BOARD OF CONTRACT APPEALS U.S. GOVERNMENT PRINTING OFFICE WASHINGTON, DC 20401 In the Matter of ) ) ARTISAN PRINTING INC. ) Docket No. GPOBCA 15-93 Program D332-S ) Purchase Order 93577 ) DECISION ON MOTION AND CROSS-MOTION FOR SUMMARY JUDGMENT AND ORDER Artisan Printing, Inc. (Appellant or Contractor), 7905 Fernham Lane, Forestville, Maryland 20747, by Notice of Appeal dated May 13, 1993, timely appealed the May 5, 1993, final decision of Contracting Officer Richard Weiss of the U.S. Government Printing Office (Respondent or GPO), terminating the Appellant's contract (Program D332-S, Purchase Order 93577) for default because of its "inability to fulfill the requirements of the contract." Rule 4 File, Tab N.1 On November 16, 1993, the Board conducted a prehearing conference at which a consensus developed that a hearing would be necessary to resolve the issues presented by the appeal. Report of Prehearing Conference Under The Accelerated Procedure, dated February 27, 1994. A hearing was originally scheduled for January 12, 1994, but at the request of the parties it was subsequently rescheduled for March 8, 1994. That hearing was canceled at the Appellant's request when the Appellant advised of its belief that this appeal could be resolved by means of a motion for summary judgment.2 Subsequently, in accordance with the schedule established by the Board, the parties filed the following documents: (1) Appellant's Motion for Summary Judgment (denominated Memorandum of Points and Authorities in Support of Appellant's Motion for Summary Judgment) (hereafter Motion), accompanied by a Statement of Facts as to Which There Is No Material Dispute (hereafter Statement of Facts) and the affidavits of Kenneth R. Wiggins, the Appellant's president (hereafter Wiggins Affidavit), and Jeffrey Crescenze, the Appellant's vice president (hereafter Crescenze Affidavit); (2) Respondent's Opposition to Appellant's Motion for Summary Judgment (hereafter Resp. Op.), accompanied by the declarations of GPO Printing Specialist Betty Shanks (hereafter Shanks Declaration) and Contracting Officer Weiss (hereafter Weiss Declaration); (3) Appellant's Reply to Respondent's Opposition to Appellant's Motion for Summary Judgment (hereafter App. Reply);3 (4) Respondent's Motion for Summary Judgment (hereafter Cross- Motion); and (5) Appellant's Opposition to Respondent's Motion for Summary Judgment (hereafter App. Op.).4 After careful consideration of the parties' positions and of the undisputed facts, the Board DENIES the Motion and GRANTS the Cross-Motion. I. BACKGROUND 1. On March 30, 1993, the Appellant was awarded a contract for Program D332-S, calling for the printing of a publication for the Department of Agriculture entitled "Agricultural Research," a pamphlet that would be published approximately 12 times per year and run from 16 to 32 pages. Work was to be performed under individual print orders issued by the Department and was to commence one work day after the Appellant was notified of the availability of the print order and of the material to be furnished by the Government. Rule 4 File, Tab A. 2. On April 14, 1993, Print Order 80001/ARS was issued to the Appellant for the printing of the May issue of the publication and appropriate material (a disk and other items) was made available. In accordance with the delivery schedule provisions of the contract, the Print Order required the Appellant to furnish random page proofs on April 19 (and the Respondent to return them on April 20), composite cromalin and Dylux proofs by April 23 (returnable by the Respondent on April 27), and the finished product on May 4. Rule 4 File, Tab E. 3. The Appellant did not furnish proofs on April 19, but did so on April 20. Also on April 20, the Respondent, by facsimile transmission and by certified mail, sent the Appellant a "Cure" Notice based on the Appellant's failure to furnish the proofs on April 19. The notice, signed by Contracting Officer Weiss, advised that the failure was "endangering performance of the contract" and that the Appellant had 10 days "to present, in writing . . . the measures adopted which have cured such condition." The notice warned that a failure to cure could result in a termination for default. Rule 4 File, Tab H. The certified mail return receipt showed an April 21 date of delivery and was signed for by an employee of the Appellant. Id. 4. The proofs delivered on April 20 were determined to be unacceptable and were rejected that same day. The Appellant was told that extra time would not be allowed and that it would be required to meet the original schedule. Rule 4 File, Tab G. The proofs were resubmitted on April 21 and accepted by the Respondent on April 23. 5. The Appellant did not furnish cromalin and Dylux proofs on April 23. On April 26, Contracting Officer Weiss sent to the Appellant, by certified mail, another Cure Notice. This notice identified the failure to furnish cromalin and Dylux proofs as endangering contract performance and allowed the Appellant 5 days5 to present measures adopted to cure the problem. Rule 4 File, Tab I. The delivery receipt was returned to the Respondent by the Postal Service, but no delivery date was indicated and the receipt was unsigned. Id. 6. The Appellant delivered the cromalin and Dylux proofs on April 28. These proofs were not acceptable to the Respondent. Rule 4 File, Tab L. On April 30 representatives of the Appellant met with representatives of the Respondent to discuss the matter. Rule 4 File, Tab Mc. At this meeting the Appellant was given a new computer disk with three changes. Complaint at 19; Answer at 2. 7. On May 3 the Appellant delivered the revised proofs. These were also found to be rejectable and "worse than the first set submitted." Rule 4 File, Tab Mc. 8. On May 5, the Respondent terminated the contract for default because of the Appellant's "inability to fulfill the requirements of the contract." Rule 4 File, Tab N. II. POSITIONS OF THE PARTIES A. The Appellant The Appellant asserts that it is entitled to summary judgment because the default was improper as a matter of law. The Appellant states that an appropriate cure notice must precede a termination for default for "failure to make progress," and that this legal requirement is not satisfied here because it never received the second Cure notice and therefore never knew that as of April 26, 1993, it "was in a 'cure' status." The Respondent asserts that the weight of the evidence establishes that the Appellant did receive the second Cure Notice. The Respondent further asserts that in any event the second Cure Notice was not necessary because the initial Cure Notice placed the Appellant on notice "that its poor performance in furnishing acceptable proofs was a condition that must be cured" and because the Appellant thereafter "never cured the problem of late proofs cited in the April 20, 1993, Cure Notice." Resp. Op. at 5, 6. With respect to the Cross-Motion, the Respondent shifts gears somewhat, asserting that it was entitled to immediately default the Appellant for failure to furnish the end product by the required delivery date of May 4, 1993, without having to first issue a cure notice. The Respondent further asserts that it is not required to issue a cure notice when less than 10 days remain before performance is due, and points out that only one day remained before performance was due when it found the proofs delivered on May 3 to be unacceptable. The Appellant asserts that the Respondent's position must fail for four reasons: (1) the termination notice was not based on a failure to make timely delivery, but on the Contractor's inability to fulfill contract requirements; (2) the Respondent's furnishing the Appellant with a new disk on April 30 constituted a constructive change that entitled the Appellant to at least three more days to deliver the final product; (3) as of May 5, the termination date, the Appellant was "ready and waiting to complete performance," and was only awaiting the return of the proofs furnished on May 3; and (4) the Contracting Officer failed to consider factors set forth in the PPR, Chap. XIV, Sec. 1, ¶ 3.c.(3), in particular the time it would take the Appellant to complete performance versus the time it would take to obtain an acceptable product from a reprocurement contractor. App. Op. at 3-4. III. ISSUES PRESENTED 1. On what basis was the Appellant's contract terminated for default? 2. Did the Respondent's furnishing of a second computer disk entitle the Appellant to an extension of the contract delivery date? 3. Was the Contracting Officer's alleged failure to consider the factors set forth in the PPR prior to terminating the contract for default an abuse of discretion? IV. DISCUSSION A. Summary Judgment In deciding motions for summary judgment, the Board is guided by Rule 56 of the Federal Rules of Civil Procedure, pursuant to which courts will grant such motions where the pleadings and supporting documents show that there are no genuine issues as to material facts and that the moving party is entitled to judgment as a matter of law. Composite Laminates, Inc. v. United States, 27 Fed. Cl. 310 (1992); GraphicData, Inc., supra. The burden is on the moving party to demonstrate that it is so entitled. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Where, as here, both parties have moved for summary judgment, the Board must consider each motion, with each party in its capacity as the opponent of summary judgment entitled to all applicable presumptions and inferences. Bataco Ind., Inc. v. United States, 29 Fed. Cl. 318 (1993). B. Termination for Default The rules governing terminations of Federal Government contracts for default emanate primarily from contract "default" clauses and applicable regulations. The "Default" clause in GPO contracts provides that the Respondent, by written notice to the contractor, may terminate a contract in whole or in part if the contractor fails to: (1) deliver the supplies or perform the required services within the time specified or any extensions thereof; (2) make progress, so as to endanger performance; or (3) perform any other contract provision. GPO Contract Terms, Solicitation Provisions, Supplemental Specifications, and Contract Clauses, Contract Clauses, ¶ 20, GPO Publication 310.2, effective December 1, 1987 (Rev. 9-88) (hereafter GPO Contract Terms). A default termination, however, is a drastic action which may be taken only for good cause and on the basis of solid evidence, with the contracting agency having the burden of proving the basis for the default but with the contractor