DayDanyon Corporation
Docket: ASBCA 57611, ASBCA 57681, ASBCA 57717
Decision date: 2014-01-22

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of-- ) 
) 
DayDanyon Corporation ) 
) 
Under Contract No. SPM8ED-09-D-0001 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 57611,57681,57717 
Mr. JosephS. Jankowski 
President 
Daniel K. Poling, Esq. 
DLA Chief Trial Attorney 
Joseph R. Weidenburner, Esq. 
Assistant Counsel 
Kristin K. Bray, Esq. 
Assistant Trial Attorney 
DLA Troop Support 
Philadelphia, P A 
OPINION BY ADMINISTRATIVE JUDGE JAMES 
ON PARTIES' MOTIONS FOR SUMMARY JUDGMENT 
These appeals arise from the DLA Troop Support (DLATS) contracting 
officer's (CO) decisions which relate to DayDanyon Corporation's (DayDanyon) 6 April 
2011, $720,700 claim (ASBCANo. 57611), appellant's claim dated 18 May 2011 
(ASBCA No. 57717), and the government's claim of20 April2011 which terminated the 
contract and its Delivery Order Nos. 0002 and 0003 for default (ASBCA No. 57681). 
The Board has jurisdiction of the appeals under the Contract Disputes Act of 197 8 
(CDA), 41 U.S.C. §§ 7101-7109. On 1 November 2013, the government moved for 
summary judgment on the three appeals. On 12 November 2013, appellant moved for 
summary judgment on ASBCA Nos. 57611 and 57717. On 27 November 2013, the 
government responded to appellant's 
motion. Appellant opposed respondent's motion on 
6 December 20 13. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTIONS 
1. On 23 April 2009, the Defense Supply Center Philadelphia, whose name was 
changed to DLA Troop Support, awarded Contract No. SPM8ED-09-D-0001 (the 
contract) to DayDanyon for Collapsible Joint Modular Intermodal Containers (JMIC) 
(R4, tab 4 at 1-2 of21). 

2. The contract had four contract line item numbers (CLINs). CLINs 0001-0003 
each stated an estimated quantity of 500 JMICs. CLIN 0001 JMICs were to be painted 
green, CLIN 0002 tan, and CLIN 0003 not painted. CLIN 9906 was for first article test. 
(R4, tab 4 at 1-3 of21, 12 of21) 
3. The contract stated: 
This is a[ n] Indefinite Quantity Contract. Orders may be 
issued on this contract for a period of TWO YEARS. 
First Article Test quantities of 2 each are due to the 
government test facility ... on or before 150 days after date of 
award .... 
After First Article Test approval, the required delivery for 
production quantities under this contract is 120 days after the 
date of the resulting delivery orders. 
The Guaranteed Minimum is a total of 500 containers, 
whether placed for a single CLIN, or combination of CLINS 
that collectively total 500 containers. The guaranteed 
minimum is 500 containers per year. Since this is a two year 
base contract the minimum quantity is multiplied by 2. 
(R4, tab 4 at 2 of21) 
4. The contract incorporated, inter alia, the FAR 52.209-4, FIRST ARTICLE 
APPROVAL-GOVERNMENT TESTING (SEP 1989); FAR 52.216-18, ORDERING (OCT 1995); 
FAR 52.216-19, ORDER LIMITATIONS (OCT 1995); FAR 52.216-22, INDEFINITE QUANTITY 
(OCT 1995); FAR 52.249-2, TERMINATION FOR CONVENIENCE OF THE GOVERNMENT 
(FIXED-PRICE) (MAY 2004); and FAR 52.249-8, DEFAULT (FIXED-PRICE SUPPLY AND 
SERVICE)(APR 1984) clauses (R4, tab 4 at 16-17 of21, 21 of21). 
5. As relevant to these disputes: (a) the FAR 52.216-18, ORDERING (OCT 1995) 
clause provided in pertinent part: 
(a) Any supplies and services to be furnished under this 
contract shall be ordered by issuance of delivery orders or 
task orders by the individuals or activities designated in the 
Schedule. Such orders may be issued -
2 

FROM: DATE OF CONTRACT AWARD 
THROUGH: TWO (2) YEARS 
(b) All delivery orders or task orders are subject to the 
terms and conditions of this contract. In the event of conflict 
between a delivery order or task order and this contract, the 
contract shall control. 
and (b) the FAR 52.216-22, INDEFINITE QUANTITY (OCT 1995) clause provided: 
(a) This is an indefinite-quantity contract for the 
supplies or services specified, and effective for the period 
stated, in the Schedule. The quantities of supplies and 
services specified in the Schedule are estimates only and are 
not purchased by this contract. 
(b) Delivery or performance shall be made only as 
authorized by orders issued in accordance with the Ordering 
clause. The Contractor shall furnish to the Government, 
when and if ordered, the supplies or services specified in the 
Schedule up to and including the quantity designated in the 
Schedule as the "maximum." The Government shall order at 
least the quantity of supplies or services designated in the 
Schedule as the "minimum." 
(c) Except for any limitations on quantities in the 
Order Limitations clause or in the Schedule, there is no limit 
on the 
number of orders that may be issued. The Government 
may issue orders requiring delivery to multiple destinations or 
performance at multiple locations. 
(d) Any order issued during the effective period of 
this contract and not completed within that period shall be 
completed by the Contractor within the time specified in the 
order. The contract shall govern the Contractor's and 
Government's rights and obligations with respect to that order 
to the same extent as if the order were completed during the 
contract's effective period; provided, that the Contractor shall 
not be required to make any deliveries under this contract 
after Two Years[.] 
3 

(R4, tab 4 at 16-17 of21) The record contains no evidence that DayDanyon sought from 
the CO clarification of the term "Two Years" in the above-quoted contract provisions. 
6. On 4 June 2009, DLATS issued a Stop-Work Order on the contract. Bilateral 
Contract Modification No. POOOOI, executed on 2 July 2009, authorized resumption of 
contract work. (R4, tab 11 at 1-2 of 4) 
7. On 16 December 2009, DayDanyon shipped two JMICs for government first 
article testing (R4, tab 34 at 1), with respect to which the test center found 27 major and 
15 minor defects as reported on 13 January 2010 (R4, tab 38 at 1-8). 
8. On 3 March 2010, DayDanyon submitted two JMICs, with respect to which the 
test center found 2 major and 5 minor defects as reported on 30 March 2010 (R4, tab 43 
at 1-9). 
9. DLA TS' 6 April 2010 letter to DayDanyon noted conditional acceptance of the 
first article, provided that DayDanyon submit a corrective action plan addressing such 
deficiencies, which plan DayDanyon submitted on or about 7 April 2010 and DLATS 
approved on or about 9 April 2010 (R4, tabs 46, 4 7, 49). DLATS authorized DayDanyon 
to begin production on 29 April2010 (R4, tab 51). 
10. On 3 May 2010, DLATS issued Delivery Order No. 0002 (DO 2) for 100 units 
NSN- 5795 (tan), and Delivery Order No. 0003 (DO 3) for 400 units NSN- 5311 
(unpainted); these two DOs were ordered under CLIN "000 1" (NSN - 5802, green) 
notwithstanding the color discrepancy. Both DOs had a delivery date of29 March 2010, 
later corrected 
to 31 August 2010, 120 days from receipt of order. (R4, tabs 53-56) 
11. On 5 August 2010, the CO issued unilateral DO 2 Modification No. 000203 
extending the delivery date for 100 tan painted JMICs from 31 August 2010 to 15 October 
2010, and unilateral DO 3 Modification 
No. 000302 extending the delivery date for 
300 unpainted JMICs from 31 August 2010 to 30 September 2010 and for the 100 balance 
of unpainted JMICs from 31 August 2010 to 15 October 2010 (R4, tabs 73-74). 
12. Effective 23 November 2010, bilateral DO 2 Modification No. 000204 
extended the delivery date for 1 00 tan JMI Cs to 15 March 20 11, and bilateral DO 3 
Modification No. 000303 extended the delivery date for 400 unpainted JMICs to 8 March 
2011 (R4, tabs 84-86). These modifications clarified the foregoing discrepancies 
between CLIN and NSN numbers (see SOF ~ 1 0) on the DOs and provided: 
INCONSIDERATION OF THIS REVISED DELIVERY 
SCHEDULE, CONTRACTOR HEREBY 
UNCONDITIONALLY RELEASES AND W AlVES ALL 
CLAIMS AGAINST THE GOVERNMENT BY REASON 
4 

OF DELAYS ATTRIBUTABLE TO EXCUSABLE 
CAUSES WHICH HAVE OR MAY HAVE OCCURRED IN 
THIS CONTRACT AND FOR ALL OTHER CAUSES, 
CONDITIONS AND HAPPENINGS WHICH HAVE 
OCCURRED UNDER THIS CONTRACT TO DATE. 
(R4, tab 84 at 2) 
13. DayDanyon stated in response to government interrogatories that due to 
exceptional weather events on 15-16 December 2010, 25-26 December 2010 and 
9-10 January 2011, "DayDanyon was closed and directly lost five days of production." 
We take judicial notice that DayDanyon's plant is located in Hart County, Georgia. The 
accompanying National Weather Service reports showed neither the historic normal 
weather nor any unusually severe weather for Hart County on such dates. DayDanyon 
also stated that-
[D]elays in delivering of JMICS were partially caused by the 
inability of two suppliers/subcontractors to guarantee delivery 
dates of certain automated production set-ups by mid-January 
2011 for early February 2011 delivery. This resulted in 
DayDanyon having to develop alternative methods and 
processes utilizing components it had available in-house or 
were readily available off the shelf, over the course of late 
January and through February 20 11. 
These actions/inactions occurred [during] the latter part of 
December, 2010 until mid-January, 2011. 
(App. supp. R4, tab 46 at 5-21, 23, 25) 
14. After several DCMA visits to DayDanyon's facility and DayDanyon reports 
of deliveries of contract materials, on 22 February 2011, the CO sent DayDanyon a cure 
notice stating that contract performance was endangered by lack of progress, noting the 
impending DO 2 and DO 3 delivery dates and giving DayDanyon 10 days to cure such 
conditions (R4, tab 106 at 2-3). 
15. On 2 March 2011, DayDanyon told the CO that, "we can begin shipments 
soon" (R4, tab 110), "a major portion of the performance has been completed, and the 
remainder will be finished shortly" (R4, tab 111 ), and on 4 March 2011 stated that "[ t ]he 
first three shipments of JMICs, comprised of 100 - 200 units per shipment, have been 
5 

loaded into the DCMA SIR System. These will occur beginning later this month." (R4, 
tab 112) 
16. From 11 March 2011 to 15 April 2011, DayDanyon and DLATS had several 
email exchanges regarding: (a) CO's status of progress inquiries and DayDanyon replies 
that JMICs components were arriving and side and access panel sheets were being 
assembled on 16 March 2011 (R4, tabs 117, 123-24; app. supp. R4, tabs 9-12); 
(b) DayDanyon's order of"[seven] custom designed ... process stations for high 
production of JMICs" (R4, tab 114) of which two stations were received and operating on 
about 22-23 March 2011 (R4, tabs 119-20); (c) DCMA's 28 March 2011 email to 
DayDanyon inquiring whether DLA had indicated if it would extend the contract 
performance period, and advising of a new QAR, Mr. Robert Strain (app. supp. R4, tab 
10) and (d) DayDanyon's JMIC shipment projections for 30 March 2011, 14 April2011 
and 22 April2011 {app. supp. R4, tab 16). DayDanyon did not receive all the JMIC parts 
before the 8 and 15 March 2011 delivery dates (R4, tabs 114-15). DayDanyon began 
JMIC assembly on 22 March 2011, but did not tender any JMICs for inspection by 
DCMA, and delivered no JMICs to DLATS (R4, tabs 120, 125 at 5). 
17. DayDanyon sent to the CO a $720,700 claim, 
dated and certified on 6 April 
2011, alleging that DLATS had failed to place delivery orders for an additional 
500 JMICs by 24 December 2010, which the contract required (R4, tab 121 at 2-3). 
18. CO Joseph J. McHenry's 8 April2011 letter responding to DayDanyon's 
6 April 2011 claim stated that "the two year base period for [the contract] expires on 
April 23rd, 2011. Therefore, your claim is premature. If you wish, you may file your 
claim after the base period has expired." (R4, tab 122 at 2) On 27 April2011, 
DayDanyon appealed from that letter on the basis of a deemed denial, which the Board 
docketed as ASBCA No. 57611. 
19. On 20 April2011, CO McHenry issued: (a) unilateral contract Modification 
No. P0004 which terminated the contract for default and advised DayDanyon of its 
appeal rights (R4, tab 125); and (b) unilateral Modification Nos. 000205 and 000304 
terminating DOs 2 and 3 for default (R4, tab 126} On 11 July 2011, DayDanyon 
appealed from these decisions, which was docketed as ASBCA No. 57681. 
20. DayDanyon sent CO McHenry a $720,700 claim, dated and certified on 
18 May 2011, which aside from that date, was materially identical with its 6 April 2011 
claim (R4, tab 127). 
21. CO Mark L. Scott's 15 July 2011 decision denied DayDanyon's 18 May 2011 
claim in its entirety and advised DayDanyon of its appeal rights (R4, tab 128). 
DayDanyon appealed from that decision on 29 July 2011, which was docketed as 
ASBCA No. 57717. 
6 

DECISION 
Preliminarily, the government has not questioned the sufficiency under the CDA 
ofDayDanyon's 6 April2011 certified claim or the validity of the Board's CDA 
jurisdiction over ASBCA No. 57611 on a deemed denial basis, nor does the Board. 
DayDanyon's 6 April2011 and 18 May 2011 claims are materially identical and differ 
only as to their dates (SOF ~ 20). Accordingly, we dismiss ASBCA No. 57717 as 
duplicative of ASBCA No. 57611. 
A tribunal shall grant summary judgment if the movant shows that there is no 
genuine issue as to any material fact and the movant is entitled to judgment as a matter of 
law. FED. R. CIV. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). 
Summary judgment properly may 
be granted to a party when the non-moving party fails to 
offer evidence on an element essential to its case and on which it bears the burden of proof 
at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In considering a motion for 
summary judgment, the evidence of the non-moving party is to be believed, and all 
justifiable inferences are to be drawn in its favor. Liberty Lobby, 477 U.S. at 247. The 
government moves for summary judgment on the default termination, ASBCA No. 57681. 
The parties cross-move for summary judgment on DayDanyon's breach claim in ASBCA 
No. 57611. 
These appeals present the following issues: (1) in ASBCA No. 57681, whether 
DLATS properly terminated the contract for default due to DayDanyon's 
failures to 
remedy the conditions endangering contract performance and to deliver 500 JMICs 
pursuant to the last extended delivery dates; (2) in ASBCA No. 57611, whether DLATS 
breached the contract by not ordering the 1000 guaranteed minimum JMICs (SOF ~ 3) by 
24 December 2010, as DayDanyon claims. 
I. Default 
Our SOF extracted the material facts proposed in the government's motion and 
added some facts proposed by appellant in SOF ~~ 5, 13, 15 and 16. Neither party has 
raised any genuine issue of material fact with respect to such facts (see gov't resp. at 2-6; 
app. opp'n at 2-10). 
The government has the burden of proof that its default termination was justified. 
See Nuclear Research Corp. v. United States, 814 F.2d 647, 650 (Fed. Cir. 1987). A 
contractor's failure to make timely delivery of agreed-upon goods establishes a prima 
facie case of default. !d. The burden then shifts to the contractor to show that the failure 
to deliver the contract goods was excusable. See DCX, Inc. v. Perry, 79 F .3d 132, 134 
(Fed. Cir. 1996), cert. denied, 519 U.S. 992 (1996). 
7 

