ARMED SERVICES BOARD OF CONTRACT APPEALS

OPINION BY ADMINISTRATIVE JUDGE MCLISH 

 In this appeal, Appellant, Safaa al-Rawaby Company (Safaa) seeks relief under 

the above-captioned contract (Contract), issued by U.S. Special Operations Command 

Central Forward Headquarters (SOCCENT FWD HQ). The Contract required Safaa to 

provide and deliver millable wheat grain to a mill in Syria for use by the Syrian 

Defense Forces, for a firm-fixed price of $1,689,589.20. The Contract required four 

monthly deliveries. The Contract was terminated for default on the ground that Safaa 

failed to make the first required delivery. 

Appellant claims “Compensation for losses” in the amount of $212,313 it 

allegedly incurred due to its “non-purchase of wheat” under a “prior agreement” with 

“the Al-Ubaidi Agricultural Office” (compl. ¶ 1-2). Appellant alleges that the 

non-purchase occurred because the quote from Appellant’s “suppliers went up to 

$6,944,000 which is a 400% increase” and that it was “the reason the first quantity was 

detained for more than a month” (id. at 1). Appellant also requests a “contract 

modification” and “price[] increase” to enable it to “buy wheat as per global market 

prices” and to “[r]eview prices . . . [s]o if our contract [is increased] up to $6,944,000 

which is a 400% increase, we will be successful in delivery” (id. at 1-2). 

Respondent filed a motion for summary judgment on August 10, 2022. 

Appellant did not file an opposition. On January 10, 2023, the Board issued an order 

to show cause, requiring appellant to file either a response to the motion for summary 

judgment or a request for a further extension of time to file a response. The order 

informed appellant that the appeal may be dismissed without further notice if appellant 

did not make one of those filings within 30 days. In an email to the Board on 

January 27, 2023, appellant indicated that it had lost money on the contract and 

Appeal of - )

)

Safaa Al-Rawaby Company ) ASBCA No. 63146

)

Under Contract No. H92277-21-C-0013 )

APPEARANCE FOR THE APPELLANT: Bayrak Abbas Fadel

 General Manager

APPEARANCES FOR THE GOVERNMENT: Caryl A. Potter, III, Esq.

 Air Force Deputy Chief Trial Attorney

Maj James B. Leighton, USAF

 Trial Attorney
2 

therefore could not afford counsel to prepare a response to the government’s motion. 

Appellant stated that it “was waiting for any compensation for this issue.” (Bd. corr. 

email dtd. Jan. 27, 2023)1

We grant the government’s motion for summary judgment.2

STATEMENT OF FACTS FOR PURPOSES OF THE MOTION

The following facts asserted by the government in accordance with Board Rule 7(c) 

have not been disputed by appellant and are therefore accepted as undisputed for purposes 

of deciding the present motion. See Board Rule 7(c)(2). 

1. Effective September 30, 2021, SOCCENT FWD HQ awarded the Contract 

to Safaa requiring the delivery of 7,827,600 kg of millable wheat over a period of four 

months (1,956,900 kg per month) to one specified location in Syria at a price of 

$424,647.30 per month (net price of $1,698,589.20). The initial delivery was due 

between October 19 and 28, 2021. The Contract was a firm-fixed price contract for a 

commercial item and incorporated Federal Acquisition Regulation (FAR) clause 

52.212-4, Contract Terms and Conditions – Commercial Products and Commercial 

Services, by reference. (R4, tab 2 at 1, 4, 10, 13) 

2. Safaa produced a document purporting to be an invoice dated October 28, 

2021, from Al-Ubaidi Agricultural Office for “$212,323 Dollar” for “Fines for not 

buying wheat” addressed to Mr. Bayrak Abbas Fadel (R4, tab 7). 

3. Safaa admits in its complaint that “the first [delivery] quantity was detained 

for more than a month” and that all its “means and solutions . . . in order to avoid 

losses and to supply the contract . . . [were] rejected and [Safaa was] notified to Stop 

Work.” (compl. ¶ 1). 

4. On November 2, 2021, the contracting officer issued a memorandum labeled 

a “Cure Notice” via email “for lack of performance” on the Contract. The attached 

notice stated that Safaa was notified verbally and via email on October 16, 2021, of the 

1

 Although Appellant did not file a formal response to the summary judgment motion, 

we take its recent communications to indicate a desire to continue the appeal. 

(Bd. corr. emails dtd. Jan. 27, 2023, Feb. 13, 2023, and Feb. 26, 2023). In this 

instance, we have chosen to address the merits of the claim rather than dismiss 

it for failure to prosecute. 

2

 The government filed a motion on February 24, 2023, seeking dismissal on the 

ground that appellant had not complied with the Board’s Order of January 10, 

2023. Because we grant summary judgment, we deny the motion to dismiss as 

moot. 
3 

need to complete its contractual obligations. It stated further that Safaa failed to 

deliver the required wheat supplies on October 28, 2021 and warned that the 

Government might terminate the Contract for cause under FAR 52.212-4, unless Safaa 

delivered the wheat within ten days. (R4, tabs 3, 4 at 1) 

5. On November 24, 2021, the contracting officer terminated the Contract for 

cause in its entirety pursuant to FAR 52.212-4(m) for its “default with the terms and 

conditions of the delivery schedule and quantities outlined in the Performance Work 

Statement,” effective that day, and directed Safaa to stop work on the Contract (R4, 

tab 5). Safaa acknowledged the Termination for Cause on November 30, 2021 (id.). 

DECISION 

A. Standard of Review 

Summary judgment is appropriate if there is no genuine issue as to any material 

fact and the moving party is entitled to judgment as a matter of law. First Commerce 

Corp. v. United States, 335 F.3d 1373, 1379 (Fed. Cir. 2003). The party seeking 

summary judgment is initially burdened with establishing the absence of any genuine 

issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All 

significant doubt over factual issues must be resolved in favor of the party opposing 

summary judgment. Mingus Constructors v. United States, 812 F.2d 1387, 1390 (Fed. 

Cir. 1987). A party challenging a motion for summary judgment “must set forth 

specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. 

Co., 391 U.S. 253, 288 (1968)). 

B. The Termination for Default 

A default termination is “a drastic sanction which should be imposed . . . only 

for good grounds and on solid evidence.” J.D. Hedin Constr. Co. v. United States, 

408 F.2d 424, 431 (Ct. Cl. 1969). The government bears the burden of establishing 

that its termination of the contract was proper. Lisbon Contractors, Inc. v. United 

States, 828 F.2d 759, 765 (Fed. Cir. 1987). The contracting officer’s default decision 

must not be arbitrary or capricious or an abuse of discretion. Cent. Co., ASBCA 

No. 62624, 22-1 BCA ¶ 38,057 at 184,790; Darwin Constr. Co. v. United States, 

811 F.2d 593, 597 (Fed. Cir. 1987). The government must reasonably demonstrate 

that the contractor’s deficient performance is the actual cause of the termination and 

not a mere pretext. Goodloe Marine, Inc., ASBCA No. 62106, 22-1 BCA 

¶ 38,053 at 184,776. 
4

Once the government has established that the contractor’s deficient 

performance was the cause of the termination, the burden shifts to the appellant to 

demonstrate that the default was excusable. DCX, Inc. v. Perry, 79 F.3d 132, 

134 (Fed. Cir. 1996), cert. denied, 519 U.S. 992 (1996). At this stage the appellant 

must show that the default was excusable. Id.; Switlik Parachute Co. v. United States, 

573 F.2d 1228, 1233 (Ct. Cl. 1978).

On the undisputed facts, the government has met its burden to show that the 

termination was justified by appellant’s failure to perform. The government may 

terminate the contract for cause “in the event of any default by the Contractor, or if the 

Contractor fails to comply with any contract terms and conditions . . . .” FAR 52.212-

4(m). Safaa defaulted on its obligation to make its first delivery of wheat by 

October 28, 2021. Safaa further failed to deliver the wheat within the 10-day grace 

period provided by the government’s Cure Notice. Safaa was provided with both 

written and verbal warnings of the need to complete deliveries as specified in the 

Contract or risk termination. When it did not make the delivery as required, 

termination was justified.

