Capy Machine Shop, Inc.
Docket: ASBCA 59133
Decision date: 2014-10-22

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of -- ) 
) 
Capy Machine Shop, Inc. ) 
) 
Under Contract No. SPE4A7-13-M-D099 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 59133 
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 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: 
(R4, tab 6) 
Please cancel the above 
contract at no cost to Capy 
Machine. 
Our forming vendor can't locate his tooling[.] 
2 

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-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 .... 
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 $26,512.00 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 
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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(R4, tab 10) 
contract. The terminated supplies may be procured against 
your account and you will be held liable for excess costs. 
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 
4 

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 
&~-~-MARK N. STEMPLER 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
RICHARD SHACKLEFORD 
Administrative Judge 
Vice Chairman 
Armed Services Board 
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: 
5 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals