Burden of Proof in a Termination for Default

As stated by the U.S. Court of Claims, and often quoted by the Boards, a default termination is “a drastic sanction which should be imposed (or sustained) only for good grounds and on solid evidence.”  J.D. Hedin Construction Co. v. United States, 408 F.2d 424, 431 (Ct. Cl. 1969).  When a government contractor appeals a default termination, the Government has the burden of proving that its termination was proper.  Lisbon Contractors, Inc. v. United States, 828 F.2d 759, 764-765 (Fed. Cir. 1987).  If the Government presents a prima facie case that the termination was proper, the burden shifts to the government contractor to demonstrate that the default was excusable.  Hanley Industries, Inc., ASBCA No. 56584, 14-1 BCA ¶ 35,699.