ARMED SERVICES BOARD OF CONTRACT APPEALS 

Appeal of -- ) 

) 

Capy Machine Shop, Inc. ) 

) 

Under Contract No. SPE4A6-13-M-S227 ) 

APPEARANCE FOR THE APPELLANT: 

APPEARANCES FOR THE GOVERNMENT: 

ASBCA No. 59085 

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 GOVERNMENT'S 

MOTION FOR SUMMARY JUDGMENT 

The government moves for summary judgment, alleging that there are no 

material facts in dispute and appellant's alleged default is unexcused. As a result, the 

government asserts that it is entitled to summary judgment as a matter of law. 

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION 

1. On 25 September 2013, Mr. John Vlachos, general manager of Capy, 

accepted Order No. SPE4A6-13-M-S227 in the amount of $37,431.60. 1 The order 

required Capy to supply 27 splice fairings and a first article to the Defense Logistics 

Agency Aviation (DLA Aviation), a field activity of the Defense Logistics Agency. 

(R4, tab 1 at l(A), 2of24) The delivery date for the production quantity was 

18 February 2015 (R4, tab 2 at 2of2).2 

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

16 August 2013 (R4, tabs 3, 4). 

2 The order required the delivery of a First Article Unit, 30 days after the production 

quantity. This obvious mistake is not alleged to be relevant to this appeal. 
2. The order incorporated FAR 52.249-8, DEFAULT (FIXED-PRICE SUPPLY AND 

SERVICE) (APR 1984) by reference (R4, tab 1 at 23of24). The clause 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 

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, 

tqe 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 if the 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. 

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

contracting officer (CO), as follows: 

Please cancel the above contract at no cost to Capy 

Machine. 

2 
Our forming vendor can't locate his tooling[.] 

(R4, tab 6) 

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-S227 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 $19,647.00 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 

18 October 2013,3 which includes a one-time tooling charge of $19,647.00 

(compl., attach.). 

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

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

3 The contract having been awarded on 25 September 2013. 

3 
(R4, tab 10) 

You are hereby notified that contract SPE4A6-13-M-S227 

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 

contract. The terminated supplies may be procured against 

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

8. On 19 December 2013, Capy appealed the TCO's final decision to this 

Board where it was docketed as ASBCA No. 59085. 

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 proven that it 

is entitled to judgment as a matter oflaw. Mingus Constructors, Inc. v. United States, 

812 F.2d 1387, 1390 (Fed. Cir. 1987). In this appeal, the government bears the burden 

of proof to justify the default termination. If 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 if 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. 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 its tooling. 

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

again requesting that the government cancel the contract. Capy stated that the reason 

for its request was that the cost of new tooling was $19,647 and that it could not afford 

to perform the contract. 

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 $19,647.00 total which wasn't included on the quote. That is the 

4 
reason for asking to 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 

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ELIZ~ETH A. TUNKS 

Administrative Judge 

Armed Services Board 

of Contract Appeals 

I concur 

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. 59085, Appeal of Capy 

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

Dated: 

5 

JEFFREYD. GARDIN 

Recorder, Armed Services 

Board of Contract Appeals