Ballistic Recovery Systems, Inc.
Docket: ASBCA 61333
Decision date: 2018-12-13

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeal of --
Ballistic Recovery Systems, Inc. 
Under Contract No. SPE4A7-16-C-0218 
APPEARANCES FOR THE APPELLANT: 
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APPEARANCES FOR THE GOVERNMENT: 
ASBCA No. 61333 
Mr. Enrique Dillon 
Director/President 
Mr. Todd J. Biederman 
Defense Contracts Manager 
Daniel K. Poling, Esq. 
DLA Chief Trial Attorney 
Edward R. Murray, Esq. 
Trial Attorney 
DLA Aviation 
Richmond, VA 
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, Ballistic Recovery Systems, Inc.'s (BRSI's), supply contract for default. The 
Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109, is applicable. The 
government filed a motion for summary judgment, BRSI submitted an opposition 
document and the government filed a reply. 
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 
1. On March 25, 2016, the parties entered into fixed-price Contract 
No. SPE4A 7-l 6-C-0218 (the contract) for the supply of 1,667 deployment sleeves at a 
total contractual amount of$221,962 (R4, tab 1 at 1).1 
2. The deployment sleeves were an integral part of "the T-11 Personal 
Parachute System, a personal parachute used by the United States Army for mass 
insertion" (gov't mot., Koven decl. ,r 2). The parachute system comprised "the main 
canopy, the deployment sleeve [at issue here], ... a smaller canopy called the drogue 
1 The contract incorporated Solicitation No. SPE4A7-16-R-1504 (R4, tab 5), as well as 
BRSI's bid (R4, tab 1 at 1, tab 7 at 3). 

chute, ... a bridle line that connects the deployment sleeve to the main canopy, ... as well 
as several other components" (id., ,i 3). 
3. According to the sworn declaration of Ms. Jennifer Koven, a textile 
technologist with the Army's Aerial Delivery Engineering Support Team: 
Unlike a freefall parachute, where the parachutist pulls a 
rip cord to initiate the deployment sequence, the T-11 is 
attached to the aircraft by a static line. The parachute thus 
begins to deploy shortly after the parachutist exits the 
aircraft and the static line reaches full tension. The 
deployment sleeve extracts from the deployment bag and 
the drogue chute inflates at the top end of the deployment 
sleeve. The drag created by the drogue chute causes the 
deployment sleeve to elongate, thereby removing the main 
canopy from the deployment sleeve in proper elongated 
fashion. The canopy, which is attached to the deployment 
sleeve by the bridle line, then begins to inflate. Once the 
canopy is approximately one-half to two-thirds inflated, 
the drogue chute loses its air resistance and deflates. The 
deployment sleeve and drogue chute then come to rest on 
the top of the canopy. The T-11 Personnel Parachute 
System is reusable. Thus, after landing and recovery the 
system is inspected and repacked for another use. 
(Gov't mot., Koven decl. ,i 4) (Citations omitted) 
4. The contract incorporated by reference the following, pertinent Federal Acquisition 
Regulation (FAR) clauses: FAR 52.246-2, INSPECTION OF SUPPLIES-FIXED-PRICE 
(AUG 1996); FAR 52.246-16, RESPONSIBILITY FOR SUPPLIES (APR 1984); and FAR 52.249-8, 
DEFAULT(FIXED-PRICE SUPPLY AND SERVICE (APR 1984) (R4, tab 1 at 10, 12). It also 
included FAR 52.209-4, FIRST ARTICLE APPROVAL-GOVERNMENT TESTING (SEP 1989) 
clause, which provided: 
(a) The Contractor shall deliver 2 each=l test unit(s) of 
Lot/Item 1670-01-567-2211 within [85] calendar days 
from the date of this contract to the Government at [The 
US Army Research Development and Engineering Center, 
Natick, Massachusetts (ADEST)] for first article tests. The 
shipping documentation shall contain this contract number 
and the Lot/Item identification. The characteristics that the 
first article must meet and the testing requirements are 
specified elsewhere in this contract. 
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(b) Within 3 5 calendar days after the Government 
receives the first article, the Contracting Officer shall 
notify the Contractor, in writing, of the conditional 
approval, approval, or disapproval of the first article. The 
notice of conditional approval or approval shall not relieve 
the Contractor from complying with all requirements of the 
specifications and all other terms and conditions of this 
contract. A notice of conditional approval shall state any 
further action required of the Contractor. A notice of 
disapproval shall cite reasons for the disapproval. 
(R4, tab 5 at 20) Finally, the contract contained Defense Logistics Acquisition 
Directive (DLAD) clause, 52.209-9018, FIRST ARTICLE-GOVERNMENT 
TEST-ADDITIONAL REQUIREMENTS (AUG 2014), which stated, in pertinent part: 
(Id.) 
(a) For the lots/items identified in this contract as 
requiring Government first article test (FAT) in accordance 
with the clause at Federal Acquisition Regulation (FAR) 
52.209-4, the Contractor shall-
( l) Conform with technical requirements stated and/or 
referenced in the solicitation; including number of units to 
be produced, data required, performance or other 
characteristics that the first articles shall meet, sequence of 
processes, tests to which the first articles shall be 
subjected, and conformance criteria for each requirement 
specified. 
(2) Provide all facilities, equipment and personnel 
required to perform the examination and evaluation of the 
first article units when first article testing will be 
conducted at the Contractor's plant. The Government 
reserves the right to charge the Contractor for any 
additional costs of examination and evaluation caused by 
failure of the Contractor to make available the first article 
units or the required facilities, equipment or personnel, at 
the times specified in the above mentioned notice to the 
Contracting Officer. 
5. The contract required that BRSI submit two deployment sleeves for a first 
article test (FAT). Prior to award, BRSI had requested a FAT waiver based upon its 
earlier contract with the Defense Logistics Agency (DLA) for the same item, Contract 
No. SPE4A7-13-C-0274 (contract 0274). (R4, tab 7 at 22, 24, 32) The waiver request 
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was denied by the government (R4, tab 6). Its rationale was that no inspections had been 
performed on the deployment sleeves for almost two years (R4, tab 8). 
6. On September 21, 2016, BRSI submitted to AD EST two units for FAT (R4, 
tab 16 at 1 ). Ms. Koven of AD EST conducted the FAT and reported the following 
conclusions: 
I found numerous major deficiencies in my review of 
BRS's first article submission. The sleeves included 
improperly formed bartacks and both samples had bridle 
loops longer than dimensional tolerance. There were also 
multiple instances of stitching outside dimension tolerances, 
multiple instances of hook tape and loop tape not fully 
captured by stitching, multiple instances of stow panel not 
captured by stitching, leftover stitching and damaged 
webbing from bartack removal, dimensional 
noncompliances on the stow flap assembly, and multiple 
birdnests (tangled mass of thread resembling a bird's nest), 
knots, stitch loops, and leftover stitches. Any one of these 
nonconformities alone would be sufficient to reject a first 
article, as one major defect, as identified in MIL-STD-849, 
will trigger rejection of a first article. I recommended 
disapproval to DLA for this first article submission. 
We were concerned about the numerous deficiencies 
on the first article samples provided by BRS. Sample 1 
was disassembled during first article testing, but FAT 
Sample 2 was left intact. Accordingly, on October 19, 
2016, we performed a drop test from an aircraft on BRS 
FAT Sample 2. I have attached screen captures from video 
taken during the drop test as Exhibit G. During testing, the 
drogue chute inflated, the deployment sleeve elongated 
normally, and the main canopy separated from the sleeve. 
However, when the bridle line reached full tension, failure 
occurred at the bridle line attachment loop sewn into the 
deployment sleeve. This disconnected the drogue chute 
and the deployment sleeve from the canopy. Without the 
resistance from the drogue chute, the canopy shape became 
distorted, causing it to inflate asymmetrically. At the time 
of attachment loop failure, the bridle line is under tension. 
When the bridle attachment loop failed, this caused the 
bridle line with connector link hardware to recoil toward 
the canopy. In this case, the damage suggests that the 
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bridle line entangled with the cotton webbing sewn around 
the bottom opening of the deployment sleeve, tearing the 
webbing off the sleeve. After this separation, the bridle 
was allowed to whip around throughout the rest of the 
canopy deployment. Fortunately, the bridle line did not 
become entangled with the canopy and the canopy was 
able to correct itself and inflate normally .... 
