A new Federal Circuit decision, JKB Solutions & Services, LLC v. United States, held that the government could not rely on the commercial item termination for convenience clause
Inc.,
13 the ASBCA rejected the
contractor s attempt to escape default arising from the
contractor s admitted nonperformance after the government
exercised its offset right. No dispute existed that the government
had terminated the contract because the contractor failed to
deliver the specified equipment by the contractually required
delivery date. The contractor nevertheless argued unsuccessfully
that the government should have excused the nonperformance of its
subcontractor due to lack of payment because the government had
withheld payments to the prime contractor based on problems the
prime had experienced on a separate contract effectively
exercising its offset right. The board held that the default