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In a December 2020 opinion, the United States Civilian Board of Contract Appeals (the “Board”) reviewed and reversed a Federal Highway Administration (“FHWA”) Contracting Officer’s (“CO”) decision to terminate for default Eagle Peak Rock & Paving, Inc.’s thirty-six million dollar contract (the “Contract”) for work on a project in Yellowstone National Park (the “Project”). Its decision underscored the fact that government “Terminators” should think twice before terminating a contractor for default.
In May of 2016, FHWA awarded Eagle Peak the Contract for the Project. The Contract anticipated a three-year Project duration, and it was governed by both the Federal Acquisition Regulations and FHWA Special Contract Requirements. Pursuant to a provision in those documents, Eagle Peak had to submit an initial construction schedule within twenty days of receiving its notice to proceed. The construction