CROSS-MOTIONS FOR SUMMARY RELIEF DENIED: May 18, 2018
CBCA 5976
TRIBUTE CONTRACTING LLC,
     Appellant,
v.
DEPARTMENT OF HOMELAND SECURITY,
  Respondent.
Tiffany Brown, Owner of Tribute Contracting LLC, Atlanta, GA, appearing for
Appellant.
Lindsay J. Stoudt and Samantha S. Ahrendt, Office of Chief Counsel, Federal
Emergency Management Agency, Department of Homeland Security, Washington, DC,
counsel for Respondent.
Before Board Judges BEARDSLEY, DRUMMOND, and CHADWICK.
CHADWICK, Board Judge.
Tribute Contracting LLC (Tribute) timely appealed from a decision of a Federal
Emergency Management Agency (FEMA) contracting officer terminating Tribute’s
commercial items contract for cause.  The parties filed cross-motions for summary relief
after submitting the appeal file but before taking any discovery.  FEMA urges us to
sustain the termination based on Tribute’s failure to meet the delivery schedule.  Tribute
argues that the termination was procedurally flawed and should be converted to a
termination for convenience.  Because we see material facts in dispute and find neither
party entitled to relief at this stage as a matter of law, we deny both motions.


CBCA 5976 2
Background
We base this factual summary on undisputed statements filed by the parties with
their cross-motions and on documents in the appeal file on which the parties rely.  
In October 2017, FEMA awarded Tribute a contract for thirty million “self-
heating” meals to be delivered to the seaport in Jacksonville, Florida, at a fixed price of
$5.10 per meal.  The meals were intended for disaster relief operations in Puerto Rico. 
The contract originally called for Tribute to begin delivering self-heating meals to the
seaport on Saturday, October 7, 2017, at a rate of one million meals per day, increasing to
two million meals per day the following week, and three million meals per day for a third
and final week.  The contract contained Federal Acquisition Regulation (FAR) Clause
52.212-4, Contract Terms and Conditions—Commercial Items (Jan 2017) (48 CFR
52.212-4 (2017)), including subpart (m), Termination for cause, which used the same
language that we quoted (from an earlier FAR) in Packer v. Social Security
Administration, CBCA 5038, et al., 16-1 BCA ¶ 36,260, at 176,899.
After award, Tribute and the FEMA contracting officer agreed to a revised
schedule, with daily deliveries of self-heating meals to the Jacksonville seaport beginning
on Wednesday, October 11, and continuing until Friday, November 10, in gradually
increasing amounts that would not reach one million meals per day until October 26. 
The first scheduled delivery was 50,000 meals on October 11.  Tribute delivered
50,000 meals that day.  Although a disagreement arose as to whether the delivered meals
were “self-heating” within the meaning of the contract, FEMA accepted the meals and
later paid Tribute for them.  Tribute never delivered another meal under the contract. 
At 7:52 p.m. on October 11, the day of the first delivery, the FEMA contracting
officer emailed Tribute, under the subject line “48 hours,” “They are asking vendors to
delay delivery on all meals for 48 hours.  This only includes drivers not [e]n route.  The
wait in Jacksonville is extensive.”
The next day, Thursday, October 12, Tribute emailed the contracting officer that
Tribute had “a new [meal] supplier.  The self heating bag and pouch is in a separate box. 
They will be combined in the next shipment.”  Tribute attached a photograph of a new
meal package.
On Friday, October 13, a different FEMA contracting officer advised Tribute and
other vendors by email that the “Jacksonville loading dock will close [for deliveries] this
weekend” and would “resume business on Monday, October 16, 2017.”

CBCA 5976 3
Exactly what happened on Monday the 16th through Wednesday the 18th is unclear
from the record.  At midday on Thursday, October 19, Tribute emailed the first FEMA
contracting officer that it planned to deliver meals to Jacksonville with “an adhesive
heater attachment . . . in separate boxes.”  It appears from the record that Tribute attached
to this email a photograph of the new meal and heater.  The contracting officer
immediately replied to Tribute, “The meals you sent were not authorized.  The meals in
the pictures are not authorized in accordance with the terms of the evaluation or contract.” 
The contracting officer wrote that shipping meal pouches and heaters in separate
containers “is unacceptable,” and concluded, “Please do not send another meal.”  
Tribute replied that two truckloads of the meals were “already in transit since
yesterday [October 18] and will arrive at 1900 [7:00 p.m.].”  The contracting officer
replied, “As stated[,] these meals are unacceptable, please contact the drivers and have
those trailers return to origin.”
After further email exchanges, the contracting officer advised Tribute by email at
7:17 p.m., “Do not ship another meal[.]  Your contract is terminated.  The trailers that you
are sending are the ones in our inventory that have meals in one and heater packs in
another.  This is a logistical nightmare” (paragraph breaks omitted).
On Monday, October 23, the contracting officer issued a unilateral contract
modification terminating the contract for cause under FAR Clause 52.212-4.  The
modification stated in relevant part, “The contract is being terminated due to late delivery
of the approved heater meals.  The meals that were delivered on 11 October were 50,000. 
The 36,000 meals scheduled on 19 October did not comply with the approved meals at
the time of award.”  Tribute appealed from this decision on December 26, 2017.
Discussion
We have jurisdiction of Tribute’s timely appeal from the termination for cause,
which is a government claim.  41 U.S.C. § 7104(a) (2012); Primestar Construction
v. Department of Homeland Security, CBCA 5510, 17-1 BCA ¶ 36,612, at 178,329
(2016).  “[T]he only relief available under an appeal of a default [or for-cause]
termination is the conversion of the default termination to one for the convenience of the
Government.”  Aurora, LLC v. Department of State, CBCA 2872, 16-1 BCA ¶ 36,198, at
176,648 (2015).  After reviewing the cross-motions for summary relief, we conclude that
neither party is entitled to judgment, either sustaining or converting the termination,
“based on uncontested material facts . . . as a matter of law.”  Board Rule 8(g)(1) (48 CFR
6101.8(g) (2017)); see Karp v. General Services Administration, CBCA 1346, 11-1 BCA
¶ 34,716, at 170,934 (explicating the summary relief standard).

CBCA 5976 4
FEMA bears the “burden of proving that [Tribute] did not perform in a timely
fashion,” whereas Tribute bears the “burden of proving that its nonperformance [if any]
was excusable.”  DCX, Inc. v. Perry, 79 F.3d 132, 134 (Fed. Cir. 1996); see Packer, 16-1
BCA at 176,898; 1-A Construction & Fire, LLP v. Department of Agriculture, CBCA
2693, 15-1 BCA ¶ 35,913, at 175,552-54.  Tribute argues that the true reason for the
termination was that FEMA considered Tribute’s meals unacceptable as “self-heating”
under the contract, and that the contracting officer’s reference in the final modification to
untimely delivery was pretextual.  FEMA has elected not to argue, at least for now, about
whether Tribute was able to deliver “self-heating” meals.  Despite the email traffic quoted
above, FEMA “disputes that the Contracting Officer terminated Appellant’s contract
because [Tribute] provided nonconforming goods.”  FEMA focuses, instead, on arguing
that Tribute “was also late.”  Specifically, FEMA argues that Tribute could and should
have made deliveries in Jacksonville on October 12, 13, 16, 17, 18, and 19.  
We find that, on the record before us for purposes of the parties’ motions, there are
too many disputed material facts to decide the case in this posture.  As suggested by our
summary above, factual ambiguities exist as to, among other issues, whether FEMA was
strictly enforcing the terms of the contract, including the daily delivery deadlines, see,
e.g., DeVito v. United States, 413 F.2d 1147, 1154 (Ct. Cl. 1969); S.T. Research Corp.,
ASBCA 39600, 92-2 BCA ¶ 24,838; whether Tribute reasonably should have understood
that FEMA expected Tribute to deliver meals on any of the six days cited by FEMA; and
whether the disagreement that the parties obviously had during performance—about
whether the meals that Tribute said it was prepared to deliver complied with the contract
or would create “a logistical nightmare”—might provide grounds to justify the
termination, should FEMA choose to make that argument.  See, e.g., Kelso v. Kirk Bros.
Mechanical Contractors, Inc., 16 F.3d 1173, 1175 (Fed. Cir. 1994) (“This court sustains a
default termination if justified by circumstances at the time of termination, regardless of
whether the Government originally removed the contractor for another reason.”).  This is
a non-exclusive list.  The parties may raise other issues as the case proceeds.
Decision
Both motions for summary relief are DENIED.
  Kyle Chadwick                  
KYLE CHADWICK
Board Judge

CBCA 5976 5
We concur:
  Erica S. Beardsley           Jerome M. Drummond    
ERICA S. BEARDSLEY JEROME M. DRUMMOND
Board Judge Board Judge