                 ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of --                                     )
                                                 )
Capy Machine Shop, Inc.                          )      ASBCA No. 59133
                                                 )
Under Contract No. SPE4A7-13-M-D099              )

APPEARANCE FOR THE APPELLANT:                           Mr. Salvatore Capacchione
                                                         President

APPEARANCES FOR THE GOVERNMENT:                         Daniel K. Poling, Esq.
                                                         DLA Chief Trial Attorney
                                                        Edward R. Murray, Esq.
                                                        Adrienne D. Bolton, Esq.
                                                         Trial Attorneys
                                                         DLA Aviation
                                                         Richmond, VA

      OPINION BY ADMINISTRATIVE JUDGE TUNKS ON THE GOVERNMENTS
                    MOTION FOR SUMMARY JUDGMENT

       This appeal arises from the termination for default of an order to supply parts for
the A-10 aircraft to the Defense Logistics Agency Aviation (DLA Aviation or
government). DLA Aviation moves for summary judgment, alleging that there are no
material facts in dispute and that it is entitled to judgment as a matter of law on the
ground of anticipatory repudiation and appellant's alleged default is unexcused.
Capy Machine Shop, Inc., (Capy or appellant) opposes the motion.

               STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

         1. On 9 July 2013, Mr. John Vlachos, general manager of Capy, accepted Order
No. SPE4A7-13-M-D099 to provide 27 splice fairings to DLA Aviation. The order also
required submission of one first article test for a total contract price of $52,232.85. 1 The
first article delivery date was 6 January 2014. (R4, tab 9 at 1)

      2. The order incorporated FAR 52.249-8, DEFAULT (FIXED-PRICE SUPPLY AND
SERVICE) (APR 1984) by reference which provides, in part, as follows:

                       (a)(l) The Government may, subject to paragraphs
                (c) and (d) of this clause, by written notice of default to the

1
    The order resulted from a Request for Quotations issued by the government on
         3 June 2013 (R4, tabs 3, 4).
              Contractor, terminate this contract in whole or in part if the
              Contractor fails to-

                     (i) Deliver the supplies or to perform the services
              within the time specified in this contract or any extension;



                      (c) Except for defaults of subcontractors at any tier,
              the Contractor shall not be liable for any excess costs if the
              failure to perform the contract arises from causes beyond
              the control and without the fault or negligence of the
              Contractor. Examples of such causes include ( 1) acts of
              God or of the public enemy, (2) acts of the Government in
              either its sovereign or contractual capacity, (3) fires,
              (4) floods, ( 5) epidemics, (6) quarantine restrictions,
              (7) strikes, (8) freight embargoes, and (9) unusually severe
              weather. In each instance the failure to perform must be
              beyond the control and without the fault or negligence of
              the Contractor.

                      ( d) If the failure to perform is caused by the default
              of a subcontractor at any tier, and ifthe cause of the default
              is beyond the control of both the Contractor and
              subcontractor, and without the fault or negligence of either,
              the Contractor shall not be liable for any excess costs for
              failure to perform, unless the subcontracted supplies or
              services were obtainable from other sources in sufficient
              time for the Contractor to meet the required delivery
              schedule.

(R4, tab 1at18of18)

       3. On 7 November 2013, Mr. Vlachos emailed Mr. Donnie W. Graves, the
contracting officer (CO), as follows:

              Please cancel the above contract at no cost to Capy
              Machine.

              Our forming vendor can't locate his tooling[.]

(R4, tab 6)



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       4. On 13 November 2013, CO Graves issued a show cause notice to Capy:

                      Because you have indicated in an e-mail dated
              07 NOV 2013 citing an inability to locate tooling on
              contract SPE4A7-13-M-D099 within the time required by
              its terms and thereby requesting termination for
              convenience, the Government is considering terminating
              this contract under the provisions for default. Pending a
              final decision in this matter, it will be necessary to
              determine whether your failure to perform arose from
              causes beyond your control and without your fault or
              negligence. Accordingly, you are given the opportunity to
              present, in writing, any facts bearing on the question to
              me ... within 10 days after receipt of this notice.



                    If you have any questions, please contact
              Len DuPilka, Contract Administrator ....

(R4, tab 7)

      5. On 26 November 2013, Mr. Vlachos emailed Mr. Len J. DuPilka, the contract
administrator, as follows:

              The cost of new tooling is $26,512.00 total which wasn't
              included on the quote.
              That is the reason for asking to cancel this contract.

(R4, tab 8)

       6. The record contains a quotation from Banner Metalcraft, Inc., dated
23 September 2013, the contract having been awarded on 9 July 2013, which includes a
one-time tooling charge of $26,512.00 (Bd. corr., attach. to notice of appeal).

      7. On 12 December 2013, Ms. Janice Hicks, the terminating contracting officer
(TCO), terminated the contract for default, stating as follows:

              You are hereby notified that contract SPE4A7-13-M-D099
              is terminated for default effective immediately. Your right
              to proceed further with performance of this contract is
              terminated. The termination is based on your failure to
              perform in accordance with the terms and conditions of the


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               contract. The terminated supplies may be procured against
               your account and you will be held liable for excess costs.

(R4, tab 10)

       8. On 9 January 2014, Capy appealed the TCO's final decision to this Board
where it was docketed as ASBCA No. 59133. The following was attached to Capy's
notice of appeal:

               These parts required tooling. When we quoted the
               solicitation the tooling was available to us. After we were
               awarded this order we found out that the tooling could not
               be located. This meant that we would have to create new
               tooling at [a] cost of$26,512.00. This cost was not
               included in our original quote.... We could not afford to
               complete this order so we requested a cancellation with no
               cost to either party.

                                        DECISION

       Summary judgment is properly granted only where the moving party has met its
burden of proving the absence of any genuine issue of material fact and that it is entitled
to judgment as a matter of law. Mingus Constructors, Inc. v. United States, 812 .2d 1387,
1390 (Fed. Cir. 1987). The government bears the burden of proof to justify the default
termination. When the government establishes a prima facie case that the termination
was justified, the burden shifts to the contractor to demonstrate that the default was
excusable. Hanley Industries, Inc., ASBCA No. 56584, 14-1 BCA ii 35,699.

        The government argues that there are no material facts in dispute and that it is
entitled to summary judgment on the ground of anticipatory repudiation. The record
establishes that the first article delivery date was 6 January 2014. By email dated
7 November 2013, Mr. Vlachos, Capy's general manager, requested CO Graves to cancel
the contract at no cost because its forming vendor could not find the necessary tooling.
On 26 November 2013, Mr. Vlachos emailed Mr. DuPilka, the contract administrator,
again requesting that the government cancel the contract on the same grounds.

       The government has not demonstrated that Capy repudiated the contract.
Anticipatory repudiation requires a "positive, definite, unconditional, and unequivocal"
manifestation on the part of the contractor that he will not perform the contract. Cascade
Pacific International v. United States, 773 F.2d 287, 293 (Fed. Cir. 1985). Capy
communicated with the CO twice before the contract was terminated. On 7 November
2013, Capy requested a no cost cancellation, stating that its "forming vendor can't locate
his tooling." On 26 November 2013, Capy advised that the "cost of new tooling is
$26,512.00 total which wasn't included on the quote. That is the reason for asking to

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cancel this contract." These communications do not reflect a positive, definite,
unconditional and unequivocal refusal to perform.

       Accordingly, the government's motion for summary judgment is denied.

       Dated: 22 October 2014




                                                 Administrative Judge
                                                 Armed Services Board
                                                 of Contract Appeals


I concur                                         I concur




&~-~-
MARK N. STEMPLER
Administrative Judge
                                                 RICHARD SHACKLEFORD
                                                 Administrative Judge
Acting Chairman                                  Vice Chairman
Armed Services Board                             Armed Services Board
of Contract Appeals                              of Contract Appeals


     I certify that the foregoing is a true copy of the Opinion and Decision of the
Armed Services Board of Contract Appeals in ASBCA No. 59133, Appeal of Capy
Machine Shop, Inc., rendered in conformance with the Board's Charter.

      Dated:



                                                 JEFFREY D. GARDIN
                                                 Recorder, Armed Services
                                                 Board of Contract Appeals




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