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 92-3 B.C.A. (CCH) P25,211; 1992 ASBCA LEXIS 550

Armed Services Board of Contract Appeals

June 25, 1992

ASBCA Nos. 41573, 42933

Opinion

 [*125598]  Lipman, Administrative Judge: ASBCA No. 41573 is an appeal from the Government's termination for default of this contract for the creation of an aircrew training system for the F-14D aircraft. Also pending are appeals concerning claims for (a) costs resulting from additional work appellant allegedly performed as a result of compensable Government actions and omissions (ASBCA No. 42006), (b) breach of contract (ASBCA No. 42932), and (c) a claim for convenience termination costs resulting from the default termination (ASBCA No. 42933).

In ASBCA No. 41573, appellant has moved for summary judgment on the ground that the default termination followed appellant's filing for protection under Chapter 11 of the Bankruptcy Code, and, therefore, violated the automatic stay provision of that Code. Thereafter, the Government filed a cross motion for summary judgment, based [**2]  on essentially the same undisputed facts set forth in support of appellant's motion and couched on theories to be discussed below.

The parties have also submitted argument on the question of whether ASBCA No. 42933, the appeal regarding the termination for convenience claim, is premature whether or not we determine the default termination to have been validly issued.

Statement of Facts

Appellant was awarded this contract by the Navy on 1 November 1989 at an original price of $ 1,040,565, with a period of performance of 21 months from the date of award.

Section 49.001 of the Federal Acquisition Regulation (FAR), applicable to this contract, provides:

"Effective date of termination" means the date on which the notice of termination requires the contractor to stop performance under the contract. If the termination notice is received by the contractor subsequent to the date fixed for termination, then the effective date of termination means the date the notice is received.

The parties dispute the extent to which each fulfilled its contractual obligations. During the course of performance, the Government expressed displeasure over the pace of performance [**3]  by appellant and one of its subcontractors, and appellant complained of the negative impact on its costs and performance of the Government's failure to make progress payments. Appellant also complained several times of its adverse financial condition, at one point calling it "critical."

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 92-3 B.C.A. (CCH) P25,211 *;  1992 ASBCA LEXIS 550 **

Communications Technology Applications, Inc.

CORE TERMS

termination, default, automatic stay, convenience, contracting, notice, contractor, parties, bankruptcy court, costs, premature, null and void, summary judgment, convert, automatic stay provision, lifted