ASBCA 59085

ARMED SERVICES BOARD OF CONTRACT APPEALS Appeal of-- ) ) Capy Machine Shop, Inc. ) ASBCA No. 59085 ) Under Contract No. SPE4A6-13-M-S227 ) APPEARANCE FOR THE APPELLANT: Mr. Salvatore Capacchione President APPEARANCES FOR THE GOVERNMENT: 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 This is an appeal from the default termination of a contract to supply aircraft fairings. The parties have elected to submit the appeal on the record pursuant to Board Rule 11. FINDINGS OF FACT 1. On 25 September 2013, Mr. John Vlachos, general manager of Capy Machine Shop, Inc. (Capy), accepted Order No. SPE4A6-13-M-S227 1 (hereinafter the contract) in the amount of$37,431.60. The contract required Capy to supply 18 aircraft fairings 2 to the Defense Logistics Agency Aviation (DLA Aviation or government). (R4, tab 1 at 1, 5) The delivery date for the first article was 24 April 2014 and the remaining 17 units were due on 18 February 2015 (R4, tab 2 at 2). 2. The contract incorporated FAR 52.249-8, DEFAULT (FIXED-PRICE SUPPL y AND SERVICE) (APR 1984), which provided, in part, as follows: 1 The contract resulted from a Request for Quotations issued by the government on 16 August 2013 (R4, tabs 3, 4). 2 Statement of Facts~ 1 of our decision on the government's motion for summary judgment (Capy Machine Shop, Inc., ASBCA No. 59085, 14-1BCA~35,783), erroneously stated that the contract was for 27 splice fairings. The contract was for 18 fairings, one of which was a first article. (R4, tab 1)  (a)(l) The Government may ... 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; (ii) Makes progress, so as to endanger performance of this contract ... ; or (iii) Perform any of the other provisions of this contract .... (R4, tab 1 at 23) 3. On 18 October 2013, Banner Metalcraft, Inc., Capy's subcontractor, revised its quote to Capy adding a one-time tooling charge of $19 ,64 7 to its quotation (app. 12 March 2015 hr., attachs. 1, 4). 4. On 7 November 2013, Mr. Vlachos requested a no-cost cancellation of the contract, stating as follows: Please cancel the above contract at no cost to Capy Machine. Our forming vendor can't locate his tooling[.] (R4, tab 6) 5. The contracting officer issued the following show cause notice to Capy on 13 November 2013: Because you have indicated in an e-mail dated 07 NOV 2013 citing an inability to locate tooling on contract SPE4A6-13-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 perforin 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 .... 2  If you have any questions, please contact Len DuPilka, Contract Administrator.... (R4, tab 7) 6. On 26 November 2013, Mr. Vlachos responded to the show cause notice as follows: 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. (R4, tab 8) 7. On 12 December 2013, Capy's contract was terminated for default pursuant to FAR 52.249-8: You are hereby notified that contract SPE4A6-13-M-S227 is terminated for default effective immediately.