Securiforce International America, LLC v. United States , 879 F.3d 1354 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
SECURIFORCE INTERNATIONAL AMERICA, LLC,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Cross-Appellant
______________________
2016-2589, 2016-2633
______________________
Appeals from the United States Court of Federal
Claims in No. 1:12-cv-00759-MBH, Judge Marian Blank
Horn.
______________________
Decided: January 17, 2018
______________________
FREDERICK W. CLAYBROOK, JR., Claybrook LLC,
Washington, DC, argued for plaintiff-appellant. Also
represented by BRIAN TULLY MCLAUGHLIN, Crowell &
Moring, LLP, Washington, DC; ROBERT JOHN WAGMAN,
JR., Bracewell LLP, Washington, DC.
PATRICIA M. MCCARTHY, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-cross-
appellant. Also represented by CHAD A. READLER, ROBERT
E. KIRSCHMAN, JR., RUSSELL JAMES UPTON, JEFFREY
2 SECURIFORCE INTERNATIONAL v. UNITED STATES
LOWRY; JILL BUCHOLZ RODRIGUEZ, Defense Logistics
Agency, Ft. Belvoir, VA.
______________________
Before DYK, O’MALLEY, and WALLACH, Circuit Judges.
DYK, Circuit Judge.
Securiforce International America, LLC (“Securi-
force”), a government contractor, filed suit in the Court of
Federal Claims (“Claims Court”) under the Tucker Act, 28
U.S.C. § 1491, and the Contract Disputes Act of 1978
(“CDA”), 41 U.S.C. §§ 7101-09. It sought a declaration
that its contract for fuel delivery was improperly termi-
nated by the Defense Logistics Agency (“DLA” or the
“government”)—in part for the government’s convenience
and in part for default. The Claims Court held that the
CDA provided it with jurisdiction over both terminations;
that the termination for convenience was improper; and
that the termination for default was proper. Securiforce
Int’l Am., LLC v. United States (Securiforce I), 125 Fed.
Cl. 749 (2016). The Claims Court also denied Securi-
force’s posttrial sanctions motions. Securiforce Int’l Am.,
LLC v. United States (Securiforce II), 127 Fed. Cl. 386
(2016).
We affirm the Claims Court’s determinations except
its determination that it had jurisdiction to adjudicate an
affirmative, declaratory claim with respect to the termi-
nation for convenience; on that one issue, we vacate the
judgment of the Claims Court and remand with directions
to dismiss.
BACKGROUND
In September 2011, Securiforce entered into a re-
quirements contract with the government to deliver fuel
to eight sites in Iraq. Shortly after the contract was
executed, on September 26, the government terminated
the contract for convenience with respect to two of the
SECURIFORCE INTERNATIONAL v. UNITED STATES 3
eight sites (the “termination for convenience”). Because
Securiforce intended to supply fuel from Kuwait, the
government concluded that delivery to those two sites
without an appropriate waiver would have violated the
Trade Agreements Act of 1979 (“TAA”), 19 U.S.C. §§ 2501-
81, and that obtaining a waiver would have taken too
long.
Thereafter, in mid-October, the government placed
oral orders for small deliveries to two of the remaining
sites, the deliveries to occur by October 24. In the weeks
that followed, however, Securiforce informed the govern-
ment that it would not be able to deliver until, first, early
and, then, late November. Losing confidence that Securi-
force would be able to make the deliveries, the govern-
ment sent Securiforce notice that it should offer justifiable
excuses for its delays or risk a termination for default.
Securiforce responded, contending that various govern-
ment breaches excused the late deliveries, including the
allegedly improper termination for convenience, the
failure to provide required security escorts, the small size
of the orders, and other alleged irregularities attributable
to the government. Unpersuaded, the government termi-
nated the remainder of the contract for default on No-
vember 15 (the “termination for default”).
Securiforce filed its initial complaint in the Claims
Court the following year, on November 6, 2012, request-
ing declaratory relief that the termination for default was
improper. On November 16, Securiforce sent the govern-
ment a letter requesting a final decision by the contract-
ing officer (“CO”) that the termination for convenience
was improper. On January 16, 2013, the CO denied
Securiforce’s request because it did not seek damages in a
sum certain, and on January 23 Securiforce amended its
complaint in the Claims Court to include an additional
request for declaratory judgment that the termination for
convenience was improper.
4 SECURIFORCE INTERNATIONAL v. UNITED STATES
Following a bench trial, the Claims Court issued its
findings of fact and conclusions of law. Securiforce I, 125
Fed. Cl. 749. The court found that it had jurisdiction to
review Securiforce’s claims concerning both the termina-
tion for convenience, id. at 764-81, and the termination
for default, id. at 788. Reaching the merits of the termi-
nation-for-convenience claim, the court found the CO
abused her discretion in partially terminating the con-
tract for convenience and, in doing so, breached the gov-
ernment’s contract with Securiforce. Id. at 781-87. The
court then found the termination for default proper,
rejecting Securiforce’s claim that its nonperformance
could be excused by the government’s actions, id. at 787-
99, and explaining that Securiforce’s failure to perform
“was a product of its own making,” because it had failed to
make proper and timely arrangements to acquire and
deliver fuel, id. at 793. In a follow-up opinion, the court
denied Securiforce’s posttrial sanctions motions. Securi-
force II, 127 Fed. Cl. 386.
Securiforce timely appealed, and we have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(3).
DISCUSSION
We review the legal conclusions of the Claims Court
de novo and its findings of fact for clear error. Rasmuson
v. United States, 807 F.3d 1343, 1345 (Fed. Cir. 2015).
I
A
We first consider whether the Claims Court had sub-
ject-matter jurisdiction to review the termination for
convenience. “Whether the Court of Federal Claims had
jurisdiction under the CDA is a question of law we decide
de novo,” K-Con Bldg. Sys., Inc. v. United States, 778 F.3d
1000, 1004 (Fed. Cir. 2015), but “we review the trial
court’s findings of fact relating to jurisdictional issues for
clear error,” John R. Sand & Gravel Co. v. United States,
SECURIFORCE INTERNATIONAL v. UNITED STATES 5
457 F.3d 1345, 1353 (Fed. Cir. 2006), aff’d, 552 U.S. 130
(2008). The plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence. Brandt v.
United States, 710 F.3d 1369, 1373 (Fed. Cir. 2013).
“A prerequisite for jurisdiction of the Court of Feder-
al Claims over a CDA claim is a final decision by a con-
tracting officer on a valid claim.” Northrop Grumman
Computing Sys., Inc. v. United States, 709 F.3d 1107,
1111-12 (Fed. Cir. 2013); see also 28 U.S.C. § 1491(a)(2);
41 U.S.C. § 7104(b)(1). Because the CDA does not define
“claim,” we look to the Federal Acquisition Regulation
(“FAR”), which defines a claim as “a written demand or
written assertion by one of the contracting parties seek-
ing, as a matter of right, the payment of money in a sum
certain, the adjustment or interpretation of contract
terms, or other relief arising under or relating to th[e]
contract.” FAR 52.233-1(c); see also J.A. 789 (incorporat-
ing this clause into Securiforce’s contract). We have
explained that for monetary claims, the absence of a sum
certain is “fatal to jurisdiction under the CDA.” Northrop,
709 F.3d at 1112; accord M. Maropakis Carpentry, Inc. v.
United States, 609 F.3d 1323, 1327-29 (Fed. Cir. 2010).
Relatedly, “once a claim is in litigation, the contracting
officer may not rule on it—even if the claim . . . was not
properly submitted to and denied by the contracting
officer before it was placed in litigation.” K-Con, 778 F.3d
at 1005.
The government offers two alternative arguments
against the Claims Court’s jurisdiction, both based on
Securiforce’s purported failure to obtain a final decision
from the CO before bringing its claim into court. First,
the government contends that the filing of Securiforce’s
initial complaint in the Claims Court ousted the CO of
authority to decide the claim presented in Securiforce’s
subsequent letter. Second, the government argues that
even if the CO had authority to decide the claim, Securi-
force failed to state a sum certain in its letter to the CO,
6 SECURIFORCE INTERNATIONAL v. UNITED STATES
as required by the CDA. Because we agree with the
government on the second of these points, we need not
reach the first.
As noted above, Securiforce submitted a letter to the
CO concerning the termination for convenience on No-
vember 16, 2012, ten days after it filed its initial com-
plaint in the Claims Court. Securiforce’s letter to the CO
did not state a sum certain but rather purported to seek
only a declaration that the termination for convenience
constituted a material breach of the contract. The Claims
Court determined that it had jurisdiction because this
“letter constituted a valid claim to the contracting officer
for non-monetary relief.” Securiforce I, 125 Fed. Cl. at
775. We disagree.
While contractors may in some circumstances proper-
ly seek only declaratory relief without stating a sum
certain, they may not circumvent the general rule requir-
ing a sum certain by reframing monetary claims as non-
monetary. In a related context, we have been careful to
recognize this distinction. The Administrative Procedure
Act (“APA”) provides a cause of action for nonmonetary
claims against the government, 5 U.S.C. § 702, so long as
“there is no other adequate remedy in a court,” id. § 704.
The Tucker Act, however, provides exclusive jurisdiction
in the Claims Court for monetary claims exceeding
$10,000. See 28 U.S.C. §§ 1346(a)(2), 1491(a)(1). The
question in many of our prior cases, then, has been
whether a given claim is properly classified as monetary
or nonmonetary. We and other courts of appeals have
consistently held that litigants may not avoid the Claims
Court’s exclusive jurisdiction by dressing up monetary
claims in other courts as requests for nonmonetary,
declaratory relief under the APA. Doe v. United States,
372 F.3d 1308, 1313 (Fed. Cir. 2004) (collecting cases).
In making this determination, “we customarily look to
the substance of the pleadings rather than their form.”
SECURIFORCE INTERNATIONAL v. UNITED STATES 7
Brazos Elec. Power Coop., Inc. v. United States, 144 F.3d
784, 787 (Fed. Cir. 1998). If “the only significant conse-
quence” of the declaratory relief sought “would be that
[the plaintiff] would obtain monetary damages from the
federal government,” the claim is in essence a monetary
one. Id. We see no reason to depart from this principle
here, when determining whether a claim is monetary or
nonmonetary for purposes of CDA jurisdiction.
Securiforce’s claim concerning the termination for
convenience, although styled as one for declaratory relief,
would—if granted—yield only one significant conse-
quence: it would entitle Securiforce to recover money
damages from the government. This is confirmed by
Securiforce’s own letter, which asked the CO to decide
whether “Securiforce is entitled to breach damages,”
without specifying an amount. J.A. 139. Indeed, follow-
ing the Claims Court’s ruling, Securiforce sent an addi-
tional letter to the CO, for the first time quantifying its
damages as $47 million. Securiforce’s failure to present
this sum certain to the CO in its November 2012 letter
rendered its claim insufficient. The Claims Court erred in
finding that, “notwithstanding [the government]’s argu-
ment that [Securiforce]’s claim is monetary, the evidence
. . . indicates that [Securiforce’s letter to the CO] was a
claim for non-monetary relief.” Securiforce, 125 Fed. Cl.
at 770; see also John R. Sand, 457 F.3d at 1353. There-
fore, based on these errors, the Claims Court was without
jurisdiction to entertain Securiforce’s declaratory-
judgment claim with respect to the termination for con-
venience.
Securiforce argues that this result is inconsistent with
the text of the Tucker Act, which provides jurisdiction
over “a dispute concerning termination of a contract . . .
and other nonmonetary disputes on which a decision of
the contracting officer has been issued.” 28 U.S.C.
§ 1491(a)(2). This language was added by amendment in
1992 in order to ensure Claims Court jurisdiction over
8 SECURIFORCE INTERNATIONAL v. UNITED STATES
some nonmonetary disputes. See, e.g., Alliant Techsys-
tems, Inc. v. United States, 178 F.3d 1260, 1268-70 (Fed.
Cir. 1999); Garrett v. Gen. Elec. Co., 987 F.2d 747, 750
(Fed. Cir. 1993) (citing Federal Courts Administration Act
of 1992, Pub. L. No. 102-572, sec. 907(b)(1), § 1491(a)(2),
106 Stat. 4506, 4519). However, this jurisdictional
amendment did not relieve parties’ obligation to comply
with the separate requirements of the CDA, including the
statement of a sum certain where, as here, the party is in
essence seeking monetary relief. Having failed to comply
with those requirements, Securiforce could not invoke the
Claims Court’s jurisdiction over its affirmative termina-
tion-for-convenience claim.
Even if Securiforce’s claim were properly character-
ized as nonmonetary, the Claims Court could not properly
exercise jurisdiction over an affirmative declaratory-
judgment claim that the government breached the con-
tract by terminating for convenience. While declaratory
judgments are not precluded from the Claims Court’s
CDA jurisdiction, it is not always appropriate for the
Claims Court to consider them. See Alliant, 178 F.3d at
1271. Indeed, the Claims Court has “discretion to grant
declaratory relief only in limited circumstances” during
contract performance, including when there is “a funda-
mental question of contract interpretation or a special
need for early resolution of a legal issue.” Id.; see also
Tiger Nat. Gas, Inc. v. United States, 61 Fed. Cl. 287, 292
(2004) (“The Federal Circuit added that the legislative
history of the 1992 amendments to the Tucker Act did not
justify precluding a contractor from seeking a declaratory
judgment for an ongoing performance issue.”). In those
narrow circumstances, the court “is free to consider the
appropriateness of declaratory relief, including whether
the claim involves a live dispute between the parties,
whether a declaration will resolve that dispute, and
whether the legal remedies available to the parties would
SECURIFORCE INTERNATIONAL v. UNITED STATES 9
be adequate to protect the parties’ interests.” Alliant, 178
F.3d at 1271.
This case epitomizes a circumstance where “the legal
remedies . . . would be adequate to protect [Securiforce’s]
interests.” Id. Unlike prior cases where we have deter-
mined that the Claims Court had jurisdiction over re-
quests for declaratory judgments, see, e.g., Todd Constr.,
656 F.3d at 1308-11; Alliant, 178 F.3d at 1271-72, Securi-
force seeks a declaration that the government materially
breached the contract, J.A. 134, 139. However, “damages
are always the default remedy for breach of contract.”
United States v. Winstar Corp., 518 U.S. 839, 885 (1996)
(plurality op.). A contractor’s request for a declaratory
judgment that the government materially breached a
contract by terminating for convenience thus would
violate “the traditional rule that courts will not grant
equitable relief when money damages are adequate.”
Alliant, 178 F.3d at 1271.
Therefore, we conclude that the Claims Court erred in
adjudicating Securiforce’s convenience-termination claim.
B
Although we find the Claims Court lacked jurisdiction
over the declaratory-judgment claim concerning the
termination for convenience, the question remains wheth-
er it could review that termination as a defense to the
termination for default. In this respect, the Claims Court
held that the termination was improper but that the
improper convenience termination provided no defense to
the default termination. Securiforce I, 125 Fed. Cl. at
781-88. Securiforce contends that the improper conven-
ience termination was a prior material breach, excusing
Securiforce’s later failure to perform. See, e.g., Laguna
Constr. Co. v. Carter, 828 F.3d 1364, 1369 (Fed. Cir. 2016)
(describing the common-law defense of prior material
breach). The government argues that this defense (like
the affirmative declaratory-judgment claim) could not be
10 SECURIFORCE INTERNATIONAL v. UNITED STATES
asserted in the Claims Court without first being present-
ed to the CO for a final decision. For support, the gov-
ernment relies on our prior cases Maropakis, 609 F.3d
1323, and Raytheon Co. v. United States, 747 F.3d 1341
(Fed. Cir. 2014).
In Maropakis, the contractor claimed that its contract
should have been modified by extending certain deadlines
and that this constituted an affirmative defense to the
government’s liquidated-damages claim. 609 F.3d at
1327-32. We held that the CDA’s jurisdictional prerequi-
site—i.e., that the parties first present their claims to a
CO for a final decision—applied to the contractor’s af-
firmative defense. Id. at 1329-32. “Thus, we h[e]ld that a
contractor seeking an adjustment of contract terms must
meet the jurisdictional requirements and procedural
prerequisites of the CDA, whether asserting the claim
against the government as an affirmative claim or as a
defense to a government action.” Id. at 1331. Similarly,
in Raytheon, the government claimed an equitable ad-
justment as a defense to a contractor’s monetary claim.
See 747 F.3d at 1353-55. We reiterated that the presenta-
tion prerequisite “applies even when a claim is asserted
as a defense.” Id. at 1354. Raytheon did not hold or
suggest that the presentation requirement applies to all
defenses, and in Laguna, decided after Maropakis and
Raytheon, we explained that the rule articulated in those
cases only applies when the defenses “seek the payment of
money or the adjustment or interpretation of contract
terms.” 828 F.3d at 1368. A broader rule, the Laguna
court explained, “would unnecessarily expand the defini-
tion of a ‘claim’ and could improperly bar . . . jurisdiction
where the government raises any affirmative defense.”
828 F.3d at 1368. Accordingly, Laguna found jurisdiction
over an affirmative defense of fraud even though it had
not been presented to a CO. Id. at 1368-69.
Under Laguna, if a party raises an affirmative de-
fense under the contract as written—for example, com-
SECURIFORCE INTERNATIONAL v. UNITED STATES 11
mon-law defenses of fraud or prior material breach—it
need not first be presented to the CO for a final decision,
since a defense is not a claim for money, and the CO has
no necessary role in assessing the defense. In contrast,
under Maropakis and Raytheon, to the extent the affirma-
tive defense seeks a change in the terms of the contract—
for example, an extension of time or an equitable adjust-
ment—it must be presented to the CO, since evaluation of
the action by the CO is a necessary predicate to a judicial
decision.
In this case, Securiforce asserts a common-law af-
firmative defense of prior material breach under the
contract as written. It neither seeks the payment of
money, nor is a decision by the CO a necessary prerequi-
site. Securiforce need not, therefore, have presented that
defense to the CO in order to later assert it in the Claims
Court. Indeed, in Malone v. United States, 849 F.2d 1441,
1445-46 (Fed. Cir.), modified on other grounds, 857 F.2d
787 (Fed. Cir. 1988), we assumed that a defense of prior
material breach did not need to be presented to the CO.
II
Having concluded that the Claims Court had jurisdic-
tion over Securiforce’s prior material breach defenses,
including the improper termination for convenience
defense, we consider whether these alleged prior material
breaches provide a defense to the default termination
such that the default termination was improper. Aside
from these alleged prior breaches, Securiforce does not
challenge on appeal the Claims Court’s determination
that it failed to perform and to “provide adequate assur-
ances of future performance.” Securiforce I, 125 Fed. Cl.
at 790.
The government concedes that the Claims Court had
jurisdiction to review the termination for default even
though there was no government monetary claim. We
have long held that a termination for default is a govern-
12 SECURIFORCE INTERNATIONAL v. UNITED STATES
ment claim not subject to CO presentment under the
CDA. See Alliant, 178 F.3d at 1268; Malone, 849 F.2d at
1443.
A
We first address whether the government breached
the contract by partially terminating it for convenience.
For contracts for the sale of commercial items, the FAR
provides: “The Government reserves the right to termi-
nate this contract, or any part thereof, for its sole conven-
ience.” FAR 52.212-4(l). This clause and its language
were incorporated into the Securiforce contract. J.A. 743,
791. The regulations also describe the CO’s authority to
exercise this clause: “The contracting officer shall termi-
nate contracts, whether for default or convenience, only
when it is in the Government’s interest.” FAR 49.101(b).
We review terminations for convenience for “bad faith
or clear abuse of discretion.” T & M Distribs., Inc. v.
United States, 185 F.3d 1279, 1283 (Fed. Cir. 1999).
Securiforce did not allege bad faith on the part of the
government, and the Claims Court could discern none
from the evidence. See Securiforce I, 125 Fed. Cl. at 784-
85. On appeal, Securiforce presses only its allegations
that the convenience termination was an abuse of discre-
tion.
Because the testimony revealed that the CO did not
herself make the decision to terminate the contract for
convenience, the Claims Court determined that the CO
“abdicated her duty to exercise her own independent
business judgment” and, therefore, “the partial termina-
tion for convenience was an improper abuse of discretion.”
Securiforce I, 125 Fed. Cl. at 787. The cases on which the
Claims Court relied to render this conclusion are distin-
guishable in that each involved contractual language that
entitled the contractor to the resolution of factual disputes
by a particular official. In New York Shipbuilding Corp.
v. United States, 385 F.2d 427 (Ct. Cl. 1967), the Court of
SECURIFORCE INTERNATIONAL v. UNITED STATES 13
Claims determined that where a contract specified that
factual disputes “shall be decided by the Nuclear Projects
Officer of the Maritime Administration,” id. at 429, the
contractor was entitled to a resolution by that particular
officer, id. at 433-35. “The contractor, in particular,
bargained for the Nuclear Projects Officer as the first
tribunal to determine controversies,” but a different
official rendered the final decision, contrary to the con-
tract’s terms. Id. at 434. In Pacific Architects & Engi-
neers Inc. v. United States, 491 F.2d 734, 744 (Ct. Cl.
1974) (per curiam), the contract similarly provided for the
resolution of factual disputes “by the Contracting Officer.”
The CO in that case had reached his decision after accept-
ing the advice of legal counsel. Id. at 745. The Court of
Claims construed the contract’s provision to require that
the CO make the ultimate determination but noted that
“there was no implied prohibition against [the CO’s] first
obtaining or even agreeing with the views of others.” Id.
at 744.
Securiforce’s contract required only that “[t]he Gov-
ernment” make the termination decision. Our cases
interpreting similarly worded clauses in the default
context do not require a decision by a particular official
but only a reasonable conclusion that there was no rea-
sonable likelihood the contractor would perform within
the time remaining. Empire Energy Mgmt. Sys., Inc. v.
Roche, 362 F.3d 1343, 1345 n.2, 1357 (Fed. Cir. 2004);
McDonnell Douglas Corp. v. United States, 323 F.3d 1006,
1014, 1016 (Fed. Cir. 2003). We conclude that the Claims
Court erred in holding that the decision to terminate for
convenience was invalid because it was not reached
independently by the CO.
Securiforce argues in the alternative that the termi-
nation for convenience was an abuse of discretion by the
government. We find no abuse of discretion.
14 SECURIFORCE INTERNATIONAL v. UNITED STATES
The TAA permits the acquisition of certain supplies
only from a list of designated countries but allows the
waiver of this restriction when in the national interest.
See 19 U.S.C. § 2512(b)(2); FAR 225.403(c)(ii). Such a
waiver must generally be obtained from the United States
Trade Representative (“USTR”). See, e.g., 19 U.S.C.
§ 2512(b)(1); Exec. Order No. 12,260, § 1-201, 46 Fed. Reg.
1653, 1653 (Dec. 31, 1980). But where the purchase is for
“fuel for use by U.S. forces overseas,” the Department of
Defense (“Defense”) may issue a national-interest waiver
on its own. FAR 225.403(c)(ii)(B). Securiforce planned to
source its fuel from Kuwait, which is not a designated
country for TAA purposes. See, e.g., FAR 52.225-5.
The contract was awarded to Securiforce on Septem-
ber 7, 2011. The government was aware at that time that
it would need a national-interest waiver for Securiforce
under the TAA. At the time the contract was awarded,
DLA believed it was within the authority of Defense to
execute such a waiver given the presence of U.S. forces at
the sites in Iraq.
In the day following the award, counsel for DLA dis-
covered that because the sites awarded to Securiforce
were staffed exclusively with Department of State
(“State”) personnel, Defense lacked the authority to issue
the waiver for those sites, which would instead need to be
obtained from the USTR. While the government was
determining how to proceed, Securiforce countersigned
the contract on September 9. Between September 9 and
12, additional research revealed that Defense personnel
would be present at six of the eight sites, and as a result,
Defense could and ultimately did waive the TAA for those
six sites. 1
1 Securiforce points to the testimony of two wit-
nesses suggesting that there were Defense personnel at
SECURIFORCE INTERNATIONAL v. UNITED STATES 15
At this point, two sites required a USTR waiver. Ul-
timately, the government concluded that a USTR waiver
could take four to six weeks and that obtaining such a
waiver could cause significant delay to fuel deliveries in
the war zone. The government decided that it was in its
interest to terminate the contract with respect to those
two sites, which it did by issuing unilateral Modification
P00001. It was entirely reasonable—and no abuse of
discretion—for the government to decide that this ap-
proach was in its best interests.
Securiforce argues that the government was under an
obligation to seek the USTR waiver as part of its “duty to
facilitate Securiforce’s performance,” Appellant Reply Br.
29, citing our decision in Rockies Express Pipeline LLC v.
Salazar, 730 F.3d 1330 (Fed. Cir. 2013). In Rockies, we
determined that the government breached a contract by
not seeking to deviate from certain provisions in the
FAR—as it had promised in the contract to do—yet con-
tinuing to demand performance by the contractor. Id. at
1334-35, 1338-39. The government in that case did not
terminate for convenience, and we did not decide whether
that would have been appropriate. In particular, Rockies
did not speak to whether the government could invoke
termination for convenience in order to avoid the very
kind of dispute raised by the parties in that case. Here,
we hold that the government was entitled to terminate
the contract for convenience in light of both the contract’s
the other two sites and that the Defense waiver was
therefore effective as to those sites, as well. The Claims
Court credited other witnesses’ testimony to the contrary,
Securiforce I, 125 Fed. Cl. at 756, and given this conflict-
ing testimony, the Claims Court’s factual finding was not
clearly erroneous, e.g., Anderson v. City of Bessemer City,
470 U.S. 564, 575 (1985).
16 SECURIFORCE INTERNATIONAL v. UNITED STATES
conflict with the TAA and the possibility that seeking a
waiver would cause unacceptable delay.
Securiforce also disputes the timing of the govern-
ment’s decision, pointing to testimony that suggests the
government decided to terminate the contract before it
was even executed. Securiforce contends that this consti-
tutes a breach under Torncello v. United States, 681 F.2d
756 (Ct. Cl. 1982) (en banc) (plurality op.). As interpreted
by the later decisions of this court, Torncello “stands for
the unremarkable proposition that when the government
contracts with a party knowing full well that it will not
honor the contract, it cannot avoid a breach claim by
adverting to the convenience termination clause.” Sals-
bury Indus. v. United States, 905 F.2d 1518, 1521 (Fed.
Cir. 1990).
After reviewing the trial evidence, the Claims Court
concluded that “although the record indicates that DLA
Energy was aware of the TAA waiver issue with regard to
the two [State] sites by September 8, 2011, it is also clear
that defendant had not reached a conclusion on how it
would resolve the issue before both parties executed the
contract on September 9, 2011.” Securiforce I, 125 Fed.
Cl. at 787 n.9; accord id. at 756. The Claims Court there-
fore determined that there had been no Torncello breach.
Id. at 787 n.9. Although Securiforce has pointed to con-
flicting evidence on this point, the Claims Court’s factual
finding was not clearly erroneous. E.g., Anderson, 470
U.S. at 575. We conclude that the government did not
breach the contract by terminating for convenience. We
need not reach the question whether a breach, had it
occurred, would have excused Securiforce’s default.
B
Securiforce also contends that the government’s fail-
ure to provide security escorts for the fuel deliveries was a
prior material breach. Since virtually the moment the
contract was signed, the parties disputed what, if any,
SECURIFORCE INTERNATIONAL v. UNITED STATES 17
security the government was required to provide. On
October 13, 2011, the parties executed the bilateral Modi-
fication P00002 (“Mod. 2”). Mod. 2 added language to the
contract requiring the government to provide security
escorts to each of the six remaining sites. This provision
expressly stated that it would expire and that “U.S.
Government escorts will no longer be provided after
December 31, 2011 for all line items in the contract.” J.A.
1086.
Securiforce contends that the government then
breached Mod. 2 when on October 24, 2011, the supervi-
sory CO sent an email to Securiforce, informing it that
“[m]ilitary provided security . . . w[ould] no longer be
provided” to four of the six remaining sites and that “DLA
Energy [wa]s working towards a solution to line Securi-
force with a [State] task order for security but this has not
been finalized as of the writing of this email.” J.A. 1228.
“More to come,” the email concluded. Id.
Securiforce contends that this email was an anticipa-
tory repudiation of the government’s obligations under
Mod. 2. Anticipatory repudiation requires
reasonable grounds [to] support the obligee’s be-
lief that the obligor will breach the contract. In
that setting, the obligee “may demand adequate
assurance of due performance” and if the obligor
does not give such assurances, the obligee may
treat the failure to do so as a repudiation of the
contract.
Danzig v. AEC Corp., 224 F.3d 1333, 1337-38 (Fed. Cir.
2000) (quoting Restatement (Second) of Contracts § 251
(Am. Law Inst. 1981)). The Claims Court concluded that
“the plain text of the e-mail explains that DLA Energy
intended to arrange security escorts for Securiforce.”
Securiforce I, 125 Fed. Cl. at 795. We agree: the govern-
ment’s email was not an indication that it would breach
the terms of Mod. 2. If anything, it was a reassurance
18 SECURIFORCE INTERNATIONAL v. UNITED STATES
that the government was endeavoring to perform. Moreo-
ver, Securiforce’s CEO acknowledged in an email just four
days later that the government already had proposed at
least one alternative approach using a private security
contractor.
With respect to the period following 2011, Securiforce
also asserts anticipatory breach by the government as a
result of the government’s various statements that no
armed security escorts would be provided after 2011.
Securiforce contends that “[o]n its face, Mod 0002 could
not resolve any security issue other than in 2011, which is
all it covered.” Appellant Reply Br. 42. In fact, Mod. 2
(agreed to by both sides) specifically stated that “U.S.
Government escorts will no longer be provided after
December 31, 2011.” J.A. 1086. On its face, then, Mod. 2
made clear that no government escorts would be provided
beyond 2011. While Securiforce contends that the gov-
ernment was obligated to provide private security, no
express provision in the contract required this. We agree,
for the reasons stated by the Claims Court, that with
respect to the contract prior to Mod. 2, “[t]he inferences
which are required in order to conclude that the govern-
ment was obligated to provide security . . . are not sup-
ported in the record.” Securiforce I, 125 Fed Cl. at 795.
The government did not breach the contract by failing to
provide security.
Securiforce also contends that the government’s re-
fusal to allow it to contract for private security constituted
an anticipatory repudiation. Securiforce offered no record
evidence that the government barred it from contracting
for private, unarmed security, and indeed it appears that
Securiforce agreed to proceed with unarmed security. On
October 19, representatives from both parties took part in
a conference call to discuss the security matter. In an
email following that call, a DLA supervisor provided a
summary “to recap the discussions and make sure we are
on the same page going forward.” J.A. 3589. In particu-
SECURIFORCE INTERNATIONAL v. UNITED STATES 19
lar, she noted that “Securiforce agrees to continue per-
formance after December 31, 2011, without government
escorts or armed private security. Securiforce intends to
use unarmed escorts and will be requesting an equitable
price adjustment.” Id. (emphases added). There was no
evidence that anyone from Securiforce ever contested
DLA’s summary of the call. Given this apparent agree-
ment among the parties to proceed with unarmed securi-
ty, we again see no reasonable grounds for Securiforce to
have concluded that the government was repudiating its
contractual obligations.
C
Securiforce alleges a series of other government ac-
tions or omissions, which the Claims Court found did not
constitute a breach of the contract. First, Securiforce
argues that the government breached by failing to assist
in processing security badges for Securiforce’s truck
drivers. The Claims Court determined that the “badging
of drivers . . . was delayed because Securiforce did not
have enough drivers confirmed to operate the contract.”
Securiforce I, 125 Fed. Cl. at 791. The Claims Court did
not clearly err: the evidence at trial suggested that alt-
hough both parties may have contributed, the delay was
proximately caused by a lack of diligence on the part of
Securiforce.
Second, Securiforce contends that the government’s
orders for fuel were impermissible “proof of principle”
orders. In other words, instead of ordering its full re-
quirements for fuel, the government allegedly placed
orders for small quantities to test whether Securiforce
would be capable of performing. The Claims Court found
that “[t]he testimony . . . seems to support that the [proof
of principle] orders were for actual requirements.” Id. at
796. Securiforce does not appear to contest this factual
finding, and this is sufficient to resolve the legal question
of breach. Nothing in the contract required the govern-
20 SECURIFORCE INTERNATIONAL v. UNITED STATES
ment to place orders of any particular frequency or size,
so long as it ordered its requirements.
Third, Securiforce argues that the government im-
permissibly ordered fuel from other vendors for sites
awarded to Securiforce. The Claims Court found that “the
testimony indicates that the government only filled addi-
tional requirements from other sources after Securiforce
clearly had indicated that it could not deliver sooner than
early November 2011 and while the government waited
for Securiforce to be able to perform.” Id. at 797. The
Claims Court’s conclusion was not clearly erroneous.
When Securiforce repeatedly declared that it could not
timely perform, the government was entitled to order fuel
elsewhere to satisfy its time-sensitive needs.
Finally, Securiforce suggests that it was not in default
because the fuel orders placed by the government—first
orally and then in writing—were never entered into the
electronic ordering system. This position is directly
contradicted by the contract’s ordering provision: “The
Contractor’s nonreceipt of a written or electronic confir-
mation of an oral order or oral call against a written or
electronic order does not itself relieve the Contractor from
its obligation to perform . . . .” J.A. 783. Securiforce has
not shown that any action or omission by the government
excused Securiforce’s own failure to perform.
III
We turn lastly to the Claim Court’s denial of Securi-
force’s sanctions motions, which we review for abuse of
discretion. See, e.g., Harris v. United States, 868 F.3d
1376, 1378 (Fed. Cir. 2017) (per curiam); Hendler v.
United States, 952 F.2d 1364, 1380-81 (Fed. Cir. 1991).
Securiforce sought sanctions with respect to several
purported failures by the government to comply with
Securiforce’s discovery requests. First, the government
belatedly identified and turned over documents related to
SECURIFORCE INTERNATIONAL v. UNITED STATES 21
other contracts awarded under the same solicitation as
Securiforce’s. Securiforce II, 127 Fed. Cl. at 396-400. 2
Second, after initially denying that any fuel had been
delivered to the Securiforce sites by entities other than
Securiforce during the duration of the contract, the gov-
ernment through additional investigation discovered that
such deliveries had been made. Securiforce II, 127 Fed.
Cl. at 400-07. Finally, the witness identified by the
government for a Rule 30(b)(6) deposition was not able to
answer all of the questions asked by Securiforce’s counsel,
and the government offered additional witnesses for
deposition, which Securiforce declined. Id. at 407.
The Claims Court denied each sanctions motion under
various subsections of its Rule 37. Each of those subsec-
tions contains exceptions that vest substantial discretion
in the trial judge in determining whether sanctions are
appropriate. See Ct. Fed. Claims R. 37(a)(5)(iii) (allowing
Claims Court to deny sanctions if “other circumstances
make an award of expenses unjust”); id. R. 37(b)(2)(C)
(same); id. R. 37(c)(2)(B) (same if “the admission sought
was of no substantial importance”). As described at
length by the Claims Court, “[d]iscovery in this case was
protracted, contentious, and difficult,” Securiforce II, 127
Fed. Cl. at 400; Securiforce ultimately received the dis-
covery it sought; and it declined additional witnesses
when offered by the government. We see no abuse of
2 Securiforce also appeals the Claims Court’s denial
of its motion to compel discovery of these materials. The
Claims Court determined that these document requests
“were overly broad and not likely to produce evidence
relevant to” Securiforce’s claims. Id. at 399. Because
Securiforce concedes that it “finally got the information it
had originally requested,” Appellant Br. 49, the appeal
from the denial of this motion is moot.
22 SECURIFORCE INTERNATIONAL v. UNITED STATES
discretion in the Claims Court’s determination that
sanctions were not warranted.
CONCLUSION
We vacate the Claims Court’s entry of judgment with
respect to the termination for convenience and remand
with instructions to dismiss that claim for lack of jurisdic-
tion. We affirm the Claims Court’s judgment in all other
respects.
AFFIRMED IN PART AND VACATED AND
REMANDED IN PART
COSTS
Costs to the United States.