### ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of--
Enola Contracting Services, Inc.
Under Contract No. W91247-l 1-D-0007
APPEARANCE FORTHE APPELLANT: ) ) ) ) )



### APPEARANCES FOR THE GOVERNMENT: ASBCA No. 59526



### Mr. Allen Clark

President Raymond M. Saunders, Esq.

Army ChiefTrial Attorney MAJ Jamal A. Rhinehardt, JA

Trial Attorney
OPINION BYADMINISTRATIVE JUDGE MCILMAIL ONAPPELLANT'S MOTION FORPARTIAL JUDGMENT ON THE PLEADINGS
INTRODUCTION
The Department ofthe Army (government) contractedwith appellant, Enola Contracting Services, Inc. (Enola), including for the maintenance and repair ofreal property at Army installations in Georgia. The government terminated a number of task orders issued pursuant to the contract, and Enola appealed. Enola contends that the government's complaint1 

### in this appeal does not state facts sufficientto constitute a cause ofaction against Enola with respect to six ofthe terminated task orders, and requestsjudgment on the pleadings in its favor with respect to those six task orders. 2 

### We deny the motion.
DECISION
Enola's motion for partialjudgment on the pleadings requestsjudgmentthat the termination ofTask OrderNos. 0139, 0164, 0165, 0166, 0167, and 0173 was wrongful. In reviewing a motion forjudgment on the pleadings, we must presume that the facts are as alleged in the complaint, and make all reasonable inferences in favor of the complainant. See Kolin Construction, Tourism, Industry and Trading Co., 

### ASBCA

1

### As a termination for cause is a government claim, the government filed the complaint. 2

### Appellant's motion for partialjudgment on the pleadings was filed by and briefed by counsel. Counsel withdrew on 24 April 2015 and advised the Board to communicate with 

### Mr. Allen Clark.Nos. 56941, 57066,**11-1BCA~34,670** at 170,796. To state a claim, the complaint must allege facts plausibly suggesting a showing ofentitlement to relief. Id. The factual allegations must be enough to raise a right to reliefabove the speculative level. Id. This does not require the complainantto set out in detail the facts upon which the claim is based, but enough facts to state a claim to reliefthat is plausible on its face. Id.

The government contends that Enola anticipatorily repudiated Task Order Nos. 0139, 0164, 0165, 0166, 0167, and 0173,justifyingtheirtermination for default. The government may terminate a contract when the contractor has anticipatorily repudiated the contract. ScottAviation, ASBCANo. 40776, 91-3 BCA**~** 24,123 at 120,726. To demonstrate anticipatory repudiation, the government mustprove that the contractor manifestedto it a definite and unequivocal intention not to render the required performance. Id.
Here, as the complaint alleges, we presume (without finding) the following. On 25 March 2011, the government entered into an indefinite delivery, indefinite quantity contract with Enola, including for maintenance and repair ofreal property at Fort Stewart and Hunter Army Airfield, in Georgia (compl.**~** 11). Among the task orders the government issued pursuant to the contract were Task OrderNos. 0139, 0164, 0165, 0166, 0167, and 0173**(id.~** 7). Enola failed to proceed with the work in accordance with the contracting officer's direction, failed to give adequate assurance that projects would be timely completed, expressed through words and conduct the intention not to complete the work on time, and specifically stated that it would "not be coming back to any ofthejobsites and doing anymore [sic] work"**(id.~** 40). On 10 June 2014, the government issued Modification No. P00003, terminating for default 16 task orders, including Task OrderNos. 0139, 0164, 0165, 0166, 0167, and 0173 (id.**~** 33).
Based upon the foregoing, we agree with the government that the complaint states a claim for relief, above the speculative level, that Enola anticipatorily repudiated Task OrderNos. 0139, 0164, 0165, 0166, 0167, and 0173,justifying their termination for default. Specifically, the allegation that Enola stated that it would not be coming back to any ofthejobsites orbe doing any more work, which we must presume to be true in reviewing Enola's motion, manifested a definite and unequivocal intention not to render required performance. It is not dispositive that, as Enolapoints out (app. mot. at 4), the complaint does not allege task-order specific facts concerning the performance ofTask OrderNos. 0139, 0164, 0165, 0166, 0167, or 0173. (Indeed, although the complaint quotes documents that address the performance ofspecific task orders (compI.**~~** 12-26), the complaint itselfalleges task-order specific facts regarding the performance ofonly Task Order Nos. 0145, 0159, and 0160**(id.~~** 22, 24, 25)). Consistent with the standard ofreview ofa motion forjudgment on the pleadings, we draw the reasonable inference that when Enola stated that it would not
2 

# Ibe returning to any ofthejobsites orbe doing any more work**(id.~** 40), it meant that with respect to all ofthe task orders referenced in the complaint, including Task Order Nos. 0139, 0164, 0165, 0166, 0167, and 0173. Ofcourse, we have not found any facts concerning the performance ofany ofthe task orders at issue in the appeal; that is for another day.

CONCLUSION

Forthese reasons, the motion for partialjudgment onthe pleadings is denied.

Dated: 8 July 2015

I concur

Administrative Judge Acting Chairman Armed Services Board ofContract Appeals TIMOTHYP. Administrative ud e Armed Services Board ofContractAppeals

I concur

RICHARD SHACKLEFORD Administrative Judge Vice Chairman Armed Services Board ofContract Appeals

I certify that the foregoing is a true copy ofthe Opinion and Decision ofthe Armed Services Board ofContractAppeals in ASBCANo. 59526, Appeal ofEnola Contracting Services, Inc., rendered in conformance with the Board's Charter.

Dated:

3 JEFFREYD. GARDIN R.ecorder, Armed Services Board ofContract Appeals