having the burden of showing that its failure to perform was excusable. Venture, Ltd., GPOBCA 01-96 (September 26, 1997), slip op. at 13-14, 1997 WL 742427; Big Red Enterprises, GPOBCA 07-93 (August 30, 1996), slip op. at 24-25, 1996 WL 812960; Vanier Graphics, Inc., GPOBCA 12-92 (May 17, 1994), slip op. at 47-48, 1994 WL 275102. When a default termination is based on untimely performance, the contractor challenging the termination must meet a four-fold burden of proof. It must: (1) prove affirmatively that the delay was caused by or arose out of a situation which was beyond the contractor's control and that it was not at fault or negligent; (2) show that performance would have been timely but for the occurrence of the event which is claimed to excuse the delay; (3) show that it took every reasonable precaution to avoid foreseeable causes for delay and to minimize their effect; and (4) establish a precise period of time that performance was delayed by the causes alleged. Venture, Ltd., supra; Gold Country Litho, GPOBCA 22-93 (September 30, 1996), slip op. at 16-17, 1996 WL 812956 and cases cited therein. It is also well established that because the "Default" clause provides that the Government "may" terminate for default when one of the specified grounds for default is present, a default termination is a discretionary act subject to challenge as an abuse of discretion. Schlesinger v. United States, 390 F.2d 702 (Ct. Cl. 1968); Darwin Constr. Co. v. United States, 811 F.2d 593 (Fed. Cir. 1987); Big Red Enterprises, supra. The PPR, Chap. XIV, Sec. 1, ¶ 3.c.(3), also sets forth various factors for Respondent's contracting officers to consider in determining whether to terminate a contract for default. Where a default termination is based on a failure to make timely delivery, no prior notice to the contractor is necessary. Where the termination is based on a failure to make progress or to perform in accordance with any other contract provision, the Respondent must notify the contractor of the failure and allow a reasonable period for the contractor to cure the failure. The notification, through a "Cure Notice," is to concisely set forth "the provisions of the contract which the contractor has failed to meet or a summary of the findings which have demonstrated that the contractor has failed to make acceptable progress, PPR, Chap. XIV, Sec. 1, ¶ 3.c.(2), and normally is to allow at least a 10- day cure period, although the contracting officer may determine that a shorter period is reasonable under the circumstances. GPO Contract Terms, Contract Clauses, ¶ 20; PPR, Chap. XIV, Sec. 1,¶ 3.c.(2). However, "[i]f the time remaining in the contract delivery schedule is not sufficient to permit a realistic 'cure' period, the 'Cure Notice' shall not be issued." PPR, Chap. XIV, Sec. 1, ¶ 3.c.(2). Instead, "where practicable," a "Show Cause" notice should be issued that gives the contractor an opportunity to explain its failure before any termination for default is made. PPR, Chap. XIV, Sec. 1, ¶ 3.c.(1). C. Appellant's Motion There are two critical elements to the Appellant's summary judgment motion. One is the assertion that the default termination was for failure to make progress. The other is that the Appellant did not receive the second Cure Notice, which the Appellant views as a prerequisite to a valid default termination. Interestingly, while the Respondent, in its Cross-Motion, asserts that the termination was based on the Appellant's failure to deliver the finished product by the contract due date so that a Cure notice was not required, it does not make that argument in its Opposition to the Motion, relying instead on a presumption of delivery of the mailed second Cure Notice and the argument that in any case the first Cure Notice was sufficient to support the default termination. Nonetheless, before the Board can grant summary judgment, it must determine that the Appellant, as the moving party, is entitled to summary judgment as a matter of law. GraphicData, Inc, supra. Therefore, the initial question for resolution is whether the Appellant is correct when it states that the termination was for failure to make progress. The May 5, 1993, letter from Contracting Officer Weiss notifying the Appellant that the contract was "hereby terminated for default" did not refer to a failure to make progress. It also did not refer to either of the other two bases for default set forth in the "Default" clause, i.e., a failure to deliver within the time specified or a failure to perform any other contract provision. It set forth the basis for default as the "inability to fulfill the requirements of the contract." Rule 4 File, Tab N. Despite the literal disconnect between the language of the "Disputes" clause and the language used in the termination letter, the undisputed facts of record and a proper understanding of the "Disputes" clause establish that the termination was based not on a failure to make progress, but on the first basis for default set out in the clause-the failure to deliver within the time specified. The failure to make progress basis for default is used in connection with circumstances that arise before the specified delivery date that endanger the completion of performance by that date. See John Cibinic, Jr. and Ralph C. Nash, Jr., Administration of Government Contracts 929, 932-33 (Third ed. 1995) (hereafter Cibinic & Nash, Administration); John Cosgrove McBride, Government Contracts § 35A.40 (Rev. 1997); Walter F. Pettit, Carl L. Vacketta, and David V. Anthony, Government Contract Default Termination 4-2 (1991); Composite Laminates, Inc. v. United States, supra, at 317. A cure notice based on the failure to make progress is intended to spur the contractor into taking steps to remedy the lack of progress by a certain date so that contract performance will no longer be endangered. See Composite Laminates, Inc. v. United States, supra, at 317. Obviously, once the contract delivery date has passed without delivery, the Government is no longer concerned about a failure to make progress that is endangering performance.6 Performance at this point is no longer endangered-it has failed. Thus, if the Government decides that default termination is now warranted, it cannot be on the basis that a failure to make progress is endangering contract performance. The obvious basis for default, and indeed the only one in the Default clause, that is applicable to situations where the delivery date has passed is the first basis for termination set forth in the clause-failure to make timely delivery.7 By its own terms, it applies where the contractor has failed to deliver by the time specified, and it gives the Government the right to terminate immediately without the need for a cure notice. De Vito v. United States, 413 F.2d 1147 (Ct. Cl. 1969); National Farm Equipment Co., GSBCA 4921, 78-1 BCA ¶ 13,195; K.C. Printing Co., GPOBCA 02-91 (February 22, 1995), slip op. at 13, 1995 WL 488531. The fact that cure notices based on a failure to make progress had been issued previously does not limit the Government to defaulting the contractor for that reason should a default termination become necessary; if the contractor, for failure to make progress or for some other reason, fails to deliver by the required date8 the Government properly may default on the basis of a failure to timely deliver. See, e.g., DBA Sys., Inc., ASBCA 34664, 89-1 BCA ¶ 21,465 (contractor terminated under the first basis for default-failure to make timely delivery-following cure notice based on failure to make progress). The Appellant's contract established a date of May 4, 1993, for delivery of the final product. The contract was terminated for default on May 5, one day after the established delivery date. On these facts and in accordance with the discussion above the Board concludes that the Respondent's imprecise termination letter defaulting the Appellant because of its "inability to fulfill the requirements of the contract" was based not on a failure to make progress or on a failure to "cure" itself of a failure to make progress, but on the Appellant's failure to deliver on time. See Hurt's Printing Co., Inc., GPOBCA 27-92 (January 21, 1994), slip op. at 8, 1994 WL 275098 (where the Board found it clear that a default for "inability to produce this job according to the specifications" was actually a default for failure to make timely delivery).9 That being so, the Appellant's failure to receive the Cure Notice of April 26, 1993 (which in any event dealt with the Appellant's initial failure to timely deliver cromalin and Dylux proofs, not with the subsequent determination that the proofs eventually delivered were unacceptable or the Appellant's ultimate failure to deliver the final product) cannot invalidate the default termination. Accordingly, the Appellant's Motion is denied.10 D. Respondent's Cross-Motion The denial of the Appellant's Motion does not compel the granting of the Cross-Motion; the Respondent must independently satisfy the requirements for summary judgment, i.e., it must establish that there are no genuine issues as to the material facts on which the Cross-Motion relies and that the Respondent is entitled to judgment as a matter of law. See Vanier Graphics, Inc., supra, at 47. The Respondent seeks summary judgment on the basis that "Artisan failed to deliver the finished product by the contractually established date of May 4, 1993." Cross-Motion at 3. It is not disputed that Artisan did not deliver the finished product by May 4, 1993, and, as the Board concluded above, the termination was based on that failure to deliver. The Respondent thus has met its burden to establish that it had a legitimate basis for the default. A termination for default for failure to meet the delivery date specified in the contract cannot be upheld, however, if the contractor was entitled to additional time. Kings Point Mfg. Co., Inc., ASBCA 27201, 85-2 BCA ¶ 18,043; Wise Instrumentation and Control, Inc., NASA BCA 673-7, 1072-12, 75-2 BCA ¶ 11,478. It is the contractor's burden to show that it was entitled to additional time or that the default is otherwise excusable. K.C. Printing Co., supra; Woodside Screw Machine Co., Inc., ASBCA 6936, 62 BCA ¶ 3308. The Appellant, asserting that the delivery date was or should be extended, offers three different bases for that assertion. First, in support of its own Motion, it states that its delivery of cromalin and Dylux proofs on April 28, 1993, had the effect of extending the final product delivery date to May 7. Statement of Facts at 3. Second, it asserts that the furnishing of a new computer disk on April 30 "required Appellant to perform work which was not contemplated by Appellant and which caused Appellant's performance delay." Complaint at 8. Third, it asserts that the Respondent's failure to timely provide Government-furnished property, failure to timely return proofs, and furnishing of a new computer disk constituted constructive changes to the contract. Complaint at 8. The first assertion does not involve any genuine issue of fact. The original contract schedule allowed seven workdays from the contractor's furnishing of cromalin and Dylux proofs (scheduled for April 23) to the final product delivery on May 4. It is undisputed that the Appellant, through no fault of the Respondent, failed to deliver the cromalin and Dylux proofs on April 23 and did not do so until April 28. There is nothing in the contract that has the effect of extending the due date for final product delivery because of the contractor's earlier delay in furnishing the required proofs. To the contrary, the contract states that "[a]dherence to this schedule must be maintained" and that if revised proofs are required because of contractor errors, "[n]o extra time can be allowed for this reproofing; such operations must be accomplished within the original production schedule. . . ." Rule 4 File, Tab A.11 Thus, the Appellant's position in essence is that because the contract contained a schedule for pre-publication deliveries with specific time periods between those delivery dates and the date for final product delivery, its tardiness in providing the required pre- publication proofs allows it to be late in furnishing the final product. The pernicious effect of such a notion on Government contracts, in which time is usually of the essence, De Vito v. United States, supra; see generally Cibinic & Nash, Administration at 909-11, is too obvious to warrant further comment. The Board has no difficulty in concluding that the Appellant's failure to deliver cromalin and Dylux proofs on time did not give rise to an extension for delivery of the final product. The assertions regarding the respondent's failure to timely provide Government-furnished property and to timely return proofs also do not raise any genuine factual issues. The facts are undisputed: (a) the original computer disk and other items were furnished to the Respondent on April 14, the day the Print Order was issued; and (b) the random proofs delivered by the Appellant on April 20 were rejected and returned that same day, while the cromalin and Dylux proofs submitted on April 28, which were also unacceptable, were discussed with the Appellant on April 30. The revised cromalin and Dylux proofs furnished by the Appellant on May 3 were, "worse than the first set," Rule 4 File, Tab Mc, led to the default termination two days later. There is nothing in these facts to support the assertion that the Respondent failed to timely return proofs. The contract allowed the Respondent to hold the random proofs for one day and the cromalin and Dylux proofs for two days. The Respondent adhered to this schedule. As for the alleged untimely furnishing of Government property, the Appellant states, and the Respondent admits, that the Appellant had been told by a Department of Agriculture representative that the Government-furnished property would be provided by April 9. Complaint at 3; Answer at 3. The Print Order, however, was not issued until April 14, and the Government had no obligation to furnish the disk or other material prior to issuance of the Print Order. In this regard, the contract schedule is based on the availability to the contractor of both the Government-furnished property and the Print Order, with the Appellant's obligation to perform in accordance with the contract schedule commencing when both the property and the Print Order were available to it. The Board fails to see how the furnishing of the Government property on April 14 could be viewed as untimely. The remaining assertion regarding the second computer disk, if supported, could provide a basis for defeating the Cross-Motion, since if what was on this disk had the effect of changing the Government's original requirements and causing the Appellant to have to devote extra time to meet those changed requirements or in some other way causing the Appellant performance delay the Appellant would be entitled to an extension of the contract delivery date. See GPO Contract Terms, Contract Clauses, ¶ 12(c) ("In the event a delay is caused by any action of the Government . . . the . . . schedule will be extended automatically by the total number of workdays that work was delayed PLUS 1 workday for each day of delay . . . ."). The Appellant, however, has provided absolutely no support for its assertion. In summary judgment proceedings the parties are required to satisfy their respective burdens by going beyond the basic pleadings (". . . the purpose of the summary judgment procedure is to cut through the pleadings and distinguish substantial issues from phantom issues raised only in the pleadings." RBP Chemical Corp., GPOBCA 4-91 (January 23, 1992), slip op. at 26, 1992 WL 487876), typically by providing or relying on affidavits or other evidentiary support in the record. Vanier Graphics, Inc., supra; RBP Chemical Corp., supra. In the cited cases, for example, the parties provided statements or counter statements of fact that were supported by affidavits of knowledgeable individuals. In this case the issue is dealt with almost exclusively through the pleadings, with no supporting affidavits or other probative documents. The Appellant recites in its Complaint that the disk was furnished and alleges constructive change and performance delay as a result, Complaint at 5, 8, while the Respondent replies that the changes on the disk "were minor changes to the text, not to the illustrations." Answer at 2. Further, according to the pleadings, when the Appellant's representative, Howard Harrison, met with the Respondent after delivery of the revised cromalin and Dylux proofs on May 3, the Respondent asked about changes in the proofs and why they were worse than the earlier proofs, Answer at 3, and the Appellant's representative "explained that changes frequently occur when a printer receives a new computer disk from the customer." Complaint at 5-6. The only mention of this matter outside of the pleadings comes from the Appellant's reiteration, when opposing the Cross-Motion, of its assertion that the furnishing of the new disk "was a constructive change that gave rise to a delivery schedule extension." App. Op. at 1. There is, however, no affidavit from Mr. Harrison supporting what is alleged in the Complaint, and there is nothing in the affidavits of Mr. Wiggins12 and Mr. Crescenze that provides any support for the assertions in the Complaint and App. Op. that the furnishing of the second disk constituted a constructive change. There is also nothing in the Weiss Declaration or the Shanks Declaration that would provide support for the assertion, and neither computer disk is part of the record. Thus, the record contains nothing of probative value regarding the exact nature of the three changes on the computer disk, what effect those changes had or should have had on production time, what general impact on proof production there was from the furnishing of the new disk, and what effect, if any, that impact had on the Appellant's ability to deliver. Where a non-moving party bears the burden of proof, as the Appellant does here with respect to its entitlement to a delivery date extension, it must by affidavits or by depositions and admissions on file make a showing sufficient to establish the existence of the elements essential to that party's case. Celotex Corp. v. Catrett, supra; Childers v. Joseph, 842 F.2d 689 (3rd Cir. 1988); James P. Collier, dba Jimbob Logging, AGBCA 88-118-3, 89-1 BCA ¶ 21,561. That means the Appellant must introduce or point to some evidence on the record that would arguably show that the furnishing of the second computer disk was a constructive change and caused performance delay. The Appellant has not done that; it has simply asserted constructive change and performance delay without providing or demonstrating the existence of a scintilla of factual support for the assertion. Conclusory allegations, without an offer of specific facts to show the existence of a genuine issue for resolution, will not defeat a motion for summary judgment. Spread Information Sciences, Inc., ASBCA 48438, 96-1 BCA ¶ 27,996. Consequently, although the burden on a non-moving party in a summary judgment proceeding is minimal, The George Marr Co., GPOBCA 31-94 (April 23, 1996), slip op. at 37, 1996 WL 273662 (the burden is "not a heavy one"), the Appellant has not met its burden on this issue. The Appellant asserts that the Cross-Motion must fail because as of May 5, 1993, it was ready and waiting to complete performance, but in effect was kept from doing so by the Respondent's failure to return the proofs furnished on May 3. The Appellant further states that the Respondent's failure to "expedite" its review and return of the proofs is inconsistent with the idea that time was of the essence in this contract. App. Op. at 3. What the Appellant overlooks, however, is that the Respondent not only had the right to keep the proofs for two days before returning them, but considered those proofs to be unacceptable and worse than what had been provided previously, a determination not challenged by the Appellant, and that as a result the Respondent lost confidence in the Appellant's ability to perform. Rule 4 File, Tab Mc. Under the circumstances here, the Respondent simply had no duty to return the proofs to give the Appellant still another chance to perform the work notwithstanding the Appellant's state of readiness. See Hurt's Printing Co., supra; see also Johnson & Gordon Security, Inc., GSBCA 7804, 87-3 ¶ 20,074 and The Bendix Corp. Environmental Sciences Division, GSBCA 4352, 77-2 BCA ¶ 12,656 (no need to perform a futile act giving contractor further opportunity to perform when it is clear that contractor cannot perform). The Appellant's final challenge to the Cross-Motion is that the Respondent did not comply with its regulations, PPR, Chap. XIV, Sec. 1, ¶ 3.c.(3), which provide that the contracting officer "shall consider the following factors in determining whether to terminate a contract for default," and then set forth eight factors, including "(iv) [t]he urgency of the need for the supplies . . . and the period of time which would be required to obtain sources as compared with the time in which delivery could be obtained from the delinquent contractor." The Appellant states that "the record is devoid of any discussion of the date by which a reprocurement contractor could deliver a compliant product." App. Op. at 4. A failure to comply with these regulations, which mirror Federal Acquisition Regulation § 49.402-3, is a matter to be considered in determining whether the contracting officer abused his discretion in terminating a contract for default. Shepard Printing, GPOBCA 23-92 (April 29, 1993), slip op. at 26, 1993 WL 526848; Graphics Image, Inc., GPOBCA 13-92 (August 31, 1992), slip op. at 27, 1992 WL 487875; Darwin Constr.. Co., Inc., supra. In Graphics Image, Inc., supra, the Board concluded, under the circumstances of that case, that the contracting officer had acted arbitrarily in terminating a contract for default without having considered any of the factors set forth in the regulation. A failure to take all of the factors listed into account before terminating does not, however, automatically negate the validity of the default termination as they are not "prerequisites" to a valid termination. DCX v. Perry, 79 F.3d 132 (Fed. Cir.), cert. denied, 117 S. Ct. 480 (1996). "Although compliance or noncompliance with [the regulations] may aid . . . in determining whether a contracting officer has abused his discretion . . . the regulation does not confer rights on a defaulting contractor. A contracting officer's failure to consider one or more of the [regulatory] factors therefore does not require that a default termination be converted into a termination for convenience." 79 F.3d at 135. The regulatory factors "merely alert the contracting officers to areas of concern to possibly consider" and all factors need not be specifically considered. Michigan Joint Sealing, Inc., ASBCA 41477, 93-3 BCA ¶ 26,011 at 129,324, aff'd, 22 F.3d 1104 (Fed. Cir. 1994) (Table). In Shepard Printing, supra, we recognized that a contracting officer's failure to consider the regulatory factors was not "an automatic ticket to a termination for convenience," stating that the contractor must show that the failure was harmful error such that the contract might not have been terminated for default if the contracting officer had considered those factors. Slip op. at 26-27. A contracting officer, however, need not consider the factor relied on by the Appellant-the time required for a reprocurement contractor to complete the contract versus what the delinquent contractor could do-where the contractor's tardy performance has led to the loss of confidence in that contractor's ability to perform. AFTT, Inc., VABCA 3783, 94-3 BCA ¶ 27,014; see Jonatech, Inc., ASBCA 46088, 94-3 BCA ¶ 27,248 (granting summary judgment for the Government and holding that the contractor did not meet its burden to support its allegation of abuse of discretion merely by alleging the contracting officer's failure to consider that factor). Here, the Appellant was defaulted after it failed to meet contract schedules, failed to furnish acceptable proofs, and failed to deliver a final product by the contract delivery date, leading the Contracting Officer to have no confidence that the Appellant's "performance will improve." Rule 4 File, Tab Mc. There is also evidence in the record that the Contracting Officer considered the procurement to be urgent. Rule 4 File, Tabs Mc and O. Under the circumstances, the allegations that the Contracting Officer failed to consider the factors set forth in the PPR is not sufficient to defeat the Respondent's Cross-Motion. Jonatech, Inc., supra. V. ORDER For the foregoing reasons, the Board concludes that the Appellant is not entitled to summary judgment as a matter of law. The Board further concludes that the Respondent is so entitled, the Appellant having failed to meet its burden in opposing the Cross- Motion. Accordingly, the Appellant's Motion is DENIED, and the Cross-Motion is GRANTED. It is so Ordered. February 6, 1998 Ronald Berger Ad Hoc Chairman GPO Board of Contract Appeals 1 The Contracting Officer's appeal file, assembled pursuant to Rule 4 of the Board's Rules of Practice and Procedure, was delivered to the Board on July 7, 1993. It will be referred to as the Rule 4 File, with an appropriate Tab letter also indicated. The Rule 4 File consists of 19 documents identified as Tab A through Tab R. 2 Although the Board's rules do not explicitly provide for a summary judgment procedure, the Board routinely entertains summary judgment motions. See Graphicdata, Inc., GPOBCA 35-94 (June 14, 1996), slip op. at 47, 1996 WL 812875, and cases cited therein. 3 Although this document was not identified in the schedule established by the Board, the Board, upon the Appellant's request and without objection from the Respondent, allowed the filing. Order Granting Appellant's Request to File Reply Brief To Respondent's Opposition to Appellant's Motion for Summary Judgment. 4 The record also includes the Complaint dated July 8, 1993, and the Answer dated August 18, 1993. 5 Unlike the Executive Branch regulations which require a cure period of at least 10 days, see Federal Acquisition Regulation § 49.402-3(d), the Respondent's rules allow periods of less than 10 days. See Printing Procurement Regulations (hereafter PPR), GPO Pub. 305.3 (Rev. 10-90), Chap. XIV, Sec.1, ¶ 3.c.(2). 6 For a decision holding that failure to make timely delivery and failure to make progress are not mutually exclusive, see Finast Metal Prods., Inc., ASBCA 19860, 77-1 BCA ¶ 12331, where the Armed Services Board of Contract Appeals held that a contractor who had failed a first article requirement and had other progress failures could be defaulted on both bases. See also Industrial Metal Fabricating Co., Inc., ASBCA 11170, 70-2 BCA ¶ 8533, also involving a failure to deliver preproduction items, where an agency based a default on both grounds. 7 The third basis in the clause-failure to perform any other contract provision-is also intended for application in situations arising prior to delivery. According to Professors Nash and Cibinic, "[t]he significance of the 'other provisions' language in the default clause is to give the Government the right to terminate prior to delivery date without the necessity of establishing a progress failure." Cibinic & Nash, Administration 936 (emphasis added). 8 This should be after the expiration of the cure periods, as cure periods are not to be provided where the time remaining until delivery is not sufficient to allow a realistic cure period. PPR, Chap. XIV, Sec. 1, ¶ 3.c.(2). 9 For other cases where the Respondent's contracting officers have used this or similar language to default contractors for failure to deliver on time, see, e.g., Rose Printing, Inc., GPOBCA 32-95 (December 16, 1996), slip op. at 10 ("inability to perform"), 1996 WL 812880; Gold Country Litho, supra, at 8 ("inability to perform per specifications"); Asa L. Shipman's Sons, Ltd., GPOBCA 06-95 (August 29, 1995), slip op. at 7 ("inability to perform the requirements of the contract"), 1995 WL 818784; International Lithographing, GPOBCA 1-88 (December 29, 1989), slip op. at 10 ("inability to perform within the schedule of the contract"), 1989 WL 38498. See also Univex International, GPOBCA 23-90 (July 31, 1995) slip op. at 20, 1995 WL 112554, where the Board had no difficulty in determining that a default termination based on a "failure to print an acceptable product" also was a default for failure to deliver by the time specified. 10 In reaching its decision, the Board recognizes that, while the Appellant made no mention of an extended delivery date in its Motion or App. Reply, it did state in its Statement of Facts that based on the April 28, 1993, delivery of the cromalin and Dylux proofs, "the final product was due on May 7, 1993," and did allege in its Complaint that at the time of termination the "delivery date had not yet passed," that the delivery of a new computer disk on April 30, 1993, "caused Appellant performance delay," and that furnishing the disk constituted a constructive change. The Appellant also raised the constructive change argument in opposing the Cross-Motion, asserting that the change entitled it to at least three additional days to perform. See App. Op. at 3. The Appellant's pleadings and assertions, however, do not clearly establish that there was or should have been an extension to the delivery date. While the Appellant's president referred in his affidavit to a "deadline of May 7, 1993," Wiggins Affidavit at 2, there is nothing further to indicate why or how the delivery deadline had become May 7 instead of May 4. On the other hand, in his declaration the Contracting Officer unequivocally stated that he did not grant any extensions and that the Appellant had been advised that there would be no extensions. Weiss Declaration at 1. In short, the record falls far short of establishing that the contract deadline had changed. Particularly in this summary judgment proceeding, where facts not firmly established are construed against the moving party, Vanier Graphics, Inc., supra, at 32-37; RBP Chemical Corp., GPOBCA 4-91 (January 23, 1992), slip op. at 23-24, 1992 WL 487876, for purposes of the Motion the Board cannot view the contract delivery date as anything other than May 4, 1993. Moreover, the default termination is necessarily based on what the contracting officer believes the delivery date to be; consequently, even if the Appellant establishes, subsequent to the default, that it was entitled to an extension of the delivery date, that would have no effect on the basis for the default. 11 The Contracting Officer also states that he "did not authorize any extension and [that] Artisan's delinquencies did not entitle [it] to unilaterally extend the schedule." Weiss Declaration. 12 The affidavit does state that "[a]s a result of [the April 30] meeting, I felt that Artisan could readily correct all of the problems . . . and . . . that we could do so within our deadline of May 7, 1993." Wiggins Affidavit at 2. There is nothing in this affidavit to explain the basis for the "deadline of May 7"; there is also no mention of the new disk or any problems or delays that the disk might engender. Accordingly, and since this affidavit was furnished along with the Motion and Statement of Facts, the deadline date referred to by Mr. Wiggins would seem to be based on Artisan's tardy delivery of cromalin and Dylux proofs on April 28 rather than on any constructive change resulting from the furnishing of the new disk.