Safaa also made clear that it would not or could not make any of the other 

required deliveries without an increase in the contract price. Safaa repeatedly 

communicated that it needed a substantial increase in the price to be able to purchase 

the wheat. On October 13, 2021, Safaa informed the government, “so we need 

additional prices to keep going delivery . . . [.]” Safaa repeated that warning on 

October 14, 2021, and, on October 16, 2021, Safaa sent an email to the contracting 

officer stating “[t]he first shipment of 2000 tons will be fixed as mentioned in contract, 

but remaining quantities and shipments will be increase 1$ each kilogram as we deal 

with new suppliers, the first agreement with dealers canceled from their side causes the 

taxes and customs.” (R4, tab 9 at 5-8) Safaa’s announcements to the government that 

it would not deliver the wheat at the agreed upon price constituted anticipatory breach 

and justified termination for default. See, e.g., New Era Cont. Sales, Inc., ASBCA 

No. 56204, 09-2 BCA ¶ 34,147 at 168,795. (“New Era’s 5 July 2006 unequivocal 

refusal to perform under Delivery Order No. 0001A months before the 21 November 

2006 delivery date was an anticipatory repudiation which would have justified its 

termination for default at that time.”)

The government having demonstrated that the termination was justified by 

Safaa’s non-performance, the burden shifts to Safaa to demonstrate that its 

non-performance was excusable. By the terms of the Excusable Delays clause, FAR 

52.212-4(f), the contractor is liable for default unless nonperformance is caused by an 

occurrence beyond the reasonable control of the contractor and without its fault or 

negligence. See also Gargoyles Inc., ASBCA No. 57515, 13 BCA ¶ 35,330 

at 173,413.
5 

Safaa has failed to meet its burden. Safaa alleges in its complaint that “the 

reason the first quantity was detained for more than a month” was because of an 

increase in wheat prices and a fine levied by Safaa’s supplier for Safaa’s non-purchase 

of wheat under an agreement with the supplier (compl. ¶ 1; SOF ¶ 2). The inability to 

finance the increased cost of performance does not excuse default under a firm-fixed 

price contract. A “firm-fixed-price contract provides for a price that is not subject to 

any adjustment on the basis of the contractor’s cost experience in performing the 

contract.” FAR 16.202-1. It “places upon the contractor maximum risk and full 

responsibility for all costs and resulting profit or loss.” Id.; see Lakeshore Eng’g 

Servs., Inc. v. United States, 748 F.3d 1341, 1347 (Fed. Cir. 2014) (“The essence of a 

firm fixed-price contract is that the contractor, not the government, assumes the risk of 

unexpected costs.”); see also New Era Cont. Sales, Inc., ASBCA No. 56661, 

11-1 BCA ¶ 34,738 at 171,023. The Contract did not contain an economic price 

adjustment clause. Accordingly, increases in the price of wheat, even if dramatic, do 

not excuse Safaa’s non-performance. “The normal risk of a fixed price contract is that 

the market price will change.” Seaboard Lumber Co. v. United States, 308 F.3d 1283, 

1295 (Fed. Cir. 2002) (citing N. Ind. Pub. Serv. Co. v. Carbon Cnty. Coal Co., 

799 F.2d 265, 275 (7th Cir. 1986)). 

 Accordingly, there are no disputed issues of material fact, and the government 

is entitled to judgment in its favor as a matter of law. 

CONCLUSION 

 The government’s motion for summary judgment is granted and the appeal is 

denied. 

 Dated: March 15, 2023 

(Signatures continued) 

THOMAS P. MCLISH

Administrative Judge 

Armed Services Board 

of Contract Appeals
6 

I concur

RICHARD SHACKLEFORD

Administrative Judge 

Acting Chairman 

Armed Services Board 

of Contract Appeals

I concur

J. REID PROUTY

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. 63146, Appeal of Safaa 

Al-Rawaby Company, rendered in conformance with the Board’s Charter. 

 Dated: March 16, 2023 

PAULLA K. GATES-LEWIS

Recorder, Armed Services 

Board of Contract Appeals