The last extended delivery dates were 8 March 2011 for 400 unpainted JMICs 
under DO 3 and 15 March 2011 for 100 tan JMICs under DO 2 (SOF ~ 12). By 
15 March 2011 DayDanyon had delivered no JMICs to DLATS (SOF ~ 16). Thus, the 
government prima facie has established that DayDanyon was in default for failure to 
deliver the supplies by those March 2011 dates under paragraph (a)(l)(i) of the contract's 
FAR 52.249-8, Default clause. 
DayDanyon argues that DLATS was required to extend the delivery dates by five 
days due to "exceptional weather events" on 15-16 December 2010, 25-26 December 2010 
and 9-10 January 2011 (app. opp'n at 11; SOF ~ 13). The record contains evidence of 
neither the historic normal weather nor any unusually severe weather for Hart County on 
such dates (SOF ~ 13). Thus, the record contains no proof of "unusually severe weather" 
under paragraph (c)(9) of the contract's FAR 52.249-8, Default clause. See All-State 
Construction, Inc., ASBCA No. 50513 eta!., 04-2 BCA ~ 32,778 at 162,082-84 (number of 
days of excusable weather delay determined by comparing experienced rain and snowfall 
to "historic normal" rain and snowfalls). Even if, arguendo, Hart County experienced 
''unusually severe weather" on those dates, that five-day delay would not excuse 
DayDanyon's failure to deliver 
timely. 
It remains to analyze DayDanyon's argument that by delaying its termination to 
20 April 2011 with "full 
knowledge that the Contractor was continuing production and 
progress," the government waived the contractor's default for failure to deliver 
400 unpainted JMICs by 8 March 2011 and 100 tan JMICs by 15 March 2011 
(app. opp'n at 11). To prove waiver of default, a contractor must show: (1) failure to 
terminate within a reasonable time after default under circumstances indicating 
forbearance; and (2) reliance by the contractor on the failure to terminate and continued 
performance by him under the contract, with the Government's knowledge and implied 
or express consent. DeVito v. United States, 413 F.2d 1147, 1153-54 (Ct. Cl. 1969) 
(CO waived delivery date when he knew that the contractor, during the month after the 
due date passed, made four deliveries, and the government accepted 420 of 1,000 units, 
which activities constituted 
substantial reliance on the CO's failure to terminate). 
We focus on whether, after the D02 and D03 delivery dates had passed, the CO's 
and DCMA's inquiries about DayDanyon's production status, DCMA's identification of 
a new QAR at DayDanyon 1 and DayDanyon's projection of JMIC deliveries on 
1 DayDanyon asserts that DCMA's Mr. Oppedisano's reports and photos on the status of 
DayDanyon's JMIC materials and assembly showed "bad faith" because they 
conflict with Mr. Jankowski's views on that status (app. reply br. at 7-10). Those 
views do not meet the "clear and convincing proof' of a specific intent to injure 
the contractor criterion to overcome the strong presumption of good faith actions 
of a government official. See Am-Pro Protective Agency, Inc. v. United States, 
281 F.3d 1234, 1239-40 (Fed. Cir. 2002). 
8 

30 March, 14 April and 22 Apri12011 (SOF ~ 16), amounted to the CO's implied consent 
to its continued performance after default. Board decisions do not provide clear guidance 
with respect to our fact pattern. E.g., DCX-CHOL Enterprises, Inc., ASBCA No. 54707, 
08-2 BCA ~ 33,389 at 167,730 (after contractor defaulted, even though the government 
knew that the contractor was continuing performance and accepted 32 of278 delinquent 
items, the 84 to 176-day period from default to notice of termination was not 
unreasonable; appeal denied); cf ACR Machine, Inc., ASBCA No. 54734, 06-2 BCA 
~ 33,383 at 165,504 (p.ost-default, a government industrial specialist, unbeknownst to the 
CO, asked the contractor for a new realistic delivery schedule; government motion for 
summary judgment denied). Mindful that the evidence of the non-moving party on the 
waiver issue (here, DayDanyon) is to be believed, and all justifiable inferences are to be 
drawn in its favor, Liberty Lobby, 477 U.S. at 247, we hold that the present appeal record 
is insufficiently developed to grant respondent's motion on ASBCA No. 57681. 
II. Breach 
As stated above, neither party has raised any issue of genuine material fact. We 
tum to the issue of whether DayDanyon or the government is entitled as a matter of law 
to judgment on its breach of contract claim. DayDanyon claims that DLATS failed to 
place delivery orders by 24 December 2010 for 500 additional JMICs (SOF ~ 17; app. 
mot. at 12-13) and thus breached the contract. 
The FAR 52.216-18 Ordering and 52.216-22 Indefinite Quantity clauses have 
different purposes. The FAR 52.216-18 clause defines the period for ordering supplies as 
the "DATE OF CONTRACT AWARD ... THROUGH: TWO (2) YEARS" (SOF ~ 5(a)). 
FAR 52.216-22(d) provides: 
(SOF ~ 5(b)) 
(d) Any order issued during the effective period of this 
contract and not completed within that period shall be 
completed by the Contractor within the time specified in the 
order. The contract shall govern the Contractor's and 
Government's rights and obligations with respect to that order 
to the same extent as if the order were completed during the 
contract's effective period; provided, that the Contractor shall 
not be required to make any deliveries under this contract 
after Two Years. [Bold added] 
DayDanyon interprets the FAR 52.216-18 period for issuing orders under this 
contract "FROM: DATE OF CONTRACT A WARD THROUGH: TWO (2) YEARS" 
(SOF ~ 5(a)) as the same "Two Years" specified in the proviso ofFAR 52.216-22(d), and 
concludes that DLATS had to order an additional 500 
JMICs by "24 December 201 0" 
9 

(contract award date plus 2 years less 120 days for delivery) (app. mot. at 12-13) in order 
for the government to obtain delivery within 2 years of contract award, or by 23 April 
2011. DayDanyon's interpretation reduces the effective period for ordering from the 
specified "TWO (2) YEARS" to 20 months, and renders meaningless or superfluous the 
provisions ofF AR 52.216-22( d), first, that orders issued within the effective period of the 
contract but not completed within the effective period of ordering are to be completed 
within the time specified by the order and second, the contract governs the parties' rights 
and duties under orders not so completed to the same extent as if the orders were 
completed during the contract's effective period. DayDanyon's interpretation violates 
the contract interpretation rules to harmonize and give reasonable meaning to all parts of 
a contract and to render no provision useless, meaningless, inoperative or superfluous. 
See Precision Dynamics, Inc., ASBCA No. 50519,05-2 BCA ~ 33,071 at 163,922. We 
hold that DayDanyon's interpretation is unreasonable. We therefore must deny 
appellant's motion for summary judgment. Since the government did not breach the 
contract by failing to order an additional 500 units by 24 December 2010,2 we grant the 
government's motion for summary judgment. 
If we were to assume, arguendo, that the term "two years" appearing in the FAR 
52.216-18 Ordering clause and in~ (d) ofthe FAR 52.216-22 Indefinite Quantity clause 
was inconsistent or ambiguous, such ambiguity was patent. DayDanyon did not seek 
clarification before contract award (SOF ~ 5), so such arguable ambiguity is resolved 
against the contractor. See Triax Pacific, Inc. v. West, 130 F.3d 1469, 1475 (Fed. Cir. 
1997). 
CONCLUSION 
We grant the government's motion for summary judgment in ASBCA No. 57611, 
deny appellant's motion for summary judgment in ASBCA No. 57611 and deny that 
appeal. We deny government's motion for summary judgment in ASBCA No. 57681. 
We dismiss ASBCA No. 57717 as duplicative. 
Dated: 22 January 2014 
of Contract Appeals 
(Signatures continued) 
2 Once the contract was terminated by the government, the government had no further 
duty to order additional units. 
10 

I concur 
~~ -MARK N. STEMPLER 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
I concur 
Administrative Judge 
Acting Vice Chairman 
Armed Services Board 
of Contract Appeals 
I certify that the foregoing is a true copy of the Opinion and Decision ofthe 
Armed Services Board of Contract Appeals in ASBCA Nos. 57611, 57681, 57717, 
Appeals ofDayDanyon Corporation, rendered in conformance with the Board's Charter. 
Dated: 
11 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals