Gregory Timber Resources, Inc. v. The United States

*847BISSELL, Circuit Judge,

dissenting-in-part.

I agree that Gregory Timber cannot maintain its constitutional attack because it elected to challenge the contracting officer’s decision before the Board rather than before the Claims Court. I, however, would reverse the Board on the merits.

The issue before us on the merits is whether the contracting officer (CO) failed to exercise any discretion with respect to a requested extension such that the contract was either deemed terminated for the convenience of the government or ended by the government’s material breach of its duty of good faith and cooperation. The Board in its opinion failed to address this issue. The majority opinion merely dismisses the issue out of hand.

Although the Board made no specific finding on whether it would have been an abuse of discretion for the CO to have granted an extension, it appears to have concluded that it would have been within the CO’s authority to extend.* The government in its brief does not deny that the CO had authority to extend. The government only argues that the extensions were not compelled. It follows that the CO had the discretion to grant or deny the extensions, and was not compelled by law to either grant or deny the requested extensions.

The central issue, accordingly, is whether the CO fairly and reasonably exercised available discretion in denying Gregory Timber’s extension requests and in terminating the contracts for default. Contrary to the majority’s position, the CO’s failure to exercise any discretion was established by the undisputed facts before the Board. Significantly, the government did not argue before this court and the Board did not find that the CO did exercise any legitimate or reasoned discretion in denying Gregory Timber’s extension requests. Only the majority so holds. In my view, the CO committed legal error in failing to recognize his discretionary authority and the Board committed legal error in failing to address and resolve the legal consequences of the CO’s conduct.

Additionally, the Board concluded, and the government in its brief asserts, that Gregory Timber has not proved it was entitled to an extension as a matter of right. The majority opinion also holds that “Gregory Timber has not shown that the contracting officer departed from” the contractual, regulatory and statutory standards governing extensions. At 846. The burden, however, is not on Gregory Timber, but is on the government to prove that the CO acted correctly in refusing the requests for the extensions. Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 763-65 (Fed.Cir.1987) (government bears burden of proof on issue of the correctness of its actions when pursuing damages based upon a defaulted contract). Gregory has not claimed, and need not show for purposes of this appeal, absolute entitlement to an extension. What Gregory Timber has claimed and what the law guarantees is absolute entitlement to an exercise of informed discretion by the CO. “While a contractor is not entitled to have a termination waived, he is entitled to have the contracting officer consider the alternatives to termination.” Mid-South Contractors, Inc., 85-3 ¶ 18, 210, at 91,399 (emphasis in original).

I read the record as demonstrating that the CO gave absolutely no consideration to his authority to extend. Gregory Timber raised this issue before the Board and the Board should have addressed it. The Board did not. When a request is made for an extension that could have been granted, the CO incorrectly believed that he lacked authority to grant an extension, and the grant of an extension would have avoided a subsequent default, the contract must be treated as having been terminated for the convenience of the government. Schlesinger v. United States, 390 F.2d 702, 707-10, 182 Ct.Cl. 571 (1968); John A. Johnson *848Contr. Corp. v. United States, 132 F.Supp. 698, 705-06, 132 Ct.Cl. 645 (1955); Mid-South, 85-3 BCA at 91,399.

The Board stated: "[W]hile the parties could have agreed to extend the present contracts because of a more urgent need to log other timber, the parties did not agree and we, therefore, conclude that such logging does not provide a legal justification to extend the present sales." 87-3 BCA, at 101, 690.