DENIED:  January 20, 2022
CBCA 7142
ORSA TECHNOLOGIES, LLC,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
John M. Manfredonia of Manfredonia Law Offices, LLC, Cresskill, NJ, counsel for
Appellant.
David G. Fagan, Office of General Counsel, Department of Veterans Affairs,
Portland, OR, counsel for Respondent.
Before Board Judges LESTER, SULLIVAN, and O’ROURKE.
LESTER, Board Judge.
This appeal is the second of two that appellant, ORSA Technologies, LLC (Orsa),
filed with the Board involving contracts with the Department of Veterans Affairs (VA) for
the delivery of nitrile gloves during the COVID-19 pandemic.  The contracts were awarded
by different VA offices, but the terms of both contracts were fairly similar.  In both cases,
which the Board docketed as CBCA 7141 and 7142, the VA contracting officers terminated
Orsa’s contracts for cause after Orsa did not deliver any gloves by the contractual deadlines. 
In both cases, Orsa challenges the terminations and blames marketplace forces caused by the
COVID-19 pandemic for its inability to acquire the necessary nitrile gloves, even though
both contracts required Orsa to have had the gloves “on hand” when it entered the contracts.


CBCA 7142 2
By decision dated January 18, 2022, we denied Orsa’s challenge to the termination
for cause in the first appeal, CBCA 7141, finding the VA’s decision not to allow Orsa to
provide a substitute glove for the brand required by the contract and to terminate the contract
following a failure to deliver justifiable.  ORSA Technologies, LLC v. Department of
Veterans Affairs, CBCA 7141 (Jan. 18, 2022).  This case differs from CBCA 7141 in that,
here, the VA agreed to accept substitute gloves, twice agreed to extend Orsa’s delivery
deadline, and twice agreed to price increases.  Nevertheless, Orsa ultimately never delivered
any gloves.  Orsa’s arguments that the Board should view Orsa’s failure to deliver after the
VA agreed to the last delivery deadline extension as excusable are unfounded.  Orsa was well
aware of what it now calls a “perfect storm” of events that created glove supply difficulties
when it agreed to that last revised deadline.  We grant the VA’s motion for summary
judgment and deny Orsa’s challenge to the termination for cause in this appeal.
Statement of Undisputed Facts
The Request for Quotes
On or about October 30, 2020, the VA’s VISN17 Network Contracting Office in San
Antonio, Texas, issued a request for quotation (RFQ) for a simplified acquisition of as many
as fifty million “nitrile gloves per attached salient characteristics and price/delivery
schedule,” to be delivered to the Defense Logistics Agency (DLA) in Marengo, Indiana. 
Appeal File, Exhibit 1 at VA000004, VA000009.1  That RFQ was, in many ways, very
similar (although not an exact match) to the RFQ at issue in CBCA 7141 except that, where
the RFQ in CBCA 7141 anticipated delivery of gloves within forty-five days after award, the
RFQ in this case anticipated delivery within thirty days.  See id. at VA000004 (“Delivery
shall be 30 calendar days or sooner, after receipt of order.”).  Like the RFQ at issue in CBCA
7141, the RFQ here included the “Commercial Items (Oct 2018)” clause at Federal
Acquisition Regulation (FAR) 52.212-4 (48 CFR 52.212-4 (2020)), id. at VA000012-17, and
provided that the VA was not making “a request for manufacturing but [instead was making]
a request for quantity on hand to be delivered within 30 calendar Days from order.”  Id. at
VA000007; see id. at VA000061 (defining “on hand” as “in-stock and available for
immediate delivery”).  The RFQ further provided that “[c]ontracts that are awarded based
on submitted quotes will have 30 calendar days to deliver the awarded quantities, or the
contract will be terminated for cause and negative performance will be reflected within the
Contractor Performance Assessment Reporting System (CPARS) and the Federal Awardee
Performance and Integrity Information System (FAPIIS).”  Id. at VA000007.  In addition,
the RFQ indicated that, if the supplier was not the original equipment manufacturer (OEM)
1 Unless otherwise noted, all exhibits referenced in this decision are found in the
appeal file.

CBCA 7142 3
of the nitrile gloves, “the Authorized Supplier must provide an Authorized Distributor Letter
from the OEM that is still in effect,” that the “Authorized Supplier shall maintain its
Authorized Distributor status of all manufacturers and distributors of supplies throughout the
life of this agreement,” and that “[f]ailure to do so will render the quote submitted as non-
responsive and not eligible for award.”  Id.
The nitrile gloves to be offered in the quote had to be a brand name or equal to
specific OEM numbers associated with “Bosma Enterprises, Nitrile Textured Exam Glove.” 
Exhibit 1 at VA000002, VA000007.  Any gloves proposed would have to pass a technical
capability review:
Technical Capability:  VA evaluation team will review submitted [Personal
Protective Equipment (PPE)] Source Questionnaire Nitrile Gloves and offered
gloves must also meet or exceed the salient characteristics of the technical
specifications found with Section B.2 Statement of Work.
Id. at VA000041.  Nevertheless, the offeror did not have to propose to deliver all fifty million
gloves requested in the RFQ – it could “submit a quote for all or some of the line items” and
in quantities less or more than identified in each line item of the RFQ.  Id. at VA000009.
The RFQ also included the clause at VA Acquisition Regulation (VAAR) 852.212-72
(48 CFR 852.212-72) titled “Gray Market and Counterfeit Items (Mar 2020),” which
provided that “[t]his procurement is for new [OEM] items only” and that “[n]o gray market
items shall be provided,” with “gray market items” being defined as “OEM goods
intentionally or unintentionally sold outside an authorized sales territory or sold by non-
authorized dealers in an authorized sales territory.”  Exhibit 1 at VA000020.  The clause also
required that the vendor “be an OEM, authorized dealer, authorized distributor or authorized
reseller for the proposed equipment/system, verified by an authorization letter or other
documents from the OEM.”  Id.
Orsa’s Quotes and the Contract Award
On November 6, 2020, Orsa submitted a quotation in response to the RFQ offering
to supply the VA with 10,000,000 boxes of Supérieur Brand Nitrile Textured Exam Gloves,
with each box containing 100 gloves, at a price of $9 per box and a total cost of $90,000,000. 
Exhibit 4 at VA000131, VA000174.  In response to the PPE Source Questionnaire that
accompanied the RFQ, Orsa represented that the quantity of nitrile gloves that it had “on
hand (in-stock and available for immediate delivery)” was “10 million within 30 days of
award”; that it was an “Authorized Dealer and Reseller” of the gloves; that none of its
proposed products “are gray market or counterfeit”; and that the gloves would be shipped
“factory direct” to the required VA location.  Id. at VA000161.

CBCA 7142 4
It is unclear from the record exactly what happened after Orsa submitted that quote. 
For reasons unexplained in the documents in the record, there was no immediate contract
award to Orsa in response to its November 6, 2020, quote.  Although it seems clear that the
October 30, 2020, RFQ provided the terms of the contract at issue in this appeal, the next
activity identified in the record is an email dated December 22, 2020, from Orsa’s Chief
Executive Officer (CEO) to the VA contract specialist for this contract in which Orsa’s CEO
represented that Orsa had “87 million gloves ready to deliver within 14 days” at a cost of
“$13.00 a box.”  Exhibit 9 at VA000270.  Subsequently, on December 30, 2021, the VA
contract specialist sent Orsa’s CEO an email indicating that “[a]ttached is the resultant
delivery order from your quote dated on 12/28/2020.”  Exhibit 10 at VA000312.  Orsa’s
December 28, 2020, quote is not in the record, but the record contains an executed copy of
purchase order no. 701-C-10042 under contract no. 36-C-25721-P-0283 (the contract), dated
December 30, 2020, which called for Orsa to deliver 538,390 boxes of Supérieur nitrile
gloves no later than January 26, 2021, at a cost of $13 per box (100 gloves per box) and a
total price of $6,999,070.  Exhibit 11 at VA000420-25.  Repeating language from the original
RFQ, section B.2 of the contract stated that “[t]his is not a request for manufacturing but a
request for quantity on hand to be delivered within 30 Days from order” and that “[c]ontracts
that are awarded based on submitted quotes will have 30 calendar days to deliver the
awarded quantities, or the contract will be terminated for cause.”  Id. at VA000423.  The
contract also included the clause at VAAR 852.212-72, “Gray Market and Counterfeit Items
(Mar 2020),” and the October 2018 commercial items clause at FAR 52.212-4.  Id. at
VA000427, VA000441.
Performance Under the Contract
Orsa’s CEO sent an email to the VA contract specialist on January 7, 2021,
confirming that “delivery is still on schedule to deliver Superieur Gloves to DLA Marengo
IN” by January 26, 2021.  Exhibit 12 at VA000445.  On January 15, 2021, however, Orsa’s
CEO emailed that, “[w]ith all Importers buying advanced freight ahead of Chinese New Year
(Chinese Ports Shut down for 2 – 3 Weeks), it is creating some addition[al] freight expense
and or delays in delivery time line.”  Exhibit 13 at VA000448.  Orsa offered to deliver the
gloves no later than February 5, 2021 (a delay beyond the original January 26, 2021, delivery
deadline), if the VA would pay an additional $1.50 per box to cover the cost of air freight. 
Id.  Orsa indicated that, absent the requested air freight supplement, it would need an
extension until February 22, 2021, to deliver the gloves.  In need of the gloves, the VA took
the first option, executing bilateral modification P00001 on January 16, 2021, through which
the parties agreed to reduce the number of gloves required, add the extra $1.50-per-box air
freight cost, and extended the delivery date to February 5, 2021.  Exhibit 14 at VA000455.

CBCA 7142 5
Orsa did not deliver any nitrile gloves by the revised February 5, 2021, delivery date. 
Instead, Orsa sent the VA a letter that day explaining why it was not yet able to deliver any
nitrile gloves:
It is with grave embarrassment and disappointment that we inform all
interested parties of our inability to fulfill this contract.
From the outset, we have used multiple brokers with known suppliers for the
Supérieur glove.  The global pandemic has created sustained pressure on
suppliers, shippers, 3rd party inspection (SGS), raw material costs and their
availability which has been further complicated by outbreaks leading to
shutdowns in factories and even entire provinces where the goods are
produced.
All of our Supérieur suppliers have been and continue to be negatively
impacted.  We were advised that the Ever-Global plant was shut down
temporarily due to an outbreak and has just recently come back online.  Much
of the stock that was available prior to the shutdown (ready stock country of
origin) has been taken up or is at a much higher price point than could be
supported.  Throughout this process we’ve cultivated new suppliers for this
particular glove only to be met with similar delivery issues.  As the suppliers
have failed, we’ve attempted to secure alternate glove options and sources and
have been successful in locating sources of ready stock only to be hindered by
the availability of 3rd party SGS scheduling (10-14 days) as well as airfreight
availability and sometimes even cost as ready stock has increased significantly
in the last 2 months and most severely in the last 30 days.
Exhibit 15 at VA000461.  Nevertheless, Orsa advised the VA that “[w]e have approximately
233,000 boxes of nitrile gloves [that] meet all the requirements ready to ship” and “request
2 weeks extension to complete . . . the delivery of inventory.”  Id. at VA000460.
Subsequently, on February 10, 2021, Orsa sent the VA an email proposing that Orsa
be allowed to substitute Cardinal Health Flexal 200 gloves (the Cardinal Health gloves) for
the Supérieur gloves identified in the contract, as “[t]here is [sic] 1 Million Boxes [of the
Cardinal Health gloves] in the US and we can deliver within 2 weeks.”  Exhibit 17 at
VA000472-73.  The VA’s contract specialist responded the same day, asking, “If the gloves
are on US soil, can they be delivered earlier than 2 weeks?”  Id. at VA000472.  Orsa’s
response was “most likely just add a buffer.”  Id.  The VA contract specialist also requested
a sample glove to be evaluated for technical acceptability.  Id.

CBCA 7142 6
On February 12, 2021, Orsa’s CEO notified the VA contract specialist that Orsa has
“an opportunity to provide the full 478,000 in exact sizing of the Cardinal Flexal Gloves next
week” and that “[t]he total amount of gloves available is 5 Million Boxes.”  Exhibit 18 at
VA000484.  Orsa asked that the VA “send a representative” to Los Angeles for a joint
inspection “to ensure that the gloves we are requesting to exchange for the Superieur Gloves
proposed meet 100% of the government requirements before we delivery [sic] these gloves
to the VA.”  Id.  It does not appear from the record that the VA sent a representative, but, on
February 16, 2021, Orsa’s CEO told the VA that Orsa was “awaiting an inspection of” the
Cardinal Health gloves “to ensure they meet the requirement outlined in the awarded
contract.”  Exhibit 33 at 1.  He reported that Orsa “[c]oncurrently” was “working deals” with
various suppliers in Houston, New Orleans, and Los Angeles to obtain nitrile gloves that it
could deliver to the VA.  Exhibit 19 at VA000485.
On February 18, 2021, Orsa’s CEO emailed the VA contract specialist that Orsa had
“secured, inspected and [is] arranging financing and delivery of Chemo rated Nitrile gloves
(Cardinal Health Flexal 200)” and that “[w]e have access to 25MM boxes of Cardinal Health
Flexal 200’s on the ground in the US.”  Exhibit 21 at VA000503.  Orsa reported that “we are
ready to start delivery next week with the primary focus delivering the following to Marengo
IN on or before 26 February 2021.”  Id.  On February 19, 2021, Orsa’s CEO emailed the VA
contract specialist that the per-glove price would have to increase to $0.15 per glove or $15
per box of 100.  Exhibit 21 at VA000505.
On February 19, 2021, the VA issued and Orsa executed modification P00002 to the
contract, changing the nitrile gloves that Orsa was to deliver from Supérieur gloves to
Cardinal Health gloves, reducing the quantity of gloves that Orsa would be delivering,
increasing the pre-glove unit price from $0.13 to $0.15, increasing the total contract price
from $6,936,655 to $6,960,000, and establishing a new delivery date of February 26, 2021:
Pursuant to FAR 52.212-4(c) Contract Terms and Conditions – Commercial
Items – Changes. [Contract Line Item Number (CLIN)] quantities, delivery
date will be 26 February 2021 and a price increase of $.13 to $.15 cents per
glove due to glove supply shortage.
CLIN 1 SMALL NITRILE GLOVES FROM 80,000 BOXES (1 BOX = 100
EA) TO 34,000 BOXES (1 BOX = 200 EA).
CLIN 2 MEDIUM NITRILE GLOVES FROM 160,000 BOXES (1 BOX =
100 EA) TO 82,000 BOXES (1 BOX = 100 EA).
CLIN 3 LARGE NITRILE GLOVES FROM 160,000 BOXES (1 BOX = 100
EA) TO 82,000 BOXES (1 BOX = 100 EA).

CBCA 7142 7
CLIN 4 EXTRA LARGE NITRILE GLOVES FROM 80,000 BOXES (1 BOX
= 100 EA) TO 34,000 BOXES (1 BOX = 200 EA).
Exhibit 22 at VA000539; see id. at VA000540-41 (reflecting change to “Cardinal Health
Flexal” gloves with a delivery date of February 26, 2021).
Yet, questions about whether the gloves would be delivered and the provenance of the
gloves remained.  On February 24, 2021, the VA contract specialist emailed Orsa’s CEO to
confirm a conversation earlier that day:
By 8 am Central Time on 2/25, you must provide a signed letter showing
where these gloves come from and that you are an authorized distributor. 
Even if these gloves are not Cardinal, we want evidence of where they came
from and that you are authorized to sell.
By 8 am Central Time on 2/25, he must provide an address and time that we
can have a third party inspection team examine the gloves on Friday, 2/26.
If all requested information is not submitted by 8AM CST on 2/25/2021, the
termination for cause process will begin due to the inability to fulfill terms and
conditions of the contract.
Exhibit 23 at VA000543.
On February 25, 2021, Orsa’s CEO notified the VA contract specialist that it was
having problems in procuring the Cardinal Health gloves but indicated that it had a lead on
an offering of Kimberly Clark KC500 nitrile gloves that Orsa could arrange to deliver. 
Exhibit 24 at VA000561.  The CEO then notified the VA contract specialist of additional
leads on Hartalega GloveOn Palama 200 nitrile gloves and Hi-Care Thai nitrile gloves.  Id.
at VA000564-66, VA000591-94.  That same day, Orsa’s CEO notified the VA contract
specialist that Orsa had “located and arranged an in person inspection of 11,448,800
individual Nitrile Gloves ready for sale and delivery from Myrtle Beach SC” that could “be
inspected” at a specific location in Myrtle Beach, with the identified gloves being a mix
manufactured by six different companies:  Med Pride, Palm Care, Aurelia Transform,
Brightway, Procure, and Safeko.  Exhibit 26 at VA000619.
The contractual deadline of February 26, 2021, for delivery of the Cardinal Health
gloves passed without any delivery.
Subsequently, on March 2, 2021, Orsa emailed the VA contract specialist to let him
know that Orsa had forwarded supporting documents for yet another brand of gloves,

CBCA 7142 8
Medical Supply Company of Switzerland (MSCS) nitrile gloves from GAIA Corporation
(Thailand) Limited, that Orsa indicated it might be able to provide and that it had attempted
to deliver a sample glove for testing.  Exhibit 36 at 1.  The VA rejected the submission as
unacceptable.  Complaint ¶ 27; Answer ¶ 27.  In its summary judgment response, Orsa
asserts that the VA’s rejection was unreasonable, Appellant’s Summary Judgment Response
at 17, but the record contains no evidence about the VA’s rejection of the substitution request
or its reasonableness.
The Termination Decision and Orsa’s Appeal
On March 16, 2021, the VA contracting officer issued a final decision terminating
Orsa’s contract for cause based upon Orsa’s “not providing an authorized distributor letter
and an address and time so we can have a third-party inspection team examine the gloves”
and Orsa’s failure to deliver the Cardinal Health gloves by the due date of February 26, 2021. 
Exhibit 27 at VA000630.  In his decision, the VA contracting officer provided Orsa with
notice of its appeal rights.
Subsequently, on April 19, 2021, Orsa notified the VA contracting officer that it was
“100% prepared to deliver INTCO Touch Flex Nitrile Gloves” – yet another nitrile glove
brand – “immediately from current inventory [that] is in the US (Orange County CA).” 
Exhibit 29 at VA000635.  The record does not identify any response from the VA.
On June 4, 2021, Orsa filed this appeal with the Board, requesting that the termination
for cause be converted to one for the Government’s convenience.  The VA subsequently filed
its motion for summary judgment.
Discussion
The Validity of the VA’s Termination Decision
Pursuant to FAR 52.212-4(m), the commercial items termination for cause provision
included in Orsa’s contract, “[t]he Government may terminate this contract, or any part
hereof, for cause in the event of any default by the Contractor, or if the Contractor fails to
comply with any contract terms and conditions.”
If a contractor challenges a termination for cause before the Board, “the government
initially has the burden of proving that the termination for cause was valid.”  Brent Packer
v. Social Security Administration, CBCA 5038, et al., 16-1 BCA ¶ 36,260 (quoting KSC-TRI
Systems, USA, Inc., ASBCA 54638, 06-1 BCA ¶ 33,145 (2005)).  “Once the agency has
satisfied its threshold burden to support a termination for [cause], the burden shifts to the
contractor to establish that its failure to comply with the terms and conditions of the

CBCA 7142 9
contract[] was excusable.”  ORSA Technologies, CBCA 7141, slip op. at 9 (quoting Carmazzi
Global Solutions, Inc. v. Social Security Administration, CBCA 6264, et al., 19-1 BCA
¶ 37,340).  “To the extent that the contractor claims that excusable delays impacted its
performance and entitled it to extra time to perform, the contractor bears the burden of
proving excusability.”  Id. (citing 1-A Construction & Fire v. Department of Agriculture,
CBCA 2693, 15-1 BCA ¶ 35,913).
In this case, the VA has satisfied its burden of showing that the termination for cause
was valid.  Under the contract, as modified by modification P00002, Orsa was required to
deliver Cardinal Health nitrile gloves by February 26, 2021.  Orsa did not deliver any gloves
by the due date, and the VA contracting officer subsequently terminated the contract.  “A
contractor’s failure to make timely delivery of agreed-upon goods establishes a prima facie
case of default.”  General Injectables & Vaccines, Inc. v. Gates, 519 F.3d 1360, 1363 (Fed.
Cir. 2008).  The VA has established its prima facie case.
Orsa’s Defenses to the Termination
Because the VA has met its threshold burden, Orsa has the burden of showing that it
was excused from meeting the February 26, 2021, deadline.  It raises the following
arguments:
Lack of a Cure Notice.  Orsa argues that the termination was defective because the
VA was obligated but failed to provide Orsa with a cure notice before termination.  The VA
did not terminate the contract for cause until March 16, 2021, after Orsa missed the
February 26, 2021, delivery deadline to which it had agreed in modification P00002.  In a
commercial items contract, no cure notice is required “for late delivery.”  FAR 12.403(c). 
Although Orsa argues that a cure notice was required here because there are “broader issues
at play” during a pandemic, Appellant’s Summary Judgment Response at 16, whether a cure
notice is necessary as a prerequisite to termination is governed by the language of the
termination clause itself.  The language of Orsa’s contract does not impose a requirement for
a cure notice prior to termination for late delivery, even if there is a pandemic.  For the same
reasons that we explained in ORSA Technologies, CBCA 7141, slip op. at 9, we reject Orsa’s
argument that a cure notice was required in the circumstances here.
Excusable Delays.  Orsa argues that its inability to deliver the Cardinal Health nitrile
gloves by February 26, 2021, was excused because of difficulties resulting from COVID-19. 
Orsa’s argument borders on the frivolous.  Orsa signed a contract modification on
February 19, 2021, agreeing to deliver the required nitrile gloves within the next seven days
(that is, by February 26).  Orsa did not deliver.  “It is well established a contractor is
responsible for ‘ensuring that the labor, materials, and equipment necessary for timely
delivery are available to it.’”  Mule Engineering, Inc., ASBCA 60854, 17-1 BCA ¶ 36,728

CBCA 7142 10
(quoting Sack Sinha & Associates, Inc., ASBCA 46916, 96-2 BCA ¶ 28,346).  “If a
contractor fails to so ensure, it must suffer any consequences arising from that failure.”  Id.
(quoting Sack Sinha).
Orsa devotes the bulk of its summary judgment briefing to arguing that the VA should
have known from Orsa’s original quote for this contract that Orsa did not actually have nitrile
gloves “on hand” (despite the RFQ requirement for “on hand” gloves) when it obtained the
contract and that a “perfect storm” of problems resulting from the COVID-19 pandemic
excuse its failure to locate and procure acceptable nitrile gloves in a timely manner.  Yet,
what the Government knew about Orsa’s inventory at the time of the original contract award
is irrelevant to the validity of the VA’s termination decision.  Orsa signed bilateral contract
modification P00002 on February 19, 2021, agreeing to a new delivery deadline of
February 26, 2021.  “It is well established that the ‘action of the parties in agreeing upon a
new delivery schedule eliminates from consideration the causes of delay occurring prior to
such agreement.’”  Sack Sinha (quoting RFI Shield-Rooms, ASBCA 17374, 77-2 BCA
¶ 12,714).  “In establishing a new delivery date, the parties agree to ‘let bygones be bygones’
and ‘[a]ny delinquencies on the part of either the contractor or the Government [a]re ‘washed
out.’”  Environmental Devices, Inc., ASBCA 37430, et al., 93-3 BCA ¶ 26,138 (quoting
Winder Aircraft Corp., ASBCA 4364, et al., 58-2 BCA ¶ 2044).  That is, “[i]n agreeing to
a new delivery schedule, a contractor erases the ability to raise pre-existing causes of delay.” 
Bulova Technologies Ordnance Systems LLC, ASBCA 57406, 14-1 BCA ¶ 35,521; see
Lit-Ning Products Co., GSBCA 3894, 74-2 BCA ¶ 10,816 (“The effect of the extension of
the delivery schedule made by Modification No. 2 precludes considering this [pre-
modification] delay since the presumption is that all delays and their causes were considered
when this new delivery schedule was agreed upon by both parties.”).  “Where the parties
have executed a contract modification containing a new delivery date, as here, the contractor
must perform by the new date unless delayed by an excusable cause arising after the
modification.”  Environmental Devices (emphasis added).
Orsa has identified no new basis for delay that occurred after it executed modification
P000002 on February 19, 2021, that could be considered excusable.  In fact, most of the
events about which Orsa complains, including import limitations on gloves from a large
nitrile glove manufacturer in July 2020 and the temporary COVID-caused shutdown of many
manufacturing facilities for that same glove manufacturer in November 2020, occurred
before the VA even awarded the contract at issue here.  Even if some described events
occurred after the original December 30, 2020, contract award date, the only events that
could be of relevance to Orsa’s challenge to the termination decision are those that occurred
after the February 19, 2021, date upon which the parties mutually established a new delivery
deadline.  Orsa has identified nothing new that happened between February 19 and the
February 26 due date.

CBCA 7142 11
Orsa cites to the COVID-19 pandemic as the basis of its excusable delay claim.  It
argues that it does not matter whether it could have or should have anticipated its post-
modification delays because, since the “Excusable Delays” provision in FAR 52.212-4(f)
expressly mentions “epidemics,” it does not matter whether causes of delay were foreseeable
when it executed the contract modification.  We rejected that argument in ORSA
Technologies, CBCA 7141, slip op. at 11-13, explaining there that the “Excusable Delays”
clause only excuses delays that, as expressly stated in the clause, are “beyond the reasonable
control” of the contractor.  That limitation precludes excusing foreseeable delays.  Id. at
11-12.  Because the causes of delay that Orsa cites in this case were foreseeable when it
executed modification P000002, Orsa has identified no viable excuse for its contract delivery
failure.  See Asheville Jet Charter & Management, Inc. v. Department of the Interior, CBCA
4079, 16-1 BCA ¶ 36,373 (finding that the purpose of the excusability proviso in FAR
52.212-4(f) is “to protect the contractor against the unexpected” and that the events listed in
the proviso are not “always to be regarded as unforeseeable, no matter what the attendant
circumstances are” (quoting United States v. Brooks-Callaway Co., 318 U.S. 120, 123
(1943))).
Orsa also offers a declaration from its CEO in which he attests that the reason for
Orsa’s inability to deliver the Cardinal Health gloves after executing modification P00002
was “due to events beyond its control [resulting from] unforeseen impacts [from] COVID
that continued to get worse” and asserts that “[t]he available supply of gloves dropped
precipitously” after it executed the modification “and ORSA had difficulty securing the
required supply.”  Declaration of Jonathan Woodruff (Nov. 22, 2021) ¶ 19.  Orsa’s CEO also
attests that, had the VA extended its delivery deadline rather than terminating the contract,
Orsa “would have been able to locate an acceptable source of the gloves to satisfy the VA’s
needs” and that, had the VA allowed additional glove substitutions, Orsa “could have secured
multiple alternative options.”  Id. ¶¶ 21–22.  The declaration says nothing about why, when
it executed modification P00002, Orsa should not have anticipated problems in acquiring the
required nitrile gloves (gloves to which Orsa had previously represented it already had
access) and provides no basis for the affiant’s confidence that Orsa “would have” obtained
acceptable nitrile gloves in the future.  A declaration based upon such conjecture and
speculation provides no basis for defeating a motion for summary judgment.  See Applied
Cos. v. United States, 144 F.3d 1470, 1475 (Fed. Cir. 1998) (“It is well settled that ‘a
conclusory statement on the ultimate issue does not create a genuine issue of fact.’” (quoting
Imperial Tobacco Ltd. v. Philip Morris, Inc., 899 F.2d 1575, 1581 (Fed. Cir. 1990))).  The
CEO’s generalized reasons for post-modification delays conflict with the clear evidence of
record showing that Orsa was well aware when it executed modification P00002 of the
delays and difficulties in obtaining nitrile gloves that had been occurring for months.  Given
Orsa’s repeated history of representing that it had nitrile gloves in hand and only later telling
the VA that it did not, the speculation in the declaration that Orsa could have and would have

CBCA 7142 12
delivered gloves with further extensions and substitutions is simply not credible.  The
declaration provides no basis for overcoming the VA’s entitlement to summary judgment.
Orsa also asks that we postpone any decision on the VA’s summary judgment motion
in favor of a hearing at which it intends to “call an expert witness who will testify that the
‘perfect storm’ [affecting the] nitrile glove market was not foreseeable at the time of contract
award and that this prevented [Orsa] from delivering the gloves by the contract delivery date
as revised.”  Appellant’s Summary Judgment Response at 13.  If Orsa had evidence to
produce in response to the VA’s summary judgment motion, it should have included it in its
response brief.  ORSA Technologies, CBCA 7141, slip op. at 8 (citing Mingus Constructors,
Inc. v. United States, 812 F2d 1387, 1390-91 (Fed. Cir. 1987)).  Further, evidence of
whatever “perfect storm” existed “at the time of contract award” is irrelevant to this case
given that, on February 19, 2021, Orsa executed modification P00002, agreeing to deliver
nitrile gloves by February 26, 2021.  As discussed above, that bilateral modification rendered
all earlier delays and the reasons for those delays immaterial to this case.  The only relevant
excusable delay analysis relates to unanticipated and unforeseeable delays that developed
after February 19, 2021, the date upon which the parties agreed to a new delivery schedule. 
Sack Sinha; Environmental Devices.  Orsa has identified no unforeseeable delays that
occurred between February 19, 2021, and the February 26, 2021, delivery deadline.
The VA’s Refusal to Approve Another Glove Substitution.  Orsa complains that, after
Orsa failed to deliver the Cardinal Health gloves that the VA had agreed to allow Orsa to
substitute for the Supérieur gloves, the VA inexcusably failed to give Orsa yet another
opportunity – after Orsa failed to meet the first three contractual delivery deadlines – to
deliver a different brand of nitrile gloves than the one required by modification P00002. 
Having failed to deliver the Cardinal Health gloves by the February 26, 2021, deadline, Orsa
sent the VA an email on March 2, 2021, stating that it had access to MSCS nitrile gloves by
GAIA Corporation (Limited) Thailand that it thought it could deliver.  Exhibit 36 at 1.  The
VA rejected the proposed substitute as unacceptable, and Orsa argues (without any
supporting evidence) that the replacement gloves met the VA’s needs and that the rejection
was unreasonable.  Representations of counsel without any supporting evidence, like those
in Orsa’s summary judgment response, are insufficient to create a genuine issue of material
fact sufficient to defeat the Government’s summary judgment motion.  Levi Strauss & Co.
v. Genesco, Inc., 742 F.2d 1401, 1404 (Fed. Cir. 1984).
In any event, the VA had no obligation to accept Orsa’s post-breach substitution
request.  See Southern Systems, Inc., ASBCA 43797, et al., 00-1 BCA ¶ 30,762 (“The general
rule is that the Government is entitled to strict compliance with its specifications and,” absent
a clause that states to the contrary, “is not obligated to accept substitutes.”).  Orsa had
committed itself by contract (as amended by modification P00002) to deliver Cardinal Health
gloves to the VA by February 26, 2021.  By failing to deliver by that deadline, Orsa breached

CBCA 7142 13
its obligations under the contract.  For the reasons that we explained in ORSA Technologies,
CBCA 7141, slip op. at 14-15, the VA had no obligation to accept Orsa’s requests to
substitute unapproved nitrile gloves for those that Orsa had committed itself through contract
to deliver.  In fact, in light of the history of Orsa’s repeated misrepresentations about its
ability to deliver “on hand” nitrile gloves under this contract, delivery delays and extensions,
and contract price increases that the VA had been forced to accept in an effort to get gloves
that it desperately needed, the VA’s refusal to accept yet another substitution request and
another delay was more than justified.
Decision
For the foregoing reasons, the VA’s motion for summary judgment is granted.  Orsa’s
appeal is DENIED.
    Harold D. Lester, Jr.      
HAROLD D. LESTER, JR.
Board Judge
We concur:
   Marian E. Sullivan             Kathleen J. O’Rourke    
MARIAN E. SULLIVAN KATHLEEN J. O’ROURKE
Board Judge Board Judge