(Editor’s Note.  The following illustrates how far a contractor can go without the government being able to assert it is refusing to perform.)

During performance of their roofing contract, numerous issues arose related to scope of work, structural issues, payment for past work and negotiations of reasonable extension whereupon the government suspended the contract. After work was suspended, the government asked Randall if it intended to meet their outstanding contract obligations where Randall responded to the CO in an email saying it is our “intention, upon satisfactory resolution of a number of outstanding issues, to complete performance of this suspended project” where it listed the issues it believed required resolution. On the same day, the CO terminated the contract for default claiming “anticipatory repudiation”, characterizing Randall as indicating it would not complete performance unless certain conditions were satisfied “in advance of initiation of such performance.”  The Board disagreed citing prior cases that held anticipatory repudiation of a contract requires an absolute refusal to perform which was not present here. The Board concluded Randal was not issuing ultimatums but rather was attempting to work with the government to resolve problems (David/Randall Assocs., vs.` Dept. of Interior, CBCA, No. 162).

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