Enola Contracting Services, Inc. ( 2015 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeal of-- )
)
Enola Contracting Services, Inc. ) ASBCA No. 59526)
Under Contract No. W91247-l 1-D-0007 )
APPEARANCE FOR THE APPELLANT: Mr. Allen Clark
President
APPEARANCES FOR THE GOVERNMENT: Raymond M. Saunders, Esq.
Army Chief Trial Attorney
MAJ Jamal A. Rhinehardt, JA
Trial Attorney
OPINION BY ADMINISTRATIVE JUDGE MCILMAIL ON APPELLANT'S
MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS
INTRODUCTION
The Department of the Army (government) contracted with appellant, Enola
Contracting Services, Inc. (Enola), including for the maintenance and repair of real
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 complaint 1 in this appeal does not state facts sufficient to constitute a
cause of action against Enola with respect to six of the terminated task orders, and
requests judgment on the pleadings in its favor with respect to those six task orders. 2
We deny the motion.
DECISION
Enola's motion for partial judgment on the pleadings requests judgment that the
termination of Task Order Nos. 0139, 0164, 0165, 0166, 0167, and 0173 was
wrongful. In reviewing a motion for judgment 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
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As a termination for cause is a government claim, the government filed the
complaint.
2
Appellant's motion for partial judgment 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 of entitlement to relief. Id. The
factual allegations must be enough to raise a right to relief above the speculative level.
Id. This does not require the complainant to set out in detail the facts upon which the
claim is based, but enough facts to state a claim to relief that is plausible on its face.
Id.The government contends that Enola anticipatorily repudiated Task Order
Nos. 0139, 0164, 0165, 0166, 0167, and 0173, justifying their termination for default.
The government may terminate a contract when the contractor has anticipatorily
repudiated the contract. Scott Aviation, ASBCA No. 40776, 91-3 BCA ~ 24,123 at
120, 726. To demonstrate anticipatory repudiation, the government must prove that the
contractor manifested to 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 of real 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 Order Nos. 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 of the jobsites 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 Order Nos. 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 Order Nos. 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 of the jobsites or be 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 Enola points
out (app. mot. at 4), the complaint does not allege task-order specific facts concerning
the performance of Task Order Nos. 0139, 0164, 0165, 0166, 0167, or 0173. (Indeed,
although the complaint quotes documents that address the performance of specific task
orders (comp I. ~~ 12-26), the complaint itself alleges task-order specific facts
regarding the performance of only Task Order Nos. 0145, 0159, and 0160 (id.~~ 22,
24, 25)). Consistent with the standard of review of a motion for judgment on the
pleadings, we draw the reasonable inference that when Enola stated that it would not
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be returning to any of the jobsites or be doing any more work (id.~ 40), it meant that
with respect to all of the task orders referenced in the complaint, including Task Order
Nos. 0139, 0164, 0165, 0166, 0167, and 0173. Of course, we have not found any facts
concerning the performance of any of the task orders at issue in the appeal; that is for
another day.
CONCLUSION
For these reasons, the motion for partial judgment on the pleadings is denied.
Dated: 8 July 2015
TIMOTHYP.
Administrative ud e
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals 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. 59526, Appeal of Enola
Contracting Services, Inc., rendered in conformance with the Board's Charter.
Dated:
JEFFREY D. GARDIN
R.ecorder, Armed Services
Board of Contract Appeals
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