Gerald R. Rouillard, III, d/b/a International Gear Technologies
Docket: ASBCA 58458
Decision date: 2014-10-07

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of--
Gerald R. Rouillard, III, d/b/a 
International Gear Technologies 
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Under Contract No. SPM7MC-11-M-1722 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 58458 
Steven J. Boretos, Esq. 
Everett, WA 
Daniel K. Poling, Esq. 
DLA Chief Trial Attorney 
Matthew 0. Geary, Esq. 
Colleen T. Loughran, Esq. 
Trial Attorneys 
DLA Land and Maritime 
Columbus, OH 
OPINION BY ADMINISTRATIVE JUDGE PAUL ON THE GOVERNMENT'S 
MOTION FOR SUMMARY JUDGMENT 
This is a timely appeal of a contracting officer's (CO' s) final decision 
terminating appellant Gerald R. Rouillard, III, d/b/a International Gear Technologies' 
(IGT's) supply contract for default. The Contract Disputes Act (CDA), 41 U.S.C. 
§§ 7101-7109, is applicable. The government has filed a motion for summary 
judgment. IGT opposes the government's motion; it has not filed a cross-motion. We 
grant the motion. 
STATEMENT OF FACTS (SOF) FOR PURPOSES OF THE MOTION 
1. On 19 July 2010, the Defense Supply Center, Columbus, Ohio (Maritime 
Supply Chain) (DSSC) issued request for quotations (RFQ) No. SPM7MC- l O-Q-17 41 
for the purchase of 311 spur gears, National Stock Number (NSN) 3020-00-888-0130 
(R4, tab 99 at 5-6). The RFQ included a procurement history for this NSN, dating back 
to 10 July 2007. As awarded, unit costs for the earlier contracts ranged from $106.00 to 
1 The government filed separate motions for summary judgment in ASBCA 
Nos. 58458 and 58459; however; appellant's opposition brief and the 
government's reply brief dealt jointly with the two appeals. Because the facts 
of each appeal differ, the Board is issuing separate decisions. 

$210.95. (Id. at 2) The RFQ also contained a first article test (FAT) requirement which 
consisted of one additional unit (id. at 7). 
2. The government's estimated unit price was $127.86. It received quotations 
with unit prices ranging from $98.47 to $348.00. IGT quoted a unit price of$112.25. 
(R4, tab 100)2 
3. On 30 December 2010, DSSC awarded Contract No. SPM7MC-11-M-1722 
to appellant for the supply of 311 spur gears at a unit price of$112.25. Within 45 days 
IGT was also required to submit a First Article (FA) at a unit price of$1,500. The total 
fixed-price contractual amount was $36,409.75. (R4, tab 1 at 1, 4-6) As awarded, the 
FA was to be delivered on 13 February 2011, and the remaining spur gears were to be 
delivered 255 days after date of the order or by 11 September 2011 (id. at 1, 6). 
4. The contract contained FAR 52.209-4, FIRST ARTICLE APPROVAL­
GOVERNMENT TESTING (SEP 1989). Also included in the contract by reference were FAR 
52.233-1, DISPUTES (JUL 2002); and FAR 52.249-8, DEFAULT (FIXED-PRICE SUPPLY AND 
SERVICE (APR 1984 ). (R4, tab 1 at 9-10) 
5. IGT did not deliver the FAT unit by 13 February 2011 (R4, tab 6 at 2). On 
22 June 2011, IGT informed the government that "we had a failure on our gear tester" 
(id. at 1). As of20 October 2011, IGT still had not delivered the FA. On that date, it 
informed the government that "[ q]uality found an issue with the root diameter of the 
gear teeth on the first article part, we need to either request a waiver, or finish another 
first article from a second lot we had started months ago." (R4, tab 26 at 4) 
6. On 3 January 2012, the CO issued bilateral Modification No. POOOOl to the 
contract. It established a new FA delivery date of 17 February 2012 and extended the 
delivery date for 311 spur gears from 11 September 2011 to 26 July 2012. (R4, tab 37 at 
1-2) The modification also provided ~hat failure of the FAT would result in termination 
of the contract for default (id. at 2). Finally, the parties agreed that IGT would pay 
$1,500 for the modification (id.). 
7. IGT did not deliver the FA by 17 February 2012 (R4, tab 44 at 2). On 1 March 
2012 appellant advised the CO that the FAT unit had been completed (id.). On 1 April 
2012, IGT stated in an email to the CO: "When I get to my office tomorrow I will send 
you the FAT tracking info" (R4, tab 45). On 3 April 2012, appellant forwarded the 
promised information to the CO (R4, tab 46 at 1-2). On 11April2012, the CO wrote to 
appellant, in part, as follows: "I just checked tracking for this item. UPS shows this as 
not being shipped? I need to know what is going on." (R4, tab 48 at 1) On 12 April 
2 In the "ABSTRACT OF QUOTES," appellant's bid was coded as "CAGE" 
"5HFP7" (R4, tab 100). 
2 