This drop test demonstrated three significant failure 
scenarios. The first, which is demonstrated by the 
condition of the deployment sleeve, is that the deployment 
sleeve was destroyed and was unsuitable for reuse. As 
mentioned above, these are supposed to be reusable 
sleeves. Second, as demonstrated by the pictures of the 
canopy deploying, the detachment of the bridle line 
releases the tension at the top of the canopy which disrupts 
the air channel and elongation phase of the canopy. 
Therefore the canopy does not fill properly, resulting in a 
slower opening and in an irregular manner. This could 
affect the rate of descent and reduce the time allowed for a 
safe jump. Given that the T-11 parachute is cleared for use 
at altitudes as low as 560 feet, this has potential to create 
significant bodily harm to the parachutist. Finally, the 
worst case scenario would be that the detached bridle line 
becomes entangled around the main canopy and prevents it 
from opening. Although that did not happen here, the 
pictures of the bridle line (with metal hardware) whipping 
around the canopy demonstrate the potential for such a 
failure. This could be catastrophic. 
My analysis of the cause of the failure, which was 
developed with the assistance of my colleagues at AD EST, 
is that the bridle attachment loop tore out of the 
deployment sleeve because it was not fully seated in the 
seam (not fully inserted and/or sewn into the seam) and 
therefore not fully captured by the bartack and 
reinforcement stitching. This was likely also the reason 
why the bridle attachment loops measured longer than 
allowed for the first article samples, i.e., they measured 
long because they were not fully seated in the seam. I 
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recognized a poorly formed bartack as a deficiency in the 
first article sample provided by BRS. 
(Gov't mot., Koven decl. i1i16-9) (Citations omitted) 
7. On October 6, 2016, as a result of Ms. Koven's extensive testing, ADEST 
rejected BRSI's FAT (R4, tab 16). Pursuant to FAR 52.209-4(c), ADEST offered 
BRSI the opportunity to resubmit two FAT samples (R4, tab 17). Accordingly, BRSI 
submitted two revised FAT articles which were received by AD EST on October 26, 
2016 (R4, tabs 18-19). 
8. Ms. Koven tested the resubmitted FAT samples and concluded that they 
were nonconforming as a result of major deficiencies. In her sworn declaration, she 
stated, in pertinent part: 
The FAT resubmission samples once again contained 
numerous major deficiencies. I discovered another bartack 
not fully formed with stitches pulling out, two rows of 
reinforcement stitching where three are required at the point 
where the bridle attachment loop is secured to the 
deployment sleeve, multiple instances of misalignment of 
bartack to flap edge, loop tape not fully captured by 
stitching, multiple instances of improper seam folds, a 
location where the stitching did not extend full length of 
seam, improper tape fold lengths, multiple instances of 
material dimensions out of tolerance, a stow panel not 
stitched in prior to the top flap, holes and other defects in 
the cloth, and knots in the stitching, missing stitching, and 
skipped stitching. Again, any one of these deficiencies on 
its own would be sufficient to disapprove the first article. 
However, given the failure of the bridle attachment loop in 
the test drop, I was particularly concerned about one 
deficiency. Deficiency 23 was a failure to include the 
correct number of rows of reinforcement stitching where the 
drogue loop and bridle attachment loop are sewn to the 
deployment sleeve. The drawing called for three rows of 
reinforcement stitching (3 double rows of stitching around 
the bartack, which is 3 rows above and 3 rows below the 
bartack), in addition to the stitching already present which 
sews the seam along the top edge of the seam, but BRS had 
only used two. This deficiency could lead to the same type 
of failure experienced on the test drop. I accordingly 
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recommended disapproval to DLA for this article 
resubmission. 
(Gov't mot., Koven decl. ,i 11) (Citations omitted) Accordingly, on November 22, 
2016, BRSI's FAT resubmission was rejected (R4, tab 19). 
9. On April 10, 2017, the government issued to BRSI a show cause notice so 
that it could state "any excusable causes of defect, that you believe, caused your firm's 
first article test and textile and material test failures." The government gave BRSI 
10 days to respond to this notice and stated that it was considering terminating the 
contract for default. (R4, tab 26) 
10. In its response to the show cause letter, dated April 14, 2017, BRSI did not 
address in any detail the major deficiencies cited by ADEST in the reports rejecting the 
FAT samples. Instead, it referred to an earlier contract (0274) in which its FAT samples 
for the deployment sleeves had been approved several years earlier and argued that this 
constituted a "production standard" for the instant contract. (R4, tab 27 at 2-4) In 
formulating this argument, BRSI ignored the fact that the CO had earlier denied its FAT 
waiver request based upon its success with the FAT in contract 0274 (SOF ,i 5). Also, 
contrary to BRSI's assertions, the CO had informed it that the FAT approval letter was not 
a "manufacturing standard," and did not constitute authority to deviate from the cont:,;act 
with regard to production items (R4, tab 25 at 11; SOF ,i 4). 
11. On June.23, 2017, the CO issued contract Modification No. P00003, 
terminating the contract for default "as a result of multiple first article test disapprovals 
under the contract which failed to conform to the technical data packages" (R4, tab 4 
at 1-2). 
12. This appeal followed. 
DECISION 
In conjunction with its answer, respondent filed a motion for summary 
judgment supported by a sworn affidavit. BRSI, appearing, pro se, did not file a 
cross-motion. In fact, it did not file an opposition brief, denominated as such. Instead, 
it merely submitted a "Statement of Genuine Issues of Material Fact" which tracked a 
portion of respondent's filing. Respondent subsequently, filed a reply brief, again 
supported by a sworn declaration. 
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 the moving party 
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is entitled to judgment as a matter oflaw. FED. R. CIV. P. 56(a)(c)(l); 2 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 non-moving party to show that there is a genuine 
factual issue for trial. Celotex, 477 U.S. at 322. 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 1390-91; Gerald 
R. Rouillard, IIL d/b/a International Gear Technologies, ASBCA No. 58459, 14-1 BCA 
,i 35,766 at 174,995. 
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 Constr. 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); Rouillard, 
14-1 BCA ,i 35,766 at 174,995. FAT failures with "critical and major defects" that are not 
easily correctable and which the contractor does not attempt to correct constitute a 
reasonable basis for a default termination. American Ballistics Co., ASBCA No. 38578, 
92-3 BCA ,i 25,056 at 124,874. 
Here, the government, through two extensive briefs supported by detailed, 
sworn affidavits, has established a prima facie case demonstrating that the default 
· termination was reasonable and justified. With respect to the first FAT samples, 
Ms. Koven's sworn affidavit describes numerous major deficiencies. In addition, the 
drop test performed by the government "demonstrated three significant failure 
scenarios." (SOF ,i 6) Similarly, as described by Ms. Koven, the "FAT resubmission 
samples once again contained numerous major deficiencies" (SOF ,i 8). Accordingly, 
like the first FAT samples, they were rejected. 
Viewed through the totality of its submissions, appellant has not met its burden of 
production. In its response to the government's show cause notice, BRSI did not 
address in any detail the major deficiencies cited by ADEST in the reports rejecting its 
FAT samples. Instead, it referred to its earlier contract 0274, in which its FAT samples 
for the deployment sleeves had been approved several years earlier. (SOF ,i 10) 
Moreover, in its complaint, appellant admitted that its FAT samples under the instant 
contract "were non-conforming products." In addition, BRSI admits in its complaint 
that it "manufactured deficient items." (Compl. at 1-2) 
2 Board Rule 7(c)(2) provides that the Board looks to Federal Rules of Civil Procedure 56 
for guidance in addressing motions for summary judgment. 
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In addition, in paragraph 17 of the "Statement of Undisputed Facts" which 
accompanied its summary judgment motion, respondent alluded to the major 
deficiencies cited in its reports and concluded that "[a]ny one of these nonconformities 
on its own would be sufficient to constitute a first article failure." In its response, 
BRSI stated "Admit" to this paragraph (app. opp'n at 2). It thus, effectively concedes 
the government's case. 
We have carefully reviewed appellant's other assertions and reject them. 
CONCLUSION 
We grant the summary judgment motion and deny the appeal. 
Dated: December 13, 2018 
I concur 
/kl 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
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MICHAEL T. PAUL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
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. 61333, Appeal of Ballistic 
Recovery Systems, Inc., rendered in conformance with the Board's Charter. 
Dated: 
10 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals