Appeal of the contracting officer’s termination for cause is denied, where the contractor failed to meet an oft-extended deadline to manufacture and install signs at an Air Force facility, and where previous delays caused by the government were immaterial once the parties agreed to a new extended deadline.
Thunderstruck Signs appealed the contracting officer’s termination for cause of its contract to manufacture and deliver six signs to an Air Force facility, arguing that the government caused the delays that led to Thunderstruck not being able to meet the delivery deadline.
Thunderstruck was awarded a contract to manufacture and deliver signs to an Air Force facility. During performance, the contract suffered delays caused by both parties, and the government ultimately extended the delivery deadline by nearly one year. When Thunderstruck did not meet that deadline, the contracting officer terminated the contract for cause.
Thunderstruck argued that the government had caused the initial contract delay, as well as others, thus excusing Thunderstruck’s default. Thunderstruck also argued that the government’s termination was unreasonable because it had previously extended the delivery deadline to account for delays. Thunderstruck further argued that the government refused to cooperate by accepting delivery of the signs shortly before the deadline, which resulted in Thunderstruck storing the signs at a more-distant location. According to Thunderstruck, the storage requirement subsequently caused difficulties in moving and installing the signs on time.
In response, the Air Force defended its default termination on the ground that Thunderstruck failed to meet a reasonable delivery deadline. ASBCA held that Thunderstruck had defaulted by missing the extended delivery deadline. In considering whether its default was excusable, the board was not persuaded by Thunderstruck’s assertion that previous government delays excused the default. Instead, the board held that the cited delays, all of which occurred before the parties agreed to the final delivery deadline, had no bearing on Thunderstruck’s failure to perform.
The board also held that the new delivery date was reasonable. Thunderstruck initially agreed to the proposed deadline, and did not notify the contracting officer of any concern about its ability to deliver. The board also found the extended delivery date, which provided Thunderstruck two more weeks to install the signs, to be reasonable because the signs had been manufactured and were awaiting installation.
Thunderstruck Signs is represented by Jason Mock of Thunderstruck Signs. The government is represented by Jeffrey P. Hildebrandt and Lt. Col. Nathaniel H. Sears of the United States Air Force.
