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 87-2 B.C.A. (CCH) P19,807; 1987 ASBCA LEXIS 838

Armed Services Board of Contract Appeals

April 24, 1987

ASBCA No. 30426

Opinion

OPINION BY ADMINISTRATIVE JUDGE COLDREN ON GOVERNMENT'S MOTION FOR SUMMARY JUDGMENT 

Appellant has taken a timely appeal pursuant to the Contract Disputes Act from a contracting officer's final decision terminating appellant's contract for default for untimely delivery of helical gearshafts. The appellant argues that the termination was improper because it was in violation of the automatic stay provisions of the Bankruptcy Code which are contained at 11 U.S.C. § 362. The Government has moved for summary judgment arguing that the automatic stay provisions are not applicable because appellant was in default prior to the filing of the petition for reorganization under Chapter 11 of the Bankruptcy Code and because appellant has alleged no valid excuse for its untimely delivery. Appellant replied that the automatic stay provision of the Bankruptcy [*2]  Code was controlling and that its failure to make timely delivery was due to the default of its subcontractor which was beyond its control. We reach only the automatic stay argument which we find to be dispositive.

FINDINGS OF FACT 

1. On 9 November 1982, appellant entered into a contract requiring the delivery of 640 helical gearshafts on or before 6 September 1983. The Contract incorporated standard Default clause DAR 7-103.11 (1969 Aug).

2. Two subsequent contract modifications containing additional monetary consideration provided by appellant extended the delivery date to 1 April 1984.

3. Appellant failed to meet the 1 April 1984 delivery date. The Government issued a cure notice to appellant dated 10 May 1984 (Rule 4, tab 20). By a letter dated 18 May 1984, appellant replied to the cure notice by blaming its failure to deliver on mechanical breakdowns and describing its corrective actions (Rule 4, tab 21).

4. The Government, without any consideration from appellant, extended the delivery date to 1 August 1984.

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 1987 ASBCA LEXIS 838 *;  87-2 B.C.A. (CCH) P19,807

Appeal of -- Harris Products, Inc.

Prior History:

In re Harris Products, Inc., 71 B.R. 58, 1987 Bankr. LEXIS 310 (Bankr. N.D. Ohio, 1987)

CORE TERMS

default, automatic stay provision, termination, date of delivery, delivery, notice, commencement of the case, summary judgment, automatic stay, subcontractor, continuation, contracting, executory, cure, summary judgment motion, property of the estate, obtain possession, prior to filing, final decision, matter of law, fail to meet, commencement, gearshafts, untimely, helical, replied, argues, tab