Armed Services Board of Contract Appeals
Appeal of Gideon Contracting, LLC
Case no.: 63561
Date filed: May 12, 2025
Overview
The Armed Services Board of Contract Appeals has denied the majority of a contractor’s “suspension of work” claim. The contractor consented to the government’s first suspension order, and the second suspension was contemplated by the contract. Neither suspension, with minor exceptions, could be considered unreasonable in duration.
Background
The Army Corps of Engineers awarded a fixed-price contract to Gideon Contracting LLC for repairs to the discharge conduit of a dam in McCurtain County, Oklahoma. The dam—managed by the Corps for flood control purposes—impounds Pine Creek Lake which has an associated drainage area of 635 square miles.
The contract said the Corps would suspend Gideon’s work during flood emergencies, defined as pool elevations of 462 feet or higher. The contract included historical reservoir data but did not indicate how long a suspension of work might last. The contract contained a standard Suspension of Work clause compensating the contractor for government-ordered suspensions of unreasonable duration.
Heavy rain brought the lake elevation close to the 462-foot limit. The Corps told Gideon it was considering drawing the lake down to 438 feet, a decision. Gideon encouraged. When the Corps said maybe 441 feet would be sufficient, the contractor said 438 feet would be better for its work on the discharge conduit. The Corps directed Gideon to suspend work and demobilize from the conduit. The Corps drew down the lake to 438 feet and continued releasing water for three more days before lifting the suspension order.
About a month later, the lake elevation had risen again, and the Corps directed another work suspension and demobilization. This second discharge took longer than expected. When the elevation finally reached 438 feet, the Corps did not lift the suspension order for another seven days due to a forecast for more rain.
Gideon filed a claim for compensation under the Suspension of Work clause, arguing that the Corps had mismanaged the discharge process, which had caused suspensions of unreasonable duration.
The Ruling
The board said the first suspension period could not be considered unreasonable because Gideon encouraged the water release and benefited from it. “Gideon approved of the reduction in the lake’s level to 438 feet, even reminding the government of that desire on March 15, when the government possibly suggested settling for 441 feet. Given that Gideon desired that reduction in the lake level, we find most of the suspension did not adversely affect it so was not unreasonable.”
The continued release for three more days after reaching 438 feet was unexplained, however. “In the absence of an explanation for imposing that additional delay and its associated costs upon Gideon, we find it unreasonable. Gideon is entitled to an adjustment for the increased cost of performance associated with the suspension from March 22 through 24, 2021.”
The second suspension of work was contemplated by the contract, which defined flood emergencies and authorized demobilization from the discharge conduit. “Because the government was permitted by the contract terms to suspend work for this release on April 28, and it ended the release on July 12, when the lake reached the level requested by Gideon, there was nothing unreasonable about the duration of the suspension for this purpose and the remobilization.”
Again, however, the Corps had been slow to lift the suspension order. “[I]t was unreasonable to continue the suspension based merely upon a forecast of rain, devoid of any other specifics. Accordingly, Gideon is entitled to an adjustment of the increased cost of performance associated with the seven days of suspension from July 13 to 19, 2021.”
Conclusion
A contractor claimant has the burden of proving the “unreasonableness” of a suspension duration. But as this case illustrates, the government must present some factual evidence of the need for a continuing suspension.
Participants:
For Gideon Contracting: Robert L. Mangrini, Oklahoma City, Oklahoma
For the Corps of Engineers: Stephanie J. Milburn, Tulsa, Oklahoma
Before: Administrative Judge Melnick
Opinion by: Judge Hensal
Outcome: Contractor’s claim sustained in part and denied in part.
Please click here to read the complete opinion.
