ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

Capy Machine Shop, Inc. ) 

) 

Under Contract No. SPE4A7-13-M-D099 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 59133 

Mr. Salvatore Capacchione 

President 

Daniel K. Poling, Esq. 

DLA Chief Trial Attorney 

Edward R. Murray, Esq. 

Adrienne D. Bolton, Esq. 

Trial Attorneys 

DLA Aviation 

Richmond, VA 

OPINION BY ADMINISTRATIVE JUDGE TUNKS ON THE GOVERNMENTS 

MOTION FOR SUMMARY JUDGMENT 

This appeal arises from the termination for default of an order to supply parts for 

the A-10 aircraft to the Defense Logistics Agency Aviation (DLA Aviation or 

government). DLA Aviation moves for summary judgment, alleging that there are no 

material facts in dispute and that it is entitled to judgment as a matter of law on the 

ground of anticipatory repudiation and appellant's alleged default is unexcused. 

Capy Machine Shop, Inc., (Capy or appellant) opposes the motion. 

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 

1. On 9 July 2013, Mr. John Vlachos, general manager of Capy, accepted Order 

No. SPE4A7-13-M-D099 to provide 27 splice fairings to DLA Aviation. The order also 

required submission of one first article test for a total contract price of $52,232.85. 1 The 

first article delivery date was 6 January 2014. (R4, tab 9 at 1) 

2. The order incorporated FAR 52.249-8, DEFAULT (FIXED-PRICE SUPPLY AND 

SERVICE) (APR 1984) by reference which provides, in part, as follows: 

(a)(l) The Government may, subject to paragraphs 

( c) and ( d) of this clause, by written notice of default to the 

1 The order resulted from a Request for Quotations issued by the government on 

3 June 2013 (R4, tabs 3, 4). 
Contractor, terminate this contract in whole or in part if the 

Contractor fails to-

(i) Deliver the supplies or to perform the services 

within the time specified in this contract or any extension; 

(c) Except for defaults of subcontractors at any tier, 

the Contractor shall not be liable for any excess costs if the 

failure to perform the contract arises from causes beyond 

the control and without the fault or negligence of the 

Contractor. Examples of such causes include ( 1) acts of 

God or of the public enemy, (2) acts of the Government in 

either its sovereign or contractual capacity, (3) fires, 

( 4) floods, ( 5) epidemics, ( 6) quarantine restrictions, 

(7) strikes, (8) freight embargoes, and (9) unusually severe 

weather. In each instance the failure to perform must be 

beyond the control and without the fault or negligence of 

the Contractor. 

( d) If the failure to perform is caused by the default 

of a subcontractor at any tier, and ifthe cause of the default 

is beyond the control of both the Contractor and 

subcontractor, and without the fault or negligence of either, 

the Contractor shall not be liable for any excess costs for 

failure to perform, unless the subcontracted supplies or 

services were obtainable from other sources in sufficient 

time for the Contractor to meet the required delivery 

schedule. 

(R4, tab 1at18of18) 

3. On 7 November 2013, Mr. Vlachos emailed Mr. Donnie W. Graves, the 

contracting officer (CO), as follows: 

(R4, tab 6) 

Please cancel the above contract at no cost to Capy 

Machine. 

Our forming vendor can't locate his tooling[.] 

2 
4. On 13 November 2013, CO Graves issued a show cause notice to Capy: 

(R4, tab 7) 

Because you have indicated in an e-mail dated 

07 NOV 2013 citing an inability to locate tooling on 

contract SPE4A7-13-M-D099 within the time required by 

its terms and thereby requesting termination for 

convenience, the Government is considering terminating 

this contract under the provisions for default. Pending a 

final decision in this matter, it will be necessary to 

determine whether your failure to perform arose from 

causes beyond your control and without your fault or 

negligence. Accordingly, you are given the opportunity to 

present, in writing, any facts bearing on the question to 

me ... within 10 days after receipt of this notice. 

If you have any questions, please contact 

Len DuPilka, Contract Administrator .... 

5. On 26 November 2013, Mr. Vlachos emailed Mr. Len J. DuPilka, the contract 

administrator, as follows: 

(R4, tab 8) 

The cost of new tooling is $26,512.00 total which wasn't 

included on the quote. 

That is the reason for asking to cancel this contract. 

6. The record contains a quotation from Banner Metalcraft, Inc., dated 

23 September 2013, the contract having been awarded on 9 July 2013, which includes a 

one-time tooling charge of $26,512.00 (Bd. corr., attach. to notice of appeal). 

7. On 12 December 2013, Ms. Janice Hicks, the terminating contracting officer 

(TCO), terminated the contract for default, stating as follows: 

You are hereby notified that contract SPE4A7-13-M-D099 

is terminated for default effective immediately. Your right 

to proceed further with performance of this contract is 

terminated. The termination is based on your failure to 

perform in accordance with the terms and conditions of the 

3 
(R4, tab 10) 

contract. The terminated supplies may be procured against 

your account and you will be held liable for excess costs. 

8. On 9 January 2014, Capy appealed the TCO's final decision to this Board 

where it was docketed as ASBCA No. 59133. The following was attached to Capy's 

notice of appeal: 

These parts required tooling. When we quoted the 

solicitation the tooling was available to us. After we were 

awarded this order we found out that the tooling could not 

be located. This meant that we would have to create new 

tooling at [a] cost of$26,512.00. This cost was not 

included in our original quote.... We could not afford to 

complete this order so we requested a cancellation with no 

cost to either party. 

DECISION 

Summary judgment is properly granted only where the moving party has met its 

burden of proving the absence of any genuine issue of material fact and that it is entitled 

to judgment as a matter of law. Mingus Constructors, Inc. v. United States, 812 .2d 1387, 

1390 (Fed. Cir. 1987). The government bears the burden of proof to justify the default 

termination. When the government establishes a prima facie case that the termination 

was justified, the burden shifts to the contractor to demonstrate that the default was 

excusable. Hanley Industries, Inc., ASBCA No. 56584, 14-1 BCA ii 35,699. 

The government argues that there are no material facts in dispute and that it is 

entitled to summary judgment on the ground of anticipatory repudiation. The record 

establishes that the first article delivery date was 6 January 2014. By email dated 

7 November 2013, Mr. Vlachos, Capy's general manager, requested CO Graves to cancel 

the contract at no cost because its forming vendor could not find the necessary tooling. 

On 26 November 2013, Mr. Vlachos emailed Mr. DuPilka, the contract administrator, 

again requesting that the government cancel the contract on the same grounds. 

The government has not demonstrated that Capy repudiated the contract. 

Anticipatory repudiation requires a "positive, definite, unconditional, and unequivocal" 

manifestation on the part of the contractor that he will not perform the contract. Cascade 

Pacific International v. United States, 773 F.2d 287, 293 (Fed. Cir. 1985). Capy 

communicated with the CO twice before the contract was terminated. On 7 November 

2013, Capy requested a no cost cancellation, stating that its "forming vendor can't locate 

his tooling." On 26 November 2013, Capy advised that the "cost of new tooling is 

$26,512.00 total which wasn't included on the quote. That is the reason for asking to 

4 
cancel this contract." These communications do not reflect a positive, definite, 

unconditional and unequivocal refusal to perform. 

Accordingly, the government's motion for summary judgment is denied. 

Dated: 22 October 2014 

I concur 

&~-~- MARK N. STEMPLER 

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

RICHARD SHACKLEFORD 

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. 59133, Appeal of Capy 

Machine Shop, Inc., rendered in conformance with the Board's Charter. 

Dated: 

5 

JEFFREY D. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals