MOTION TO DISMISS OR FOR SUMMARY RELIEF DENIED:  May 9, 2007 
CBCA 162, 243 
DAVID/RANDALL ASSOCIATES, INC., 
Appellant, 
v. 
DEPARTMENT OF THE INTERIOR, 
Respondent. 
William H. Platt II of Flamm, Boroff & Bacine, PC, Allentown, PA; and Henry J. 
Costa, Jr., of Flamm, Boroff & Bacine, PC, Blue Bell, PA, counsel for Appellant.   
James E. Epstein, Office of the Regional Solicitor, Department of the Interior, 
Newton, MA, counsel for Respondent. 
Before Board Judges BORWICK,  McCANN , and DRUMMOND . 
McCANN , Board Judge. 
 Issue 
Do the undisputed facts demonstrate that appellant, David/Randall Associates, Inc. 
(Randall), anticipatorily repudiated the contract? 

 
 
 
 
  
 
 
      
 
2 CBCA 162, 243 
Undisputed Facts 
On September 28, 2001, appellant entered into contract number C4860010302 with 
respondent, the National Park Service (NPS), to perform roofing and related work on six 
properties in the Valley Forge National Historical Park.  Appeal File, Exhibit 1. 
Performance was to begin on January 22, 2002, and to be completed by December 31, 2002. 
The period of performance was extended, and late in 2003 the NPS suspended performance 
under the contract.  Id., Exhibit 127. 
Subsequently, on January 20, 2005, the NPS forwarded a copy of a Roofing Contract 
Performance Analysis done by an outside contractor which alleged many instances of 
unsatisfactory, defective, and incomplete work on the part of Randall.  Appeal File, 
Exhibits 173, 183. 
By letter dated February 9, 2005, the contracting officer, Susan D. Kurtz, wrote to 
Randall, stating in part: 
As you are well aware your firm’s performance under the subject contract has 
been suspended for approximately 15 months.  The National Park Service, 
with the issuance of this letter, respectfully requests that David/Randall 
Associates, Inc., advise this Office as to its intentions on fulfilling its 
outstanding obligations under the subject Contract. 
Appeal File, Exhibit 184.  
By letter dated February 15, 2005, Randall’s attorney, Henry J. Costa, Jr., 
acknowledged receipt of the February 9, 2005, letter and stated: 
Currently, David/Randall Associates is reviewing your correspondence in 
order to prepare a detailed response thereto.  I will be meeting with 
representatives of David/Randall on February 17, 2005 to discuss our client’s 
response. 
Appeal File, Exhibit 185. By e-mail and fax dated February 17, 2005, respondent’s attorney, 
James E. Epstein of the Department of the Interior, acknowledged receipt of this letter.  Id., 
Exhibit 186. 
On February 23, 2005, Mr. Costa sent a letter to Mr. Epstein containing the 
following: 

 
  
  
  
 
 
   
 
     
 
  
 
3 CBCA 162, 243 
David/Randall Associates has had an opportunity to review both its files, as 
well as the reports forwarded to David/Randall by representatives of the Park 
Service.  Having completed its preliminary review it is David/Randall’s belief 
that significant discrepancies exist between what is reported in the 
investigation performed by EYP and the facts as they developed during the 
course of the project. 
As a result, before David/Randall either repairs or attends a meeting with 
representatives of the Park Service, it is imperative that David/Randall be 
permitted to allow its roofing consultant to perform a detailed investigation. 
David/Randall is prepared to have its consultant perform a physical 
investigation of the site upon notice from the Park Service that full and 
complete access will be granted.  Following that review, as well as its review 
of the project records, its consultant would be prepared to meet with the Park 
Service relative to the letter from Contracting Officer Kurtz. 
Appellant’s Exhibit E.
1 
By e-mail and fax of February 23, 2005, Mr. Epstein acknowledged receipt of the 
letter.   Mr. Epstein stated: 
It was our thinking that surety’s agreement to assist in getting behind 
completion at this stage would ultimately save them significant time, money 
and exposure. In that regard, again, in order to achieve this or some mutually 
agreed resolution, time is of the essence. 
Appeal File, Exhibit 189. 
On March 1, 2005, Mr. Costa e-mailed Mr. Epstein as follows: 
I have reviewed your letter of February 23, 2005 upon my return to the office 
on February 28.  I object to some of the characterizations contained in your 
correspondence as I believe your letter mistates (sic) either David/Randall’s 
position and/or its obligations pursuant to the contract. Of upmost (sic) 
concern is the fact that your client, despite having “suspended” this project in 
November, 2003, deems its recent contact of David/Randall Associates to be 
1 Appellant’s Exhibits refer to the exhibits submitted by Randall attached to its 
memorandum of law opposing NPS’ motion for summary relief. 

  
    
 
 
  
     
 
 
    
 
 
    
4 CBCA 162, 243 
of such urgency that it has imposed what we believe to be unreasonable 
deadlines in terms of response, and more importantly, investigation, into the 
issues raised. Note that it was little more than thirty days ago that Mr. Braccia 
of the Park Service initially contacted David/Randall Associates regarding 
what the Park Service believes is a continuing obligation on the part of 
Randall without affording Randall a reasonable opportunity to determine it 
(sic) legal and/or contractual rights. 
Appellant’s Exhibit G. 
On March 2, 2005, Mr. Epstein e-mailed the surety claims manager of Randall’s 
surety stating, “I am afraid that CO Kurtz will very shortly have to terminate DRA for 
default if we are to get this project corrected and completed as efficiently and economically 
as possible from this stage.”  Appellant’s Exhibit H. 
On March 11, 2005, Mr. Epstein e-mailed Mr. Costa, stating: 
[T]his confirms that the absolute “drop dead date” for a contractor and/or 
surety assisted commitment as set forth below and as specified in Contracting 
Officer Kurtz’s February 9, 2005 letter (already 30 days ago from this date), 
is COB Friday, March 18, 2005 . . . . 
Appellant’s Exhibit I. 
On March 18, 2005, Mr. Costa e-mailed Mr. Epstein indicating that Randall 
considered the consultant report flawed and stating in part: 
It is David/Randall’s intention, upon satisfactory resolution of a number of 
outstanding issues, to complete performance of this suspended project.  Those 
outstanding issues which require resolution include, inter alia, proper 
definition of the scope of remaining work, properly addressing the structural 
issues at the Stirling House which impede David/Randall Associates, 
negotiations of reasonable extensions of time as well as reasonable schedule 
for completion, and reimbursement of costs incurred by David/Randall as a 
result of the suspension (labor and material escalation, home office overhead, 
remobilization costs, etc.) 
Appellant’s Exhibit L. 

  
   
 
 
  
     
 
 
 
       
    
 
  
 
5 CBCA 162, 243 
On March 18, 2005, the contracting officer terminated the contract for default based 
upon anticipatory repudiation of the contract by Randall.  In her termination letter, the 
contracting officer stated:                   
United States Department of the Interior Deputy Regional Solicitor, James 
Epstein, received written electronic notice from your attorney, H.J. Costa, 
earlier this date, on your behalf, stating that David/Randall Associates, Inc., 
will not complete project performance unless there is first, as a precondition 
and in advance of initiation of such performance, “satisfactory resolution of 
a number of outstanding issues” including “payment of overdue sums to 
David/Randall as a result of the suspension.” While the Government would 
dispute that there is entitlement by David/Randall Associates, such 
preconditions are not amenable to resolution in a timely basis such as to avoid 
a substantial increase in damages and loss were the Government required to 
wait. The Government has [an] obligation to mitigate damages.  Moreover, 
such preconditions constitute an anticipatory breach of the contract. 
Accordingly, you are hereby notified that the above subject contract is 
terminated completely pursuant to the above referenced clause.  (Clause 
52.249-10 Default (Fixed Price Construction).  The termination is effective 
today, March 18, 2005 . . . .    
Appeal File, Exhibit 196. 
Discussion 
Summary relief may be granted when there are no genuine issues of material fact in 
dispute and the moving party is entitled to judgment as a matter of law.  Anderson v. Liberty 
Lobby, Inc. , 477 U.S. 242, 250 (1986); Fed. R. Civ. P. 56(c).  Any doubt on whether 
summary judgment is appropriate is to be resolved against the moving party.  Celotex Corp. 
v. Catrett, 477 U.S. 317, 325 (1986).  In so deciding, the evidence must be viewed in the 
light most favorable to the opponent of the motion and the doubts must be resolved in favor 
of the opponent.  Santee Modular Homes, Inc., AGBCA 95-220-1, 96-2 BCA ¶ 28,432, at 
142,031.  The moving party shoulders the burden of proving that no question of material fact 
exists.  Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). 
The Court of Appeals for the Federal Circuit set forth the standards for anticipatory 
repudiation in United States v. DeKonty Corp. , 922 F.2d 826 (Fed. Cir. 1991).  Referring 
to long-established Supreme Court precedent, it stated: 
The Supreme Court set forth the standard for anticipatory breaches: 

 
 
 
   
   
 
   
 
  
 
  
  
 
 
 
    
6 CBCA 162, 243 
When one party to [a] . . . contract absolutely refuses to perform 
his contract, and before the time arrives for performance 
distinctly and unqualifiedly communicates that refusal to the 
other party, that other party can, if he choose, treat that refusal 
as a breach and commence an action at once therefor. 
Dingley v. Oler , 117 U.S. 490, 499-500, 6 S.Ct. 850, 853, 29 L.Ed. 984 
(1886).  Dingley further adopted the language of an earlier case which stated: 
[A] mere assertion that the party will be unable, or will refuse 
to perform his contract, is not sufficient; it must be a distinct 
and unequivocal absolute refusal to perform the promise, and 
must be treated and acted upon as such by the party to whom the 
promise was made . . . . 
Id. at 503, 6 S.Ct. at 854 (quoting In re Smoot , 82 U.S. 36, 21 L.Ed. 107 
(1872)). 
922 F.2d at 827-28.  The Federal Circuit in DeKonty went on to say that it had followed this 
precedent in Cascade Pacific International v. United States, 773 F.2d 287 (Fed. Cir. 1985). 
In Cascade, the Court held, 
When there is a “positive, definite, unconditional, and unequivocal 
manifestation of intent . . . on the part of the contractor of his intent not to 
render the promised performance when the time fixed therefor by the contract 
shall arrive, the contracting officer . . . may terminate the contract forthwith 
on the ground of anticipatory breach.” 
Id. at 293 (citations omitted). 
In the instant case, the NPS asserts that Mr. Costa’s e-mail message of March 18, 
2005, is an anticipatory repudiation of the contract.  In addition, the NPS asserts that 
contractors are required to continue performing a contract even when a dispute exists 
regarding the compensation to which the contractor is entitled.  The NPS cites cases which, 
it alleges, so hold.  See, e.g., Eriez Construction, Inc., VACAB 1273, 78-2 BCA ¶ 13,547; 
Howell Tool and Fabricating, Inc., ASBCA 47939, 96-1 BCA ¶ 28,225.  The NPS asserts 
that Randall has refused to perform. 
The first issue that we must decide is whether there are facts in dispute.  In this case, 
the facts relating to past performance are few, but past performance is not really the primary 

 
 
    
   
  
 
   
 
 
 
  
    
 
 
 
  
       
 
 
  
 
     
      
 
 
    
7 CBCA 162, 243 
issue.  The parties agree that the contract was signed, performed for many months, and 
suspended by the NPS.  On January 20, 2005, over a year after the suspension, the NPS sent 
a report to Randall citing many alleged deficiencies in performance.  By letter of February 9, 
2005, the NPS directed Randall to quickly submit a plan to complete the project and re-start 
work.  Randall clearly began to comply with the NPS direction.  However, the NPS was not 
satisfied with Randall’s efforts and was considering terminating Randall as early as March 2, 
2005.  In any event, Randall was terminated for default on March 18, 2005, just hours after 
the NPS received Mr. Costa’s e-mail message. 
 There may or may not be some facts that would lend support to the NPS’ position 
that Randall should have been terminated for default, as the NPS was considering 
termination prior to receipt of the March 18, 2005, e-mail message.  These facts, however, 
if they exist, have not been submitted or relied upon by the NPS in support of its motion. 
Accordingly, they are of no consequence here.  The entirety of the NPS position is that 
Mr. Costa’s e-mail message of March 18, 2005, is an anticipatory repudiation of the 
contract.  Clearly it is not.  
To begin, the NPS characterization of the e-mail message is incorrect.  The message 
states in its final decision that Randall refused to perform unless certain conditions were met. 
That is not what Randall’s attorney, Henry Costa, said.  He said that “[i]t is David/Randall’s 
intention, upon satisfactory resolution of a number of outstanding issues, to complete 
performance of this suspended project.”  There is a big difference between an absolute 
refusal to perform unless certain conditions are met, and a statement of intent to perform 
upon the “resolution” of certain issues.  Here Randall was not issuing ultimatums; it was 
attempting to work with the NPS to resolve problems. In the e-mail message Randall was 
stating its willingness to perform and at the same time trying to get to a situation where it 
could reasonably begin performance after a considerable suspension period.  The statements 
contained in the e-mail message were not clearly unreasonable. 
The issues raised by Randall in the e-mail message were scope of work, structural 
issues, payment for past work, negotiations of reasonable extensions, etc.  Typically, a 
contract defines the work to be performed by a contractor. Here, however, the scope of the 
work to be performed after the suspension has been put in issue.  It is not clear that Randall 
knew how to properly proceed with the work.  Viewing the facts in a light most favorable 
to Randall, we certainly cannot say that performance was sufficiently defined to enable it to 
proceed.  Similar reasoning applies to the other outstanding issues that the e-mail message 
indicated “required resolution.”  Viewing the facts in a light most favorable to Randall, it 
appears that by sending the March 18 e-mail message Randall was simply trying to get issues 
resolved so that it could perform, not refusing to perform.  Such an attempt on Randall’s part 
is not in and of itself an absolute refusal to perform as is required for anticipatory 

 
 
 
 
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8 CBCA 162, 243 
repudiation.  As the Supreme Court said in Dingley , the refusal must be a “distinct and 
unequivocal absolute refusal to perform the promise.”  117 U.S. at 503.  That kind of refusal 
simply is not contained in that e-mail message.  Accordingly, that e-mail message is not in 
and of itself an anticipatory repudiation of the contract. 2 
Decision 
Respondent’s MOTION TO DISMISS OR FOR SUMMARY RELIEF is 
DENIED. 
R. ANTHONY McCANN 
Board Judge 
We concur: 
____________________________ _________________________ 
ANTHONY S. BORWICK JEROME M. DRUMMOND 
Board Judge Board Judge 
2 Since there was no absolute refusal to perform, the NPS’ argument that a 
contractor must continue performance after a dispute arises does not apply.