Capy Machine Shop, Inc.
Docket: ASBCA 59085
Decision date: 2014-10-22

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
Capy Machine Shop, Inc. ) 
) 
Under Contract No. SPE4A6-13-M-S227 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 59085 
Mr. Salvatore Capacchione 
President 
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 GOVERNMENT'S 
MOTION FOR SUMMARY JUDGMENT 
The government moves for summary judgment, alleging that there are no 
material facts in dispute and appellant's alleged default is unexcused. As a result, the 
government asserts that it is entitled to summary judgment as a matter of law. 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
1. On 25 September 2013, Mr. John Vlachos, general manager of Capy, 
accepted Order No. SPE4A6-13-M-S227 in the amount of $37,431.60. 1 The order 
required Capy to supply 27 splice fairings and a first article to the Defense Logistics 
Agency Aviation (DLA Aviation), a field activity of the Defense Logistics Agency. 
(R4, tab 1 at l(A), 2of24) The delivery date for the production quantity was 
18 February 2015 (R4, tab 2 at 2of2). 2 
1 The order resulted from a Request for Quotations issued by the government on 
16 August 2013 (R4, tabs 3, 4). 
2 The order required the delivery of a First Article Unit, 30 days after the production 
quantity. This obvious mistake is not alleged to be relevant to this appeal. 

2. The order incorporated FAR 52.249-8, DEFAULT (FIXED-PRICE SUPPLY AND 
SERVICE) (APR 1984) by reference (R4, tab 1 at 23of24). The clause 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 
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, 
tqe 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 if the 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. 
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. 
2 

Our forming vendor can't locate his tooling[.] 
(R4, tab 6) 
4. On 13 November 2013, CO Graves issued a show cause notice to Capy: 
(R4, tab 7) 
Because you have indicated in an e-mail dated 
07 NOV 2013 citing an inability to locate tooling on 
contract SPE4A7-13-M-S227 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 .... 
5. On 26 November 2013, Mr. Vlachos emailed Mr. Len J. DuPilka, the 
contract administrator, as follows: 
(R4, tab 8) 
The cost of new tooling is $19,647.00 total which wasn't 
included on the quote. 
That is the reason for asking to cancel this contract. 
6. The record contains a quotation from Banner Metalcraft, Inc., dated 
18 October 2013,3 which includes a one-time tooling charge of $19,647.00 
(compl., attach.). 
7. On 12 December 2013, Ms. Janice Hicks, the terminating contracting officer 
(TCO), terminated the contract for default, stating as follows: 
3 The contract having been awarded on 25 September 2013. 
3 

(R4, tab 10) 
You are hereby notified that contract SPE4A6-13-M-S227 
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 
contract. The terminated supplies may be procured against 
your account and you will be held liable for excess costs. 
8. On 19 December 2013, Capy appealed the TCO's final decision to this 
Board where it was docketed as ASBCA No. 59085. 
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 proven that it 
is entitled to judgment as a matter oflaw. Mingus Constructors, Inc. v. United States, 
812 F.2d 1387, 1390 (Fed. Cir. 1987). In this appeal, the government bears the burden 
of proof to justify the default termination. If 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 if 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. 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 its tooling. 
On 26 November 2013, Mr. Vlachos emailed Mr. DuPilka, the contract administrator, 
again requesting that the government cancel the contract. Capy stated that the reason 
for its request was that the cost of new tooling was $19,647 and that it could not afford 
to perform the contract. 
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 $19,647.00 total which wasn't included on the quote. That is the 
4 

reason for asking to 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 
I concur 
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ELIZ~ETH A. TUNKS 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
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. 59085, Appeal of Capy 
Machine Shop, Inc., rendered in conformance with the Board's Charter. 
Dated: 
5 
JEFFREYD. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals