-progress termination should use it twice: first, to identify and correct gaps in the government’s factual premise before termination; and second, if termination nonetheless ensues, to present a complete de novo record establishing that the prediction of untimely completion was not objectively justified on the facts existing at termination.

What the Alutiiq Court Found and its Lessons

The June 8, 2015, termination notice described three primary grounds as the basis for termination: (1) Alutiiq’s alleged failure to prosecute the work with the diligence that would ensure timely completion; (2) Alutiiq’s alleged failure to provide adequate assurances it would timely complete; and (3) Alutiiq’s alleged failure to comply with certain contract provisions, such as providing “adequate supervision on a recurring basis.” Alutiiq, 143 Fed. Cl. at 695. In his termination letter, the CO outlined five “acts or omissions” in justifying his decision to terminate for default: (1) Alutiiq’s inability to secure an asphalt subcontractor; (2) personnel gaps in Alutiiq’s management team; (3) failure to submit project records and as-built drawings; (4) failure to submit routine documents and photographs; and (5) “a belief of the onsite government personnel that the project is now at least 10% behind schedule.” Id. at 695. On paper, the termination may have looked defensible: continued personnel changes, documented performance concerns, potentially significant delay, and both a previous letter of concern and cure notice.

The trial record showed something different. It showed that the CO failed to account for facts directly relevant to whether the decision to terminate was objectively reasonable. The contractor had made documented performance improvements after personnel changes in the weeks before termination. The CO acknowledged those improvements in the termination notice but did not properly account for them, and he relied on an earlier revised baseline schedule that did not reflect those improvements to the schedule even though the agency had possessed the contractor’s recovery schedule for more than three weeks prior to termination. Alutiiq, 143 Fed. Cl. at 698.

In addition, the government’s own conduct materially contributed to the contractor’s performance and schedule problems. The termination relied in part on the contractor’s inability to get an approved asphalt mix and resulting delay. However, the court found those problems were caused by the specification, not contractor performance. Further, the CO addressed only two of the seven FAR 49.402-3(f) factors while ignoring the recovery schedule and the agency’s role in the specification problem. Id.

Further, the government’s analysis of Alutiiq’s ability to complete on time—even assuming it was behind schedule at termination—was flawed. Alutiiq submitted a revised recovery schedule on May 15. That same day, but before receipt of that recovery schedule, the CO was instructed by higher headquarters to begin preparing for termination. The government held a conference call on May 18 to discuss Alutiiq’s May 15 recovery schedule. The contracting officer’s representative (COR)—the only relevant person who was onsite—had completed his analysis of the recovery schedule, but it was based on a “quick glance” and consisted of a one-page list of questions and concerns. Id. at 694. Neither he nor anyone else performed a critical path analysis of the recovery schedule. Id.

Finally, the court found that the COR “supplied the analysis that informed the Agency’s termination decision.” Id. at 697. As a result, the court evaluated his actions and credibility. Id. Having done so, the court found that the COR had a history of “dishonesty and hostility towards” the contractor. Id. at 698–99. The government had not performed any analysis of excusable delay, the urgency of the need for the work, the time required for a successor contractor to complete the project, or Alutiiq’s improved performance. Id. at 698. Ultimately, the court concluded that the termination was “so defective that it seems impossible that the contracting officer’s decision was based on a reasonably held belief that [the contractor] could not finish the project.” Id. at 699.

In progress-based default terminations, Alutiiq demonstrates that the government’s case succeeds or fails based on the integrity of its prediction of timely completion. The decision-maker must assess the entire contract effort and time remaining under the objective Lisbon/McDonnell Douglas standard. The analysis also should compare the incumbent’s completion path with the likely time required for a successor. When a follow-on contractor finishes later and encounters similar obstacles, that comparative record can be powerful evidence that the original prediction was unreasonable.

The case also underscores that the evidentiary foundation for the termination must be free of bias and anchored in credible, contemporaneous data rather than the filtered beliefs of a hostile or dishonest government representative. Counsel should attack defaults built on cursory, “quick glance” schedule critiques, unquantified estimates like “10% behind schedule,” and laundry lists of management or documentation deficiencies never tied to impairment of the critical path. Contractor counsel can also shape the record by treating cure notices and letters of concern as future exhibits in a Lisbon/FAR analysis and documenting the schedule logic, excusable delay, specification issues, management improvements, and other pertinent facts the government’s prediction must address.The lessons of Alutiiq identify the facts contractors should develop before litigation begins, typically in the show cause response. The sections that follow explain how to build that response, what defenses it must assert, and how it becomes the foundation of the case if termination occurs.

Alutiiq is not a bad faith decision.

The relevance of the evidence of dishonesty and hostility in Alutiiq has been misread. In Cherokee Gen. Corp. v. United States, 150 Fed. Cl. 270, 280 (2020), the court characterized Alutiiq as a bad faith case—treating the dishonesty and hostility findings as a formal bad faith holding and using that characterization to limit the decision’s precedential reach. That reading is wrong. Alutiiq was not a bad faith case. Bad faith was not pleaded. It was not argued as an independent ground. It was not decided. The court did not apply the clear-and-convincing standard that a formal bad faith claim requires. That distinction is not new. The Federal Circuit rejected the government’s contention that a contractor challenging a default termination as arbitrary, capricious, or an abuse of discretion must also prove bad faith. Darwin Constr. Co. v. United States, 811 F.2d 593, 598 (Fed. Cir. 1987). Cherokee reintroduces the requirement Darwinforeclosed.

Instead, evidence of official bias or misconduct may impeach objective reasonableness by showing that the conclusion was not the product of a fair analysis of the relevant facts. That is what happened in Alutiiq. A formal bad faith claim is different.

Cherokee conflated that impeachment of objective reasonableness with bad faith. Alutiiq supports the first, not the second. A contractor need not plead bad faith to put official hostility before the court when that evidence bears on objective reasonableness. Practitioners relying on Alutiiq should be prepared to say so. Accepting the Cherokeecharacterization concedes ground the decision does not require—and significantly increases the burden of proof.

Responding to the Show Cause Notice

Before turning to the response itself, one preliminary point is necessary: FAR 52.249-10 does not require the government to issue a show cause notice before terminating a fixed-price construction contract for failure to make progress. A cure notice is sufficient. ONI Constr., Inc., ASBCA Nos. 45394, 46087, 46303, 96-2 BCA ¶ 28,277 (Apr. 9, 1996). In practice, however, contracting officers often issue show cause notices before proceeding with termination for default. This article assumes a show cause notice was issued but applies equally to the response to a cure notice if the government is seriously considering default termination.

The show cause response serves two purposes: (1) persuading the contracting officer not to terminate and (2) building the factual record for any later litigation. A thorough response can accomplish both; a weak one forfeits an opportunity to prevent a default termination that will be more expensive to reverse.

The goal is not to prove timely completion was probable, but to establish that it remained reasonably possible. A documented recovery plan supported by current site conditions and an honest accounting of the remaining work can do so.The FAR 49.402-3(f) factors define the CO’s internal checklist, not the framework governing de novo review. Several have limited application to fixed-price construction contracts, and a contractor cannot reverse a termination merely because the CO failed to work through them. DCX, Inc. v. Perry, 79 F.3d 132, 135 (Fed. Cir. 1996). Because the show cause response is the contractor’s opening presentation of the record a court may later review, it should be organized around the McDonnell Douglas XII framework rather than the CO’s internal checklist.

Alutiiq is not a bad faith decision.

Responding to the Show Cause Notice

Step 1 — Buy Time. The FAR-prescribed response period is ten days, which is rarely enough. Request an extension immediately. A request equal to fifty percent of the initial period is generally defensible; more invites denial. If the relationship with the government is acrimonious, expect little or no extension.

Step 2 — Assemble the Record. The show cause does not arrive in a vacuum. Correspondence, meeting minutes, daily reports, RFIs, time impact analyses, submittals, inspection reports, change requests, and subcontractor communications relevant to the issues raised in the show cause notice already exist. Organize them into a documented, persuasive narrative showing why termination cannot be justified.

Step 3 — Build the Response Around the Schedule. The show cause response has one controlling objective: establish that a reasonable likelihood of timely completion existed at termination. The court will ultimately decide whether the termination was objectively justified on the project record, not whether the CO followed a particular process, addressed the FAR 49.402-3(f) factors, or identified paperwork deficiencies. Reconstruct the schedule before rebutting the CO’s stated grounds.

Reconstruct the Schedule from the Ground Up.

Start with the original contract completion date and work backward through the project record. For every period of delayed or disrupted performance, identify the cause, determine whether the government bears sole or concurrent responsibility, and document the event with contemporaneous daily reports, meeting minutes, RFI and submittal logs, correspondence, inspection records, weather data, and government directives. The objective is an adjusted completion date that accounts for all excusable and government-caused delay. If that date remains achievable, the record supports a realistic path to completion despite any contractor responsibility for slippage.

The McDonnell Douglas XII Factors.

The show cause response should be built to satisfy the factors a court will apply in de novo review. In McDonnell Douglas XII, the Federal Circuit identified the factors “usually relied upon by courts and contract boards” in evaluating a failure-to-make-progress termination: the contracting officer’s testimony and contemporaneous documents; a comparison of the percentage of work completed and the amount of time remaining; the contractor’s failure to meet progress milestones; problems with subcontractors and suppliers; the contractor’s financial situation; the contractor’s performance history; and other pertinent circumstances surrounding the decision. McDonnell Douglas XII, 323 F.3d at 1016–17. Eagle Peak added that the termination decision “must be performance-based and not pretextual.” Eagle Peak, 69 F.4th at 1374.

These factors inform a single determination: whether tangible, direct evidence supported a reasonable belief that timely completion was no longer reasonably likely. A documented schedule reconstruction changes the analysis of the percentage-complete, milestone, and contemporaneous-document factors by accounting for excusable and government-caused delay.

Tangible, direct evidence. This is the master standard, and every other factor bears on it. The CO’s testimony and contemporaneous documents establish what the CO knew, had available, or chose not to address. A CO who possessed a contractor-submitted recovery schedule but declined to engage with it has a direct-evidence problem, as the court found in Alutiiq. By placing documented facts before the CO, the show cause response creates contemporaneous evidence and exposes any gap left by a written response or silence.

Percentage complete versus time remaining. In a construction contract with a fixed completion date, this is the central metric. Courts look for a relationship between work accomplished and time consumed that makes recovery mathematically implausible without extraordinary acceleration. In FFR-Bauelemente + Bausanierung GmbH, ASBCA Nos. 52152, 54563, 54808, 54809, 55017, 2007-2 BCA ¶ 33,627, at 166,558 (July 6, 2007), for example, the ASBCA found termination justified where less than 5% of the work was complete after nearly 40% of the performance period had elapsed with little prospect of correction. The counter to such a comparison is a credible, supported recovery schedule showing realistic acceleration — realistic meaning grounded in actual manpower commitments, material procurement, subcontractor plans, and correct sequencing. A recovery schedule that the CO receives and ignores creates contemporaneous evidence that the government’s percentage-gap analysis may be incomplete. One that is not submitted leaves that analysis without the contractor’s documented alternative.

Failure to meet progress milestones. Missed milestones are the government’s most accessible evidence. The response must address each missed milestone cited by the CO and map any milestone failure caused by government conduct — late submittal approvals, specification problems, access delays, government-furnished property failures — to the specific event that caused it. A missed milestone attributable to government action does not carry the same evidentiary weight as a milestone missed through contractor-caused delay; it may instead demonstrate government contribution to the performance record the CO cites. The response should make that attribution explicit, document the causal link, and submit the supporting record while the CO can still act on it.

Other pertinent circumstances. This catch-all is where the most consequential cases are decided. Eagle Peak’s pretext limitation cuts both ways: just as the government cannot terminate on grounds unrelated to performance, the contractor can show that the performance record the CO cited was itself the product of government conduct — defective specifications, changed conditions, access failures, CO or COR misconduct. Alutiiq is the model. The court converted the termination not because the paperwork was deficient but because the CO ignored facts that fell squarely within “other pertinent circumstances”: documented post-personnel-change performance improvements and a government specification problem the court called a “red herring” in the performance record. Those facts were in the record. The CO ignored them. The court did not convert the default to convenience merely because the CO ignored those facts (or any FAR factor) but because those facts—when properly considered during the de novo review—rendered the CO’s decision unsupportable.

The comparative-time question. FAR 49.402-3(f)(4) directs the CO to weigh the urgency of the need and the period required to obtain performance from other sources “as compared with the time delivery could be obtained from the delinquent contractor.” In construction, that comparison is often the most revealing thing in the file—and it is frequently not made. A termination premised on the prediction that the incumbent cannot finish on time does not improve the government’s position if reprocurement will take longer still. Where the record shows that a successor could not complete sooner — because of the reprocurement interval, the successor’s learning curve, seasonal constraints, or the same site conditions that impeded the incumbent — the government’s own remedy contradicts the premise of the termination.

This is not a rule that a slower reprocurement bars default. The default clause does not condition the government’s right on reprocurement being faster, and a contractor that is unable or unwilling to perform can be terminated regardless of what completion by others would require. But the comparison bears directly on whether the prediction was objectively reasonable on the record, and its absence is evidence that the decision was not the product of the analysis the standard contemplates. Where the government’s real complaint is late completion rather than inability to perform, the contract supplies a remedy for that — liquidated or actual delay damages — and the show cause response should say so.

A default termination that is otherwise within the government’s contractual right may still be set aside if the discretion to terminate was abused, and the finding of abuse is itself the predicate for converting the termination to one for convenience. Darwin Constr. Co. v. United States, 811 F.2d 593, 598–99 (Fed. Cir. 1987). Darwin is instructive on the facts as well as the law: the contractor had completed roughly 65% of the work at the deadline and responded to the show cause notice by stating it was ready to complete and offering to finish in approximately four additional days; the Navy terminated instead, having advised that further access to the facility would not be available for months. Document the comparison while the CO can still act on it.

Claims arising under the contract that affect progress or schedule — excusable delay, differing site conditions, constructive changes carrying a time impact — belong under the percentage-complete and milestone factors, not the catch-all. They do not merely reframe the character of the performance record; they affirmatively restructure the numerical picture those factors present. A contractor that appears 30% behind schedule may be on schedule or close to it once excusable delay is properly credited. The catch-all is the home for government-conduct arguments that explain why the performance record looks the way it does — material breach, superior knowledge, CO or COR misconduct. The legal treatment differs as well: claims affecting contract time require CDA presentment before they can be raised as a defense. See Step 4, infra.

Available Defenses.

Do not limit the response to rebutting the government’s stated grounds. Evaluate every potential defense, keep only those the record can support, and match each defense to facts and documents.

Excusable delay. FAR 52.249-10(b) excuses delay caused by unforeseeable events beyond the contractor’s control and without its fault or negligence, including acts of God, acts of the government, epidemics, strikes, freight embargoes, and unusually severe weather. If such events affected the critical path, document the event, duration, and schedule impact. If the defense requires an adjustment of the contract completion date, submit it to the CO as a CDA claim and satisfy any applicable certification requirement before relying on it defensively.

Government contribution to performance problems. Defective specifications, differing site conditions, access delays, late submittal responses, and government-furnished property problems can directly undermine the termination premise. Alutiiq is the model: a government specification problem helped create the very performance record the CO cited as grounds for default. A CO who ignores that contribution has not performed the objective analysis the law requires, and the contractor who documents it shifts the evidentiary foundation of the termination.

Constructive changes. If the government directed work outside the contract’s scope — through defective specifications, changed interpretations, or conduct requiring different performance — that direction affects both the schedule and the contractor’s obligations. Document the direction, the contractor’s response, and the cost and schedule impact. These facts belong in the show cause response because they are part of the record the court will review.

Superior knowledge. If the government possessed material performance information it failed to disclose, and the contractor would have used that information, a superior knowledge defense may be available. See Hercules, Inc. v. United States, 24 F.3d 188, 196 (Fed. Cir. 1994); Assist Consultants Inc., ASBCA Nos. 61525, 62090, 2021-1 BCA ¶ 37,850. The government cannot withhold information foreseeably affecting performance and then cite the resulting failure as grounds for termination.

Waiver. If the government accepted deficient performance long enough, or with sufficient awareness of the contractor’s progress issues, that it waived its right to terminate on those same grounds, the termination should be challenged on that basis. DeVito v. United States, 188 Ct. Cl. 979 (1969). Waiver is not automatic; the circumstances must make it inequitable for the government suddenly to assert default after conduct suggesting it would not. The same logic can apply in failure-to-make-progress cases where the government observes and tolerates deficient progress, directs continued work, and then terminates without further warning. Develop the factual predicate carefully. Note that theDeVito doctrine is not normally applied to failure-to-make-progress default terminations, since the government’s right to terminate in that situation rests on a prediction of future events rather than a missed completion deadline.

Material breach. If the government’s conduct rises to a material breach, the contractor’s non-performance may be excused and the termination wrongful. A breach is material when it relates to a matter of vital importance or goes to the essence of the contract. Malone v. United States, 849 F.2d 1441, 1445–46 (Fed. Cir. 1988). Materiality depends on the nature and effect of the violation considering how the contract was viewed, bargained for, entered, and performed. D’Andrea Bros. LLC v. United States, 109 Fed. Cl. 243, 261 (2013). This is a high threshold. But where the facts show a fundamental government failure that made timely performance impossible or unreasonably burdensome — through superior knowledge, constructive change, defective specifications, denied access, government-furnished property problems, or cumulative interference — assert it with the facts and authority that support it. Note that unlike defenses that affect the schedule, which must be presented to the CO, a prior material breach claim remains available even if not presented to the CO. Securiforce Int’l Am., LLC v. United States, 879 F.3d 1354, 1363 (Fed. Cir. 2018) (overruled on other grounds by ECC Int’l Constructors, LLC v. Sec’y of the Army, 79 F.4th 1364 (Fed. Cir. 2023)).

Bad faith. Bad faith termination requires clear and convincing evidence. Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234, 1239 (Fed. Cir. 2002). Where the record shows hostility, dishonesty, or a motive to terminate regardless of actual performance, plead it and marshal the evidence. Otherwise, use the evidence to show objective unreasonableness.

The FAR 49.402-3(f) Factors.

The seven FAR 49.402-3(f) factors are the CO’s pre-termination checklist. Although the CO’s treatment of them may illuminate the quality of the termination decision, noncompliance is not independently actionable, and de novo review does not require mechanical compliance. In the show cause response, use the factors only to demonstrate that the CO failed to engage with the full project record, and organize the response around the schedule and the McDonnell Douglas XII factors.

Every fact in the show cause response is both an argument to the CO and part of the eventual litigation record. A response that is organized around a documented, adjusted completion date, assists claims under Step 4 below and becomes the foundation of the case if termination occurs.

Step 4 — Comply with Maropakis. If the defense identifies claims that would change contract terms or conditions—excusable delay, differing site conditions, constructive changes, or government-caused delay—prepare and submit them to the CO as soon as possible. Under M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (Fed. Cir. 2010), a contractor raising an affirmative claim as a defense to default must first submit a proper CDA claim. Presentment and certification requirements apply to claims that adjust the terms of the contract whether the claim is raised offensively or defensively. Do not wait for termination.

If the contract is terminated anyway, the CDA clock starts immediately: 90 days to the Board, one year to the Court of Federal Claims. Any affirmative claim not already submitted and certified is then at risk under Maropakis.

Trying the Case

If termination occurs despite the show cause response, a court will apply the same objective-reasonableness framework that has served as the basis of the show cause response to the facts existing at termination. McDonnell Douglas XII, 323 F.3d at 1016. Trial preparation should therefore expose one or more defects in the government’s prediction: relevant evidence was omitted, evidence was misinterpreted, responsibility for delay was misattributed, or an earlier analysis had been overtaken by events. The contractor’s task is to place the complete, corrected record before the court—not to obtain review of the CO’s reasoning.

The show cause response supplies the contemporaneous account that becomes the trial foundation: the facts presented, defenses asserted, claims submitted, and schedule analysis preserved before termination. At trial, that record allows the contractor to correct omissions, causation errors, and outdated assumptions in the government’s prediction.

De novo review means the court decides the question for itself on the record before it. The CO’s conclusion receives no deference, and the sufficiency of the CO’s analysis is not the question presented. The termination decision remains useful as a map of the factual grounds the government asserted and the places where the record may require correction.

Those divergences usually take three forms. The first is evidence the government had but never integrated; that goes to failure to consider relevant evidence. In Alutiiq, the agency held the contractor’s recovery schedule for more than three weeks and terminated on a baseline that did not reflect it. The second is evidence the government interpreted incorrectly, most often by assigning causation to the wrong party; that goes to failure to interpret or apply the evidence correctly. The asphalt mix in Alutiiq is the model: the CO did not overlook the delay; he attributed it to the contractor when, in fact, it was due to the specifications. Correcting attribution does not merely reframe the narrative; it changes the schedule. The third is evidence that was overtaken by events—analysis that was accurate when performed and no longer described the project by the date of termination, as with the performance improvements that followed the personnel changes in Alutiiq. That category often shows both failures at once: the government relied on an outdated slice of the record and then applied that outdated picture as though it still described the project at termination.

Each defect is corrected the same way: with the project record. Contemporaneous documents, percipient witnesses, and schedule analysis establish what was true at termination. None of it requires testimony about what the contracting officer was thinking, and none of it asks the court to grade his work.

Correcting the record does more than show the prediction was wrong. Where the CO’s own file shows that the termination rested on the uncorrected version — the superseded baseline, the misattributed delay — the record establishes that the termination would not have issued had the record been right.

Witness order, examination sequence, and exhibit organization all serve that proposition. Each correction should be established early, through witnesses the government cannot easily attack.

In Alutiiq, the contractor called the contracting officer’s representative in its case-in-chief. He was the government’s daily project witness, the only person who reviewed the recovery schedule, and the only person positioned to analyze it. Calling him first established, on the contractor’s terms, the facts the CO had ignored before the government presented its narrative. The transferable principle is to organize the trial both to persuade the court and to develop the record for post-trial briefing. Because the project record was strong, reliance on government witnesses was not a risk and was more effective.

The court is not limited to the CO’s contemporaneous file and may consider the factors courts and boards typically rely on, including work completed versus time remaining, missed progress milestones, subcontractor and supplier problems, financial condition, and performance history. That matters in two ways: it permits the contractor to build the record at trial, and it defines the evidentiary target. Each witness, exhibit, and examination should address the factors the court will apply.

The government may defend a termination on any factual basis that existed when the notice issued, but not on after-acquired facts, waived grounds, or late theories that unfairly prejudice the contractor. Discovery should lock down every asserted basis through interrogatories and admissions, then support a motion in limine if the government tries to expand the case at trial.

The sequencing decisions, examination choices, and witness structure in Alutiiq were not formulaic; they were specific to the record, judge, and witnesses. The legal standard provides the framework. The show cause response provides the record. Preparation provides everything else. Cases that look easy in a published decision are rarely easy to try.

Conclusion

Every wrongful termination for default is a fact case. The legal framework and available defenses are largely fixed; the project record determines the result. The first obligation is therefore an honest assessment of what the record supports: what the government knew, what it failed to address, what conduct contributed to performance problems, and what defenses and claims the facts can carry.

Strategy follows that assessment. The show cause response is both a persuasive submission and the first implementation of trial strategy, prepared while the CO can still avoid termination. The defenses asserted, claimssubmitted under Maropakis, recovery schedule, and supporting documents should all serve the same objective: prevent termination if possible and, if not, preserve the record needed to convert a wrongful T4D to a T4C.

The framework is available in every failure-to-progress termination case, but the result depends on the facts developed before termination and the record proved at trial. The law supplies the standard; disciplined preparation determines whether the record can satisfy it.

Primary Authorities

Alutiiq Mfg. Contractors, LLC v. United States, 143 Fed. Cl. 689 (2019)

Lisbon Contractors, Inc. v. United States, 828 F.2d 759 (Fed. Cir. 1987)

Cherokee Gen. Corp. v. United States, 150 Fed. Cl. 270 (2020)

DeVito v. United States, 188 Ct. Cl. 979 (1969)

Malone v. United States, 849 F.2d 1441 (Fed. Cir. 1988)

D’Andrea Bros. LLC v. United States, 109 Fed. Cl. 243 (2013)

M. Maropakis Carpentry, Inc. v. United States, 609 F.3d 1323 (Fed. Cir. 2010)

DCX, Inc. v. Perry, 79 F.3d 132 (Fed. Cir. 1996)

Darwin Constr. Co. v. United States, 811 F.2d 593 (Fed. Cir. 1987)

Fairfield Scientific Corp. v. United States, 611 F.2d 854 (Ct. Cl. 1979)

Hercules, Inc. v. United States, 24 F.3d 188 (Fed. Cir. 1994)

Assist Consultants Inc., ASBCA Nos. 61525, 62090, 2021-1 BCA ¶ 37,850

McDonnell Douglas Corp. v. United States, 323 F.3d 1006 (Fed. Cir. 2003) (McDonnell Douglas XII)

Am-Pro Protective Agency, Inc. v. United States, 281 F.3d 1234 (Fed. Cir. 2002)

ONI Constr., Inc., ASBCA Nos. 45394, 46087, 46303, 96-2 BCA ¶ 28,277 (Apr. 9, 1996)

Wilner v. United States, 24 F.3d 1397 (Fed. Cir. 1994)

Dep’t of Transp. v. Eagle Peak Rock & Paving, Inc., 69 F.4th 1367 (Fed. Cir. 2023)

Securiforce Int’l Am., LLC v. United States, 879 F.3d 1354 (Fed. Cir. 2018)

ECC Int’l Constructors, LLC v. Sec’y of the Army, 79 F.4th 1364 (Fed. Cir. 2023)

FFR-Bauelemente + Bausanierung GmbH, ASBCA Nos. 52152, 54563, 54808, 54809, 55017, 2007-2 BCA ¶ 33,627 (July 6, 2007)