__________________________________________ DENIED: September 29, 1995 __________________________________________ GSBCA 13052, 13053, 13055 AMERICAN TECHNICAL COATINGS CORP., Appellant, v. GENERAL SERVICES ADMINISTRATION, Respondent. Edward L. Hradesky and Alex Rose of American Technical Coatings Corp., Cape Canaveral, FL, appearing for Appellant. David L. Frecker, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges DANIELS (Chairman), PARKER, and VERGILIO. PARKER, Board Judge. Appellant, American Technical Coatings Corp., timely appealed the General Services Administration's (GSA's) default termination of contract numbers GS-10F-52714, GS-10F-52674, and GS-10F-52688. For each appeal, the parties stipulated to the relevant facts, which are quoted in pertinent part below, and submitted their cases on the record pursuant to Rule 11. We deny the appeals. Findings of Fact The parties have stipulated as follows: The Contracts 1. On July 21, 1993, Appellant was awarded Contract Number GS-10F-52674 for Federal Supply Class 8010, Walkway Compound, specifically, Item 11, NSN 8010-00- 142-6525, Type II - Rough Texture (with grit). This compound was required to be manufactured in accordance with Military Specification MIL-W-5044C, dated August 25, 1970, and Amendment 1 dated June 19, 1994. [This contract is at issue in GSBCA 13053.] 2. On August 3, 1993, Appellant was awarded Contract Number GS-10F-52688 for Federal Supply Class 8010, Paint, Oil and Rubber. The eight (8) items awarded required manufacturing in accordance with Federal Specification TT-P-24E dated 4/2/85, and exception listed, and Federal Specification TT-P-91D dated 2/26/74, and Amendment 2 dated 7/12/83. [This contract is at issue in GSBCA 13055.] 3. On August 23, 1993, Appellant was awarded Contract Number GS-10F-52714 for Federal Supply Class 8010, Sealers and Shellac. Ten items were awarded on this contract. Items 5, 6, and 7 were to be manufactured in accordance with Federal Specification TT-S-179B dated 6/12/75 and Amendment No. 1 dated 6/23/77. Items 8 through 11 were to be manufactured in accordance with Commercial Item Description A-A-1572 dated 4/23/82, and Exception listed in the Item Purchase Description. Items 16 through 18 were to be determined in accordance with Commercial Item Description A-A-8 dated 9/17/79. [This contract is at issue in GSBCA 13052.] 4. Federal Acquisition Regulation (FAR) 52.246-2 (GSA Form 3507)[, which was incorporated by reference in each contract,] requires the contractor to provide and maintain an inspection system covering supplies under this contract. Contract Clause 552.246-70, Source Inspection by Quality Approved Manufacturer, requires that the inspection system comply with Federal Standard 368. Appellant named Xymax Coatings, Inc. as the manufacturer and inspection point for all coatings to be provided. This information was stated in the initial bid and at subsequent GSA/SBA meetings. At the time of the Contract, Xymax had offices in Cape Canaveral which later were moved to Fort Lauderdale, Florida. Appellant relied upon Xymax Coatings['] representation, later memorialized, that "[w]e have had many products tested for U.S. Government agencies, and our products always meet or exceed criteria". Termination of Contract No. GS-10F-52674 (GSBCA 13053) 5. On March 17, 1994, a Quality Deficiency Notice (QDN) was issued by Tadeusz Rajterowski, GSA Quality Assurance Specialist (QAS) against . . . contract GS- 10F-52674. The QDN cited failures in Appellant's inspection system and testing procedures, specifically referencing incomplete test results. The deficiency related to all contracts referenced in GSBCA Nos. 13052, 13053, and 13055. 6. On March 25, 1994, Appellant advised the QAS that it located a testing facility to supplement its test procedures. Test results were expected by March 30, 1994, so the QAS extended Appellant's QDN response time to April 1, 1994. Appellant failed to provide a satisfactory response by the extended deadline. The QAS requested the Contract Administrator to issue a Cure Notice [for contract no. GS-10F-52674] on April 18, 1994. Cure Notice was issued on April 19, 1994, requiring the correction of all inspection system deficiencies by May 2, 1994. 7. On May 2, 1994, the Administrative Contracting Officer received a letter from the contractor dated April 20, 1994, advising that actions to correct testing deficiencies were under way with complete test results anticipated in the near future. 8. On May 3, 1994, the QAS advised the Contract Administrator, via GSA Form 1679, that test procedures provided by Appellant still failed contractual requirements. Appellant was provided a copy of said notice and advised to respond by May 6, 1994. Lacking a timely response, the QAS recommended contract termination [of contract no. GS-10F-52674] on May 6, 1994. 9. On May 9, 1994, Appellant faxed the Contract Administrator a copy of a letter addressed to the QAS, dated April 20, 1994, in which it advised the QAS of its arrangements to retain a testing lab in Pittsburgh, Pennsylvania, to perform partial testing required by the contract. In-house testing was to commence May 11, 1994, with results anticipated by May 27, 1994. To ascertain whether Appellant was making a good faith effort to resolve testing difficulties, the QAS scheduled an inspection at Appellant's plant on or about May 24, 1994. The contractor was advised by letter from the Administrative Contracting Officer (ACO) of the scheduled visit. 10. On May 23, 1994, the ACO requested shipping status of several Delivery Orders which were due for delivery the week of May 23, 1994. On May 26, 1994, QAS advised Contract Administrator that, despite improvement, testing deficiencies remained. The same day, Appellant advised the ACO that batch samples were expected any day, with in-house testing to begin immediately. 11. On June 17, 1994, the QAS reported, via GSA Form 1679, Status Report, that Appellant had failed to correct all testing deficiencies. On June 24, 1994, he further advised that Appellant still lacked complete test results. Four days later, June 28, 1994, Appellant replied that it was working "diligently and urgently to correct the deficiency . . ." and attached a copy of a letter from their supplier. 12. On June 29, 1994, the ACO requested concurrence from the Procuring Contracting Officer (PCO) for contract termination for default due to Appellant's inability to implement and maintain required test procedures and records. Appellant failed to correct the noted test deficiencies within the prescribed time limit. Concurrence was provided on July 14, 1994, by the Paints and Chemicals Commodity Center, and the contract was terminated on July 21, 1994. Termination of Contract Nos. GS-10F-52714 (GSBCA 13052) and GS- 10F-52688 (GSBCA 13055) 13. On May 26, 1994, the QAS advised the Contract Administrator that while additional test records were in place, deficiencies still existed. The same date, Appellant advised the Contract Administrator that he expected batch samples any day with in-house testing to begin immediately. 14. On June 13, 1994, . . . Show Cause Notice[s] . . . [were] issued due to delinquent delivery on Delivery Order No[s]. NWBD838-1[, TXDSV6049-1, AWBE880-1, SWBE890-1, and SWBK123-1 under contract no. GS-10F- 52714, and delivery order nos. FWBD8261, TXDSU21891, TXDXU24051, TXDXU29351, AWBD8421, AWBD8501, TXDXU47761, and TXDXU47771 under contract no. GS-10F-52688.] Appellant replied to the Show Cause Notice[s] on June 20, 1994, re-stating its attempts to establish a compliant inspection system and test results referenced in the QDN referenced above. 15. . . . Cure Notice[s] referencing the deficient inspection system . . . [were] issued on June 16, 1994, with Appellant's response due by June 28, 1994. On June 28, 1994, the contractor replied that he was working "diligently and urgently to correct the deficiency" and attached a copy of a letter from their supplier. Appellant failed to implement the proper test procedures and the contract[s] . . . [were] terminated on July 21, 1994. Correspondence Between Appellant and Subcontractor Concerning the Terminations 16. Appellant subsequently received a written statement from Ron Perkey, the local manager for Xymax at its Cape Canaveral location, on November 4, 1994. He stated that Xymax could perform all requirements of the Contract including testing and packaging. Mr. Perkey acknowledged Appellant's concerns about testing and packaging and said Xymax had reviewed all conditions and could comply therewith. Appellant responded by letter, December 1, 1994, advising Xymax that it was Xymax's negligence and failure to perform that solely resulted in Contract termination. Discussion American Technical Coatings appeals GSA's terminations for default of the three contracts. In doing so, appellant has not challenged GSA's determination that appellant was in default of the contracts; appellant contends only that the defaults were excusable because they were attributable solely to the negligence of its subcontractor, Xymax. An "excusable default" is one which is beyond the control of both the contractor and subcontractor, and without the fault or negligence of either. 48 CFR 52.249-8(c), (d) (1994) (FAR 52.249-8 (c), (d)); Bromion Inc. v. United States, 411 F.2d 1020, 1023-24 (Ct. Cl. 1969). Appellant does not allege, nor does the record otherwise show, that Xymax's delays were beyond its control and without its fault or negligence. Instead, appellant admits that "it was Xymax's negligence and failure to perform that solely resulted in Contract termination[s]." See Finding 16. Since appellant's failure to perform was not excusable according to the Default clause, GSA did not wrongfully terminate the contracts. Decision For the foregoing reasons, these appeals are DENIED. ____________________________ ROBERT W. PARKER Board Judge We concur: ____________________________ _____________________________ STEPHEN M. DANIELS JOSEPH A. VERGILIO Board Judge Board Judge