_____________________________________________________________ RESPONDENT'S MOTION FOR SUMMARY RELIEF DENIED: March 15, 1995 _____________________________________________________________ GSBCA 12961 HERMAN B. TAYLOR CONSTRUCTION CO., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Christina Stone of Ogden, Lieberman, Gaughan & Stone, Houston, TX, counsel for Appellant. Kevin M. Myles, Office of Regional Counsel, General Services Administration, Fort Worth, TX, counsel for Respondent. Before Board Judges BORWICK, NEILL, and HYATT. BORWICK, Board Judge. Respondent moves for summary relief in Herman B. Taylor Construction Co.'s (Herman Taylor Construction's) appeal of respondent's termination for default of its contract. We deny the motion as there are material facts in dispute. Background This appeal arises from the following termination for default decision of the contracting officer: I am in receipt of your letter dated June 9, 1994, whereby you advised me that you are withdrawing your workmen from the subject project. The workmen did not work the night of June 9, 1994. This is an act of repudiation of the contract and is a basis for default termination with common law remedies. The Department of Labor has also noted Davis-Bacon Act violations on the subject contract. In accordance with FAR 52.222-12 - Contract Termination - Debarment (FEB 1988), you are terminated for default. A cure notice for your failure to timely perform and to make progress on the contract was previously sent to you on May 6, 1994. As of this date you have failed to act to correct the concerns expressed therein. In view of the foregoing, we have no alternative but to terminate your right to proceed for default effective June 10, 1994. Appeal File, Exhibit 45. Respondent asserts three bases for the termination for default: (1) anticipatory repudiation, (2) alleged violations of the Davis-Bacon Act, and (3) failure to make progress. Respondent s motion for summary relief asserts that uncontested facts support all three bases of the termination for default. We discuss each in the order set out above. Anticipatory repudiation Respondent s statement of uncontested facts asserts that Herman Taylor Construction stated that it would "shut down" the job if the Government did not "approve the draw " (i.e. payment requests) submitted by appellant, and that appellant did, in fact, close down the job. Respondent s Statement of Uncontested Facts 6, 9, 11. Those facts, argues respondent, are sufficient to prove Herman Taylor Construction s anticipatory repudiation of the contract. Herman Taylor Construction s sole proprietor, Mr. Taylor, has submitted an affidavit contesting respondent s view of the facts. He states that "I have at all times intended to complete the project and complete it in a timely manner." Affidavit of Herman B. Taylor (Taylor Affidavit) (Dec. 21, 1994) at 2. Mr. Taylor explains that while Herman Taylor Construction stated it would have to withdraw workmen from the project due to respondent s failure to pay invoices for work in place that Herman Taylor Construction had installed, at no time did Herman Taylor Construction intend to withdraw from the project. Mr. Taylor says that at the time of the termination letter, Herman Taylor Construction had its heavy equipment, job superintendent, and tools and materials on the job site. Taylor Affidavit at 8. Alleged Davis-Bacon Act violations Respondent s statement of uncontested facts asserts that appellant has been investigated by the United States Department of Labor and has been advised by that agency that it was in violation of the labor laws and regulations of the United States; that appellant was directed to make payment to aggrieved employees; and that appellant stated its intent not to pay. Mr. Taylor disputes these assertions: [Herman Taylor Construction] has at all times during the project paid every worker wages in accordance with the Davis-Bacon Act. . . . . I have never received any notice from the [Department of Labor] that any particular sums were due for any particular violations. I have never received official notice from the [Department of Labor] that [Herman Taylor Construction] had Davis-Bacon Act violations on the project. If I knew what violations I was being charged with, I would produce evidence to refute such charges. If [Herman Taylor Construction] is charged with violations of the Davis-Bacon Act on the project, I will dispute and appeal any such charges, as allowed by law. Taylor Affidavit at 10-11. After the filing of that affidavit, the Department of Labor sent Herman Taylor Construction a notice that it had reasonable cause to believe that Herman Taylor Construction had violated the Davis-Bacon Act on the project and gave Herman Taylor Construction thirty days to request a hearing before the Department of Labor. Letter from the Department of Labor to Herman B. Taylor (Dec. 20, 1994). The record is silent on whether Herman Taylor Construction has exhausted its administrative remedies at the Department of Labor. Failure to timely perform and make satisfactory progress In its statement of undisputed material facts, respondent says that Herman Taylor Construction had not substantially completed the work required on the date the contract was terminated for default, that appellant s subcontractor had not completed the fire alarm system work on the project on the date the contract was terminated for default, and that appellant did not address items mentioned in respondent s cure letter. Herman Taylor Construction disputes that it failed to make progress; Mr. Taylor says that on the date of the termination for default, the project was 96.8 percent completed and that fire protection and electrical work were held up and incomplete due to the Government s failure to provide the necessary design specifications for the electrical graphics panel. Taylor Affidavit at 8-9. Discussion Summary relief is appropriate only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Rule 8(g); Armco v. Cyclops Corp. 791 F.2d 147, 149 (Fed. Cir. 1986.) Furthermore, we are obliged in ruling on motions for summary relief to draw all inferences in favor of the party opposing the motion. Id. A motion for summary relief is proper only on those facts about which we "need not function as an arbiter among differing versions of every factual reality for which evidentiary support has been presented. . . ." Cable Electric Products, Inc. v. Genmark, Inc., 770 F.2d 1015, 1020 (Fed. Cir. 1985). Respondent s motion for summary relief presumes that appellant does not contest the facts supporting the termination for default of this contract. It is obvious from a comparison of respondent s statement of uncontested material facts with Mr. Taylor s affidavit that Herman Taylor Construction contests the material facts which the Government maintains are not in dispute. For anticipatory repudiation, the Government must establish that the contractor indicated positively, definitely, unconditionally, and unequivocally that it intended not to perform. Cascade Pacific International v. United States, 773 F.2d 287 (Fed. Cir. 1985); Ranco Construction Inc. v. General Services Administration, GSBCA 11923, 94-2 BCA 26,678. Here, whether Herman Taylor Construction repudiated its contract is a matter of dispute, with Mr. Taylor denying Herman Taylor Construction s intent to abandon performance of this contract. Mr. Taylor notes that Herman Taylor Construction kept its equipment and supervisory personnel on the job site and withdrew workers only upon the Government s failure to pay progress payment for work done. As there are material facts in dispute as to this aspect of the termination, respondent has not shown it is entitled to summary relief on the basis of Herman Taylor Construction s alleged anticipatory repudiation. Similarly, respondent has not demonstrated that it is entitled to summary relief for the alleged Davis-Bacon Act violations. There are factual disputes whether Herman Taylor Construction violated the Davis-Bacon Act. Herman Taylor Construction denies such violations and Mr. Taylor has stated his intent to contest the preliminary findings of the Department of Labor that such violations have occurred. Furthermore, this contract contained FAR clause 52.222-7 (1988), which requires the contracting officer, on his or her own action or upon the written request of the Department of Labor, to withhold from contractor amounts due under the contract to pay laborers or mechanics the full wages due them under the contract. Appeal File, Exhibit 1, Vol 1, GSA Form 3505, at 2. Construing an earlier contract containing the predecessor clause in the Federal Procurement Management Regulations, one board held: While the Davis-Bacon Act does provide that a violation of its requirements may justify a default termination, the contract clearly gave the CO the discretion to consider withholding contract payment pending resolution of such underpayments by a contractor. We have searched the case law and can find no instance where any court or board has upheld the validity of a default termination where the contracting officer made no attempt whatsoever to confront a contractor with charges of underpayment and to either withhold funds or demand restitution, before so terminating that contractor's right to proceed. Failure to even attempt such a resolution is a failure to exercise the discretion envisioned by the terms of the contract. Corban Industries, Inc., VABCA 2559T, et al., 88-3 BCA 20,843, at 105,426. Here, there is a dispute as to whether Herman Taylor Construction ever violated the Davis-Bacon Act in performing this contract. Further, even if Herman Taylor Construction had violated the Davis-Bacon Act, the present record is not sufficient to determine whether the contracting officer afforded Herman Taylor Construction the opportunity to mitigate alleged violations of the Davis-Bacon Act before basing the default termination on such violations. As for failure to make progress, Herman Taylor Construction maintains that it made satisfactory progress in the face of governmental actions which caused significant delay. Again, there are disputes of material fact which preclude our granting the Government s motion for summary relief on this ground of termination. Decision Respondent s motion for summary relief is DENIED. _________________________ ANTHONY S. BORWICK Board Judge We concur: _________________________ _________________________ EDWIN B. NEILL CATHERINE B. HYATT Board Judge Board Judge