2012, IGT responded to the CO, stating: "I will be back in the office tomorrow to resolve 
FAT shipment, yes, we do have a large lot of parts waiting to ship once FAT is 
approved" (R4, tab 50). As of 19 April 2012, the FAT unit had still not been completed 
(R4, tab 53 at 1 ); and as of 3 May 2012, it had not been shipped (R4, tab 56 at 3 ). 
8. On 1June2012, the CO issued Modi'fication No. P00002 to amend a drawing 
number (R4, tab 68). On 8 June 2012, the FAT unit was shipped for testing by the 
government (R4, tab 77); and, on 14 June 2012, it was conditionally approved (R4, tab 78 
at 1). On 20 June 2012, the CO forwarded a FAT conditional approval letter to IGT, 
listing six discrepancies. He also requested that appellant forward a revised date for the 
production lot by 25 June 2012. (R4, tab 81 at 1, 3) 
9. IGT did not comply with this request; and, on 26 June 2012, the CO again 
requested the delivery schedule by close of business on that day (R4, tab 83 at 1). On 
that same date, appellant responded that it would forward "a complete schedule" by 
29 June 2012. He also stated: "I can tell you that we have separated 50 from a 160 piece 
lot and are expediting the 50 pieces for shipment asap." (R4, tab 84) On 28 June 2012, 
IGT advised the CO that it would ship 50 units "around July 20th" (R4, tab 88 at 1). On 
9 July 2012, the CO, once again, requested a complete delivery schedule (R4, tab 89 
at 1). 
10. On 11 July 2012, Mr. Gerry Rouillard, III, IGT's president, forwarded a 
lengthy letter to the CO in which it alleged that, as result of various increased costs, its 
actual unit cost was $276.79, as opposed to the contractual price of $112.25 (SOF ~ 2). It 
also contended that, as part of its bid, it had relied on Mr. Rouillard's father for "a large 
number of volunteer hours." Unfortunately, as result of a heart condition, the elder 
Mr. Rouillard had been unable to work on the contract. Finally, IGT alleged that there 
had been a mutual mistake when it formulated its bid. Alleging that it had paid $1,680 
for inspection of a single unit, appellant described the $1,500 payment to the government 
contained in Modification No. POOOOl as an inspection fee, and concluded that it had 
grossly underestimated the actual fee of producing the spur gears. (SOF ~ 6; R4, tab 90 
at 1-3) 
11. On 16 July 2012, the CO forwarded the following response to Mr. Rouillard: 
In response to your 7/11/12 
request for a price 
increase on contract SPM7MC1lMl722 for NSN 
number 3020-00-888-0130, your request is hereby denied. 
This is a firm fixed price contract. Your proposal in 
response to RFQ SPM7MlOQ0302 offered a set unit price. 
The subject 
contract was awarded accordingly. You are 
obligated to perform to the terms of the contract. 
3 

Within 5 calendar days from the date of this notice, you are 
requested to advise the undersigned in writing whether you 
will continue to perform the subject contract in accordance 
with the existing terms and conditions. Failure to respond 
by [sic] will lead to termination for default proceedings. 
The Government is not invoking its rights under FAR 
52.249-8 - - Default (Fixed-Price Supply and Service), at 
this time. Please be advised, 'however, that notice of 
intention not to perform, or failure to perform, under the 
provisions of the contract may result in the subject contract 
being terminated for default, subject to the notice 
provisions of the default clause. 
Any assistance rendered to the contractor on this contract, 
or acceptance by the Government of delinquent goods or 
services hereunder, will be solely for the purpose of 
mitigating damages, and is not to be construed as an 
intention on the part ofthe Government to condone any 
delinquencies or as a waiver of any rights the Government 
may have under the above contract. 
(R4, tab 91) On 20 July 2012, IGT replied to the CO's letter. It stated that it would 
"continue to perform the subject contract in accordance 
with the existing terms and 
conditions." But appellant again sought a price increase based upon "clear and 
convincing evidence that a mutual mistake was made." (R4, tab 92 at 1-2) 
12. IGT did not deliver the production lot of spur gears by the modified delivery 
date of 26 July 2012 (SOF if 6; R4, tab 96). Accordingly, on 7 August 2012, the CO 
forwarded by email a show cause letter to appellant in which he stated: 
You are hereby notified that the Government considers 
your Email dated 17 July, 2012 requesting an increase in 
unit price as unacceptable. 
Since you have failed to perform 
within the time required 
by the terms of your contract, the Government is 
considering terminating the 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 fault or 
negligence on your part. Accordingly, you are given the 
4 

(R4, tab 93) 
opportunity to present, in writing, any facts bearing on the 
question to the undersigned, within 10 days (August 17, 
2012) after receipt of this notice. Your failure to present 
any explanations within this time may be considered as an 
admission that none exist. Your attention is invited to the 
respective rights of the Contractor and the Government and 
the liabilities that may be invoked if a decision is made to 
terminate for default. 
If it is your int~ntion to perform under this contract, you 
should within 10 days (Aµ gust 17, 2012) of your receipt of 
this letter, propose a new and reasonable delivery date by 
which the required supplies will be delivered together with 
monetary consideration for the additional performance 
time needed. Your proposed new delivery schedule will be 
taken into consideration by the Contracting Officer in 
deciding whether to terminate the contract. 
The Government does not waive any rights it has by virtue 
of this letter and specifically reserves any and all rights it 
has relative to untimely delivery. Should your firm fail to 
propose a new delivery date, that failure will be considered 
as repudiation by your firm of its obligation to perform 
under this contract and the contract may be terminated for 
default. 
Any assistance given to you on this contract or any 
acceptance by the Government of delinquent goods or 
services will be solely foi,; the purpose of mitigating 
damages, and it is not the intention of the Government to 
condone any delinquency or to waive any rights the 
Government has under the contract. 
13. IGT responded to the CO's show cause letter on 11August2012. It 
proposed a two-stage delivery schedule with units being delivered on 30 November 
2012 and 18 January 2013. Jt also, once again, referred to the illness of the elder 
Mr. Rouillard and contended that there had been a mutual mistake (R4, tab 94). On 
12 September 2012, the CO forwarded a letter to IGT in which he terminated the 
contract for default (R4, tab 96). This timely appeal followed (R4, tab 98). 
5 

DECISION 
A grant of summary judgment is appropriate when a review of the record 
demonstrates that there is no genuine dispute as to any material fact and that the 
moving party is entitled to judgment as a matter oflaw. FED. R. CIV. P. 56(a), (c)(l); 
Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390 (Fed. Cir. 1987). The 
moving party has the burden of showing the absence of a genuine dispute of material 
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party makes 
the requisite showing, then the burden shifts to the nonmoving party to show that there 
is a genuine factual issue for trial. Id. Moreover, the party opposing summary 
judgment-here the appellant-"must show an evidentiary conflict on the record; mere 
denials or conclusory statements are not sufficient." Mingus, 812 F .2d at 13 90-91. 
We are also guided by the settled law governing terminations for default. Such 
a termination is "a drastic sanction which should be imposed ... only for good grounds 
and on solid evidence." J.D. Hedin Construction Co. v. United States, 408 F.2d 424, 
431 (Ct. Cl. 1969) 
(citation omitted). Accordingly, the government bears the burden 
of proving that the termination was reasonable and justified. If the government 
establishes a prima facie case in this regard, the burden of production-or going 
forward-shifts to the contractor. Lisbon Contractors, Inc. v. United States, 828 F.2d 
759, 765 (Fed. Cir. 1987); New Era Contract Sales, Inc., ASBCA No. 56661 et al., 
11-1BCA~34,738 at 171,022. 
Initially, we simply note that appellant did not file a "Statement of Genuine 
Issues of Material Fact" which would have aided us in succinctly identifying any 
genuine factual disputes. Instead, it opposed respondent's motion in a diffuse manner 
with few or no citations to the evidentiary record. What is undisputed is that appellant 
failed to deliver any production lots on or before the revised delivery date of 26 July 
2012 (SOF ~ 12). Therefore, the government has established aprimafacie case, and 
the burden of going forward shifts to appellant to demonstrate that its failure to deliver 
was excusable. 
Appellant relies heavily on the argument that the purported illness of its 
president's father, Mr. Gerald Rouillard, Jr., severely impacted its ability to perform. 
Although appellant provides little or no evidence to support its underlying contentions, 
we will accept for purposes of this motion that Mr. Rouillard suffered a serious illness 
at the time of contractual performance. As a legal matter, this Board has promulgated 
a host of cases which hold that, absent an understanding by both parties that a key 
person would be responsible for performance, his or her illness or death would not 
excuse a default. See, e.g., MW. Microwave Corp., ASBCA No. 45084, 93-3 BCA 
~ 26,027 at 129,377-78; Jonatech, Inc., ASBCA No. 46088, 94-3 BCA ~ 27,248 at 
135,774; Brill Brothers, Inc., ASBCA No. 42573, 94-1BCA~26,352 at 131,056; 
M&T Construction Co., ASBCA No. 42750, 93-1BCA~25,223 at 125,636. No such 
6 

understanding has been shown here. Thus, appellant's arguments in this regard are 
unavailing. 
Appellant also contends that it should be granted relief from the default 
termination because of an alleged mistake in bid. During contractual performance, 
IGT contended, without any support in ~he ~videntiary record, that its inspection cost 
for a single unit was $1,680. It also argued that the $1,500 fee stated in a Modification 
No. POOOOl was the government's inspection cost, and reasoned from this premise that 
its bid of $112.25 grossly underestimated the cost of producing the spur gears (SOF 
~ 10). Appellant concludes that there was a mutual mistake in bid. Appellant's 
argument is illogical and does not advance its case. We find no evidence of a mistake 
in bid, unilateral or bilateral. 3 
Finally, appellant makes the contention for the first time in its opposition brief 
that it made a unilateral mistake in bid when it relied upon the procurement history for 
the spur gears which was contained in the solicitation. This argument is difficult to 
comprehend. The procurement history cited by appellant merely sets forth unit costs 
for earlier contracts dating back to 10 July 2007 and ranging between $106.00 and 
$210.95 (SOF ~ 1). Appellant's bid of $112.25 per unit fit well within this range. It 
also closely tracked the government's estimate of $127.86 (SOF ~ 2). 
In order to establish a defense against a default termination based upon a 
unilateral mistake in bid, appellant must demonstrate by clear and convincing evidence 
that: .· 1 ' 
(1) [A] mistake in fact occurred prior to contract award; 
(2) the mistake was a clear-cut, clerical or mathematical 
error or a misreading of the specifications and not a 
judgmental error; (3) prior to award the Government knew, 
or should have known, that a mistake had been made and, 
therefore, should have requested bid verification; ( 4) the 
Government did not request bid verification or its request 
for bid verification was inadequate; and (5) proof of the 
intended bid is established. 
McClure Electrical Constructors, Inc. v. Dalton, 132 F .3d 709, 711 (Fed. Cir. 1997) 
(citing Solar Foam Insulation, ASBCA No. 46921, 94-2 BCA ~ 26,901. Even though 
appellant's contention that it somehow relied on the procurement history in 
formulating a mistaken bid is not supported by record evidence, we shall assume, for 
purposes of the motion that, "a mistake in fact occurred prior to contract award." 
3 Appellant did not include this argument in its opposition brief and may have 
abandoned it (app. br.,passim). 
7 

Nevertheless, appellant has not satisfied, by clear and convincing evidence, the other 
four prongs of the test. For example, IGT has not demonstrated or alleged either that it 
made a clear-cut, clerical or mathematical error or misread the specifications. In fact, 
its bid was in line both with the procurement history and the government's estimate. 
In addition, the CO could not have been placed on notice by appellant's bid that there 
had been a mistake: there was simply no disparity between it, the procurement history, 
and the government's estimate. Under these circumstances, IGT's contentions must 
fail. 
CONCLUSION 
We find no genuine disputes as to material facts and that the government is 
entitled to judgment as a matter oflaw. The government's motion for summary 
judgment is granted. The appeal is denied. 
Dated: 7 October 2014 
I concur 
~%ti74 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
8 
MICHAEL T. PAUL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
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. 58458, Appeal of Gerald 
R. Rouillard, III, d/b/a International Gear Technologies, rendered in conformance with 
the Board's Charter. 
Dated: 
9 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals