BOARD OF CONTRACT APPEALS U.S. GOVERNMENT PRINTING OFFICE In the matter of ) ) the Appeal of ) ) FOTORECORD PRINT CENTER ) Docket No. GPOBCA 09-98 ) Program 6204-S ) Purchase Order X-7689 ) For the Appellant: Vincent J. Finoli, Esq., Stewart, McCormick, McArdle & Sorice, Greensburg, Pennsylvania. For the Respondent: Joyce B. Harris, Esq., Assistant General Counsel, U.S. Government Printing Office. Before KERRY L. MILLER, Administrative Judge. DECISION Fotorecord Print Center, (Fotorecord) appeals the Contracting Officer's decision to terminate its printing contract for default, after Fotorecord elected to discontinue performance. For the reasons that follow, Respondent's motion for summary judgment is granted and the appeal is DENIED. FINDINGS OF FACT 1. On October 10, 1997, the U.S. Government Printing Office (GPO) Pittsburgh Satellite Printing Procurement Office (SPPO) issued an Invitation for Bids (IFB) for Program 6204-S, a one- year, single-award, requirements contract for the printing of pamphlets for the U.S. Department of Interior. Rule 4 File, Tab B at 1. Under the terms of the IFB, the awardee would be required to print, bind, pack and deliver 300 to 3,500 copies of pamphlets containing from 4 to 32 pages per order. The IFB estimated that 440 orders would be placed during the contract year, with up to 8 orders placed in a single day. Id. at 4. 2. The normal trim size listed in the IFB for pamphlets printed under Program 6204-S was 8-1/2 by 11 inches. Id. However, the IFB also alerted bidders that: Approximately 340 orders (4, 8, and 12 page self cover publications) will require folding an average of 700 copies to 140 x 216 mm (5-1/2 x 8-1/2"). Folded pieces must then be sealed with a wafer seal on the 216 mm (8-1/2") side. Rule 4 File, Tab B at 5. 3. The IFB required bidders to submit prices for three contract line items. The first two line items covered the printing, binding and delivery of the "complete product." The third contract line item was for "Additional Operations," described as: "Additional folding (4, 8 or 12 page products), including wafer sealing." Rule 4 File Tab B at 9. 4. Appellant's net bid of $71,318.60 was the lowest received in response to the IFB. The only other bidder's price was $75,457.80. The lowest bid received for this contract the previous year was $70,682.04. Rule 4 File, Tab F. 5. The GPO's Pittsburgh SPPO conducted an on-site pre-award survey to determine if Appellant had the ability to perform the contract. Rule 4 File, Tabs G, H. The pre-award survey officer recommended that Appellant be awarded Program 6204-S. Rule 4 File, Tab G. 6. After first receiving the concurrence of the GPO's Contract Review Board, the Contracting Officer awarded Program 6204-S to Appellant on November 28, 1997. Rule 4 File, Tabs I, J. The contract term began December 1, 1997. Rule 4 File, Tab B at 1. On December 3, 1997, the Government issued 4 print orders (Nos. 80000, 80002, 80003 and 80004) to Appellant calling for the printing of pamphlets. The next day, the Government issued an additional 5 print orders (Nos. 80005, 80006, 80007, 80008 and 80009). Complaint, Exhibit C. 7. On December 4, 1997, Appellant's owner, Paul Nickoloff, visited the Pittsburgh SPPO seeking advice on how to submit bills to the GPO for payment under the contract. During that visit, Mr. Nickoloff learned that his interpretation of the services Appellant could charge for under the contract was different from the GPO's interpretation. Complaint ¶ 8. Mr. Nickoloff believed he could bill under the "additional operations" line item for folding each printed sheet from 17 x 11 inches to 8-1/2 x 11 inches. The GPO's position was that the cost of folding the pamphlets to 8-1/2 x 11 inches was not an "additional operation" and should have been included in Appellant's "Running per 100 copies" contract line item price. Under the GPO's interpretation, only the fold to 5-1/2 x 8-1/2 inches was deemed to be an "additional operation." 8. Later that day, Mr. Nickoloff faxed a letter to the Pittsburgh SPPO stating: I regretfully must inform you I am not able to perform the work on Program Number 6204-S. The prices presented to you for this particular Program were in error due to my misunderstanding of pricing structures and estimating processes of the G.P.O. After further review of the pricing after our meeting today, I realized my pricing error, (the difference in charges for folding and stitching, I thought "additional operations" included the fold to 8 1/2 x 11 and the stitching operations in addition to the mailing fold and the tabbing, and was not included in the "Running per 100 copies" price) and am now informing you of my cancellation of this contract between us. Rule 4 File, Tab M. 9. After receiving the letter, Ms. Nancy Bednar-Escher of the Pittsburgh SPPO telephoned Appellant and spoke with Mr. Nickoloff. She explained to him that Appellant was obligated to perform the contract and described the consequences of a default termination. Mr. Nickoloff agreed to continue performance. Rule 4 File, Tab M; Declaration of Nancy Bednar- Escher ¶ 5. 10. However, by letter dated December 5, 1997, Mr. Nickoloff informed the Pittsburgh SPPO: Due to the problems mentioned the previous letter, dated December 4, 1997, I am writing to inform you to formally terminate the contract immediately with Fotorecord Print Center for Program Number 6204-S. The jobs due for 12-8-97 (8000-0, 8000-2, 8000-3, 8000-4) and 12-9-97 (8000-5, 8000-6, 8000-7, 8000-8, 8000-9) will be delivered on their respective days. No further jobs will be picked-up. Upon review of the GPO Contract Terms - Publication 310.2, there appears to be no formal format of the procedures for handling such a case. Please fax or mail all pertinent information of "contract termination by contractor" procedures for review by my lawyers. Rule 4 File, Tab N. 11. On December 11, 1997, the Contracting Officer terminated Program 6204-S for default. The Contracting Officer's termination notice stated that the action was being taken because Appellant had "submitted written notification of intent not to continue performance as required by the contract." Rule 4 File, Tab P. 12. Thereafter, the Contracting Officer reprocured Program 6204-S using the same sealed bid procedures that were used in the original procurement. Rule 4 File, Tabs Q-X. The GPO incurred excess reprocurement costs in the amount of $6,140.43. Declaration of Robert Colvin. DISCUSSION This case is before the Board on Respondent's Motion for Summary Judgment and Appellant's Opposition. Respondent argues it is entitled to judgment as a matter of law because the undisputed facts demonstrate that Appellant abandoned performance of the contract. Appellant argues that it was entitled to stop performing because the Contracting Officer refused to pay Appellant in accordance with Appellant's interpretation of the contract. Given the undisputed facts in this case, Respondent is entitled to summary judgment in its favor. Summary Judgment Standard In deciding summary judgment1 motions, the Board is guided by Rule 56 of the Federal Rules of Civil Procedure. See The George Marr Co., GPOBCA No. 31-94, (April 23, 1996), 1996 GPOBCA LEXIS 43, 1996 WL 273662, slip op. at 35. Accord, Christie-Willamette, NASA BCA No. 283-4, 87-3 BCA ¶ 19,981 (citing Astro Dynamics, Inc., NASA BCA No. 476-1, 77-1 BCA ¶ 12,230); Automated Services, Inc., EBCA Nos. 386-3-87, 391-5-87, 87-3 BCA ¶ 20,157. Under Rule 56, courts are instructed to grant a motion for summary judgment if the pleadings and supporting affidavits and other submissions "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). Thus, the principal judicial inquiry required by Rule 56 is whether a genuine issue of material fact exists. See The George Marr Co., supra, slip op. at 35-36; RBP Chemical Corp., GPOBCA No. 4-91 (Jan. 23, 1992), 1992 GPOBCA LEXIS 16, 1992 WL 487876, slip op. at 22. Accord, John's Janitorial Services, Inc., ASBCA No. 34234, 90-3 BCA ¶ 22,973 (citing, General Dynamics Corporation, ASBCA Nos. 32660, 32661, 89-2 BCA ¶ 21,851); Ite, Inc., NASA BCA No. 1086-6, 88-1 BCA ¶ 20,269. A material fact is one that will make a difference in the outcome of the case. McDonnell Douglas Services, Inc., ASBCA No. 45556, 95-1 BCA ¶ 27,333 at 136,229 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)). Stated otherwise, on a motion for summary judgment, a court cannot try issues of fact; it can only determine whether there are issues to be tried. See IBM Poughkeepsie Employees Federal Credit Union v. Cumis Insurance Society, Inc., 590 F. Supp. 769, 771 (S.D.N.Y. 1984) (citing Schering Corp. v. Home Insurance Co., 712 F.2d 4, 9 (2d Cir. 1983)). If no triable issues exist, the rule permits the immediate entry of summary judgment. See, e.g., Reingold v. Deloitte, Haskins and Sells, 599 F. Supp. 1241, 1261 (S.D.N.Y. 1984); United States v. ACB Sales and Service, Inc., 590 F. Supp. 561 (D. Ariz. 1984). Indeed, the United States Supreme Court has stated that summary judgment is mandatory in the absence of a genuine issue of any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The burden is on the party moving for summary judgment to demonstrate that there is no genuine issue as to any material fact, and that it is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, supra, 477 U.S. at 322-23; Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970). That burden is an affirmative one, and is not met merely by disproving the unsupported claims of its opponent. See Celotex Corp. v. Catrett, supra, 477 U.S. at 323. On the other hand, while the nonmoving party also has an evidentiary burden, it is not a heavy one; it is simply required to go beyond allegations in the pleadings and designate specific facts in the record or by affidavits to show there is a genuine issue to be heard. See, e.g., McDonnell v. Flaharty, 636 F.2d 184 (7th Cir. 1980); United States v. Kates, 419 F. Supp. 846 (D. Pa. 1976); Upper West Fork River Watershed Association v. Corps of Engineers, 414 F. Supp. 908 (D. W.Va. 1976), aff'd 556 F.2d 576 (4th Cir. 1977), cert. denied 434 U.S. 1010 (1978). See generally, Vanier Graphics, Inc., GPOBCA No. 12-92 (May 17, 1994), 1994 GPOBCA LEXIS 39, 1994 WL 275102, slip op. at 32-38; RBP Chemical Corp., supra, slip op. at 17-26. The Federal summary judgment rule provides: "[A]n adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him." FED. R. CIV. P. 56(e). See Celotex Corp. v. Catrett, supra, 477 U.S. at 324; First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289 (1968); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed. Cir. 1987). See also, Do-Well Machine Shop, Inc., ASBCA No. 34898, 89-1 BCA ¶ 21,491, at 108,281; Ite Inc., supra, 88-1 BCA at 102,595. Termination for Default Standard A default termination is a drastic action that the Government should take only for good cause and on the basis of solid evidence. See R.C. Swanson Printing and Typesetting Company, GPO BCA No. 31-90 (February 6, 1992), 1992 GPOBCA LEXIS 17, 1992 WL 487874, slip op. at 25, aff'd, Richard C. Swanson, T/A R.C. Swanson Printing and Typesetting Company, No. 92-128C (U.S. Claims Court, October 2, 1992); Stephenson, Inc., GPOBCA No. 2-88 (Dec. 20, 1991), 1991 GPOBCA LEXIS 14, 1991 WL 439274, slip op. at 20 (citing, Mary Rogers Manley d/b/a Mary Rogers Real Estate, HUDBCA No. 76-27, 78-2 BCA ¶ 13,519; Decatur Realty Sales, HUDBCA No. 75-26, 77-2 BCA ¶ 12,567). A decision to terminate a contract for default is an exercise of discretion and, as such, must be a reasonable decision. Nuclear Research Corp. v. United States, 814 F.2d 647 (Fed. Cir. 1987); Darwin Construction Co. v. United States, 811 F.2d 593 (Fed. Cir. 1987). The Government has the burden of proving that a decision to terminate a contract for default was proper. See Lisbon Contractors v. United States, 828 F.2d 759 (Fed. Cir. 1987); Chavis and Chavis Printing, GPOBCA No. 20-90 (Feb. 6, 1991), 1991 GPOBCA LEXIS 15, 1991 WL 439270, slip op. at 11 (and cases cited therein). Default terminations-as a species of forfeiture-are strictly construed. See D. Joseph DeVito v. United States, 188 Ct. Cl. 979, 413 F.2d 1147, 1153 (1969). See also, Murphy, et al. v. United States, 164 Ct. Cl. 332 (1964); J. D. Hedin Construction Co. v. United States, 187 Ct. Cl. 45, 408 F.2d 424 (1969). If the Government fails to meet its burden of proof, the termination is converted into one of convenience and the contractor can be paid for the work performed. See GPO Contract Terms, GPO Publication 310.2 (Rev. 9-88), Clause 20(g). Cf., Shepard Printing, GPOBCA No. 23-92 (April 29, 1993), 1993 GPOBCA LEXIS 23, 1993 WL 526848, slip op. at 11; Stephenson, Inc., supra, slip op. at 17-18; Chavis and Chavis Printing, supra, slip op. at 9. In the instant appeal, Appellant's contract was terminated for default because the Contracting Officer concluded that Appellant had repudiated the contract. In order to constitute anticipatory repudiation there must be a "definite and unequivocal manifestation of intention on the part of the repudiator that he will not render the promised performance when the time fixed for it in the contract arrives." Corbin on Contracts §973. To support a default termination on the basis of anticipatory repudiation by the contractor, the trier of fact must find a: "positive, definite, unconditional, and unequivocal manifestation of intent ... on the part of the contractor ... not to render the promised performance ...." United States v. DeKonty Corporation, 922 F.2d 826, 828 (Fed. Cir. 1991) (citing, Cascade Pacific International v. United States, 773 F.2d 287, 293 (Fed. Cir. 1985)). See also, James B. Beard, D.O., ASBCA Nos. 42677, 42678, 93-3 BCA ¶ 25,976, at 129,171; Altina Trucking, PSBCA No. 3341, 93-3 BCA ¶ 26,256, at 130,590-91. The Government has the burden of proving that the contractor communicated an intent not to perform in a positive, definite, unconditional and unequivocal manner. James B. Beard, D.O., supra, at 129,171 (citing, United States v. DeKonty Corporation, 922 F.2d 826 (Fed. Cir. 1991). See also, Sealtite Corporation, GSBCA Nos. 7458, 7633, 88-3 BCA ¶ 21,084, at 106,452. That burden is usually met by showing: (1) a definite and unequivocal statement by the contractor that he/she refused to perform; or (2) actions that constitute actual abandonment of performance. See Holt Roofing Company, Inc., GSBCA No. 8270, 91-1 BCA ¶ 23,361 (a contractor unequivocally repudiated a construction contract when its principal arrived on the jobsite, ordered the subcontractor to stop work, and stated he hoped that the Government would terminate the contract so that he could resume a normal life). See also, Mary E. St.Clair and Mack W. St.Clair, PSBCA Nos. 4088, 4089, 99-1 BCA ¶ 30,233; HBS National Corp., GSBCA No. 14302, 98-2 BCA ¶ 29,935; Tri Star Defense, ASBCA No. 46650, 98-1 BCA ¶ 29,482; Professional Building Services and Maintenance, ASBCA No. 42480, 91-3 BCA ¶ 24,360. The contractor, on the other hand, has the burden of proving that its abandonment was excusable within the meaning of the "Default" clause or was caused by the Government's material breach of the contract. F & D Construction Company, Inc. and D&D Management, Consulting and Construction Company, Inc., ASBCA Nos. 41441-44, 91-2 BCA ¶ 23,983. Decision on Summary Judgment A. Anticipatory Default/Repudiation of Contractual Obligations. The Board concludes that the undisputed facts in the record amply support a finding that Appellant repudiated its contract with the Government. On the fourth day of contract performance, Appellant wrote to the Contracting Officer and said it would not be able to perform further work. Rule 4 File, Tab M. The next day Appellant sent the Contracting Officer a letter that listed the 9 Print Orders that it would complete, and again stated that "no further jobs would be picked-up." Complaint ¶ 9; Rule 4 File, Tab N. Appellant also sought information from the Contracting Officer on the proper procedures for handling a "contract termination by contractor." Rule 4 File, Tab N. Similar written attempts by contractors to terminate Government contracts have been held to be anticipatory repudiations. Menches Tool & Die, Inc., ASBCA No. 21469 78-1 BCA ¶ 13,167; Midwest Aero Mfg. Co., Inc., ASBCA No. 7878, 62 BCA ¶ 3568. In the Board's view, the Contractor's announcement of its "cancellation" of the contract and its refusal to pick up and produce further orders was "positive, definite, unconditional, and unequivocal" and manifested an "intent not to perform" the contract. United States v. DeKonty Corporation, supra, 922 F.2d at 828; James B. Beard, D.O., supra, 93-3 BCA ¶ 25,976, at 129,171; Altina Trucking, supra, 93-3 BCA ¶ 26,256, at 130,590-91; Twigg Corporation, supra, 93-1 BCA ¶ 25,318, at 126,157. Consequently, on the basis of this record, the Board has no trouble in concluding that the Contractor clearly and absolutely repudiated the contract. Twigg Corporation, supra at 126,157 (citing, West States Management Services, Inc., ASBCA Nos. 40212, 41438, 92-1 BCA ¶ 24,714; National Union Fire Insurance Company, ASBCA No. 34744, 90-1 BCA ¶ 22,266, aff'd, 907 F.2d 157 (Fed. Cir. 1990); Therm-Air Manufacturing Company, Inc., NASA BCA Nos. 180-2, 1280-21, 82-2 BCA ¶ 15,881). An anticipatory repudiation also occurs when a contractor fails to proceed pending resolution of its dispute with the Government. Howell Tool & Fabricating, Inc., ASBCA No. 47939, 96-1 BCA ¶ 28,225; CCB Industries, Inc., ASBCA No. 48009, 96-2 BCA ¶ 28,414; Twigg Corporation, supra, 93-1 BCA ¶ 25,318, at 126,157. See also, A. N. Xepapas, AIA, VABCA No. 3087, 91-2 BCA ¶ 23,799, at 119,179. Among other things, the standard GPO "Disputes" clause expressly provides: Pending final decision of a dispute hereunder, the contractor shall proceed diligently with performance and in accordance with the Contracting Officer's decision. GPO Contract Terms, GPO Publication 310.2 (Rev. 9-88), Clause 5(d). Although the language varies slightly, this is the same policy applied to Executive branch contracts by the "Disputes" clause in the Federal Acquisition Regulation (FAR). See 48 C.F.R. § 52.233-1(h). This Board, as well as the ad hoc appeals panels that preceded it, have held on numerous occasions that under the GPO "Disputes" clause, a contractor is obligated to proceed with performance regardless of the merits of the controversy. See, e.g., International Lithographing, GPO BCA No. 1-88 (December 29, 1989), 1989 GPOBCA LEXIS 52, 1989 WL 384986; Colorgraphics Corporation, GPO BCA No. 16-87 (March 31, 1989), 1989 GPOBCA LEXIS 50, 1989 WL 384970; Custom Printing Company, GPO BCA No. 10-87 (May 10, 1988), 1988 GPOBCA LEXIS 12, 1988 WL 363328. See also, e.g., Knepper Press, GPOCAB Nos. 2-84 and 3-84 (October 2, 1984), 1984 GPOBCA LEXIS 20, 1984 WL 14810; Business Forms Service, Inc., GPOCAB No. 9-81 (October 20, 1981), 1981 GPOBCA LEXIS 31, 1981 WL 95444; Merchant Service Company, GPOCAB No. 76-16 (February 11, 1980), 1980 GPOBCA LEXIS 40, 1980 WL 81262. As the Veterans Administration Board of Contract Appeals explained when it affirmed a contracting officer's default termination decision on anticipatory repudiation grounds: [T]he existence of a dispute regarding contract specifications does not excuse a refusal to perform. Charles Bainbridge, Inc., ASBCA Nos. 15843, 16204, 72-1 BCA ¶ 9,351. The fact that the parties are involved in a contract dispute does not justify abandonment of the contract. Nasco Products Company, VACAB Nos. 974, 1000, 72-2 BCA ¶ 9,556. . . . After the Contracting Officer gives his interpretation of the disputed provision of the contract, the Contractor must perform as directed. If he believes the interpretation to be erroneous, he may appeal. To the extent that the Contracting Officer's instructions constitute a change in the specifications or performance of work not required by the contract, the Contractor would be entitled to an equitable adjustment in the amount due and/or in the time required for performance. Charles Wiggins d/b/a Wiggins Construction, ASBCA Nos. 4022, 4613, 58-1 BCA ¶ 1,644. But he may not stop work pending final decision on any claim for equitable adjustment. M. Rudolph Preuss v. U.S., 188 Ct. Cl. 469 (1969). A. N. Xepapas, AIA, supra, 91-2 BCA ¶ 23,799, at 119,178-79 (quoting, Eriez Construction, Inc., VABCA No. 1273, 78-2 BCA ¶ 13,547 at 66,363). See also, Computer Engineering Associates, VABCA No. 1596, 84-2 ¶ 17,246. Accordingly, the Board concludes that Appellant repudiated its obligations under the contract by failing to proceed with performance pending resolution of its dispute with the Contracting Officer. Therefore, the Contracting Officer was warranted in terminating the contract because of Appellant's default.2 In response to Respondent's motion for summary judgment, Appellant argues that "a genuine issue of material fact exists as to whether the appellant ("Fotorecord") was informed prior to submitting its bid that the folding of sheets from 17" x 11" to 8 1/2" x 11" was to be included within the bid price and not paid for in addition to the bid price." Appellant's Answer to Respondent's Motion for Summary Judgment ¶ 3. However, Appellant did not designate specific facts in the record or provide affidavits demonstrating this to be a genuine issue, as required by FED. R. CIV. P. 56(e). Under that rule "an adverse party may not rest upon the mere allegation or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Id. Bare assertions offered in conclusory fashion do not meet the obligations imposed on a party opposing a motion for summary judgment. Petroleo Brasileiro, S.A., Petrobras v. Ameropan Oil Corp., 372 F. Supp. 503 (E.D.N.Y. 1974). Notwithstanding Appellant's failure, the Board does not find this to be a genuine issue of material fact, as it goes to the merits of Appellant's contract interpretation disagreement with the Contracting Officer, instead of to the default termination that is being challenged. Appellant also argues that "a genuine issue of material fact exists as to whether the contract solicitation of GPO includes folding services within the solicited bid price." Appellant's Answer to Respondent's Motion for Summary Judgment ¶ 6. Appellant is mistaken on two counts. First, it is well established that contract interpretation is a question of law, not fact, and may appropriately be resolved by a decision on summary judgment. See MIC Property & Cas. Ins. Corp. v. International Ins. Co., 990 F.2d 573 (10th Cir. 1993); Fry Communications, Inc.-InfoConversion Joint Venture v. United States, 22 Cl. Ct. 497, 503 (1991); Professional Printing of Kansas, Inc., GPOBCA No. 2-93 (May 19, 1995), 1995 GPOBCA LEXIS 19, 1995 WL 488488, slip op. at 46, fn. 62; General Business Forms, Inc., GPO BCA No. 2-84 (December 3, 1985), slip op. at 16, 1985 GPOBCA LEXIS 21, 1985 WL 154846 (citing John C. Grimberg Co. v. United States, 7 Ct. Cl. 452 (1985)). See also Fortec Contractors v. United States, supra, 760 F.2d 1288, 1291 (Fed. Cir. 1985); P.J. Maffei Building Wrecking Co. v. United States, 732 F.2d 913, 916 (Fed. Cir. 1984); Pacificorp Capital, Inc. v. United States, 25 Cl. Ct. 707, 715 (1992), aff'd, 988 F.2d 130 (Fed. Cir. 1993); Ralph Construction, Inc. v. United States, 4 Cl. Ct. 727, 731 (1984) (citing Torncello v. United States, 681 F.2d 756, 760 (Ct. Cl. 1982)); Hol-Gar Manufacturing Corp. v. United States, 169 Ct. Cl. 384, 386, 351 F.2d 972, 973 (1965). Second, the contract interpretation issue referenced by Appellant is not a material one, as it was Appellant's decision to stop performing the contract that formed the basis for the default action that is being appealed. After learning of the Contracting Officer's interpretation of the contract, Appellant did not seek relief from the Contracting Officer's interpretation, either by claiming a post-award error in bid3 or by requesting a contracting officer's final decision and challenging the interpretation through an appeal. See GPO Contract Terms, GPO Publication 310.2 (Rev. 9-88) Clause 5. Instead, Appellant simply declared the contract to be at an end and stopped performing.4 In deciding if the Contracting Officer's default termination was justified, the Board does not have to interpret the payment provisions of Program 6204-S. Regardless of the merits of the contract interpretation issue, it is Appellant's unilateral abandonment of the contract that is fatal to its appeal, and is ground enough to sustain the default. See A. N. Xepapas, AIA, supra at 119,178 (the merits of the controversy have no effect on the requirement that a contractor continue performance during the pendency of the dispute. Citing, Detroit Designing & Engineering Company, ASBCA No. 8807, 1964 BCA ¶ 4214). B. Discharge of Contractor's Obligations Due to Government Breach Appellant also argues that there is "a genuine issue of both fact and law ... as to whether Fotorecord was justified in refusing to provide further services to GPO after learning that it would not be compensated for folding services." Appellant's Answer to Respondent's Motion for Summary Judgment ¶ 7. Appellant again fails to designate specific facts in the record or provide affidavits making this a genuine factual dispute. Appellant also argues that a "genuine issue of law exists" as to whether GPO first breached the contract by refusing to pay for folding services in accordance with Appellant's interpretation, thereby discharging Fotorecord from any further liability under the contract. Appellant's Answer to Respondent's Motion for Summary Judgment ¶ 10. As discussed supra, a contractor is required to continue performance pending a final decision on a dispute. However, that requirement will not be enforced where continued performance is discharged through a material Government breach. Drain-A-Way Systems, GSBCA No. 6473, 83-1 BCA ¶ 16,202. The cases in this area follow the common law principle that a party is under no duty to continue to perform on a contract when the other party has committed a material breach. RESTATEMENT (SECOND) OF CONTRACTS § 237. Under certain circumstances the failure of the Government to pay a contractor may constitute an excuse for nonperformance on the part of the contractor. General Dynamics Corp., DOTCAB No. 1232, 83-1 BCA ¶ 16,386. Whether the contractor will be discharged depends on the "seriousness of the Government's breach, both the nature of the breach and the impact on the contractor's ability to perform." Seven Sciences, Inc., ASBCA No. 21079, 77-2 BCA ¶ 12,730. As the court in Northern Helex Co. v. United States, 197 Ct. Cl. 118, 455 F.2d 546 (1972) stated: [M]ere delay in payment for a while, would not be a material breach but there is a clear distinction between delay of that kind and a total failure to pay over many months. Id. At 124. The cases allowing a contractor to abandon performance because of a Government breach are limited also to those situations where the Government has failed to make payment on amounts admittedly due the contractor. See General Dynamics Corp., DOTCAB No. 1232, 83-1 BCA ¶ 16,386 (failure to pay five invoices under a cost-reimbursement contract constitutes breach); H.E. & C.F. Blinne Contracting Co., ENGBCA No. 4174, 83-1 BCA ¶ 16,388 (government failure to pay proper amount of progress payment was material breach). See also, Contract Maintenance, Inc., ASBCA No. 19409, 75-1 BCA ¶ 11,207 (failure of Government to pay undisputed amounts for four months); Valley Contractors, ASBCA No. 9397, 1964 BCA ¶ 4071 (failure of Government to pay undisputed half of monthly fee). But see, NBJ Restoration, Inc., GSBCA No. 14487, 98-2 BCA ¶ 29,987 (withholding payment because of IRS levy does not justify abandonment of contract performance); Ultimare Janitorial Services, Inc., GSBCA No. 6905, 84-1 BCA ¶ 17,136. However, disputed claims are covered by the standard Government Disputes clause requiring continued performance pending resolution of the dispute. Thus, where the Government without good reason fails to make payments called for in the contract, this failure is a breach of a material condition triggering a contractor's right to refuse to perform. U.S. Services Corp., ASBCA No. 8291, 63 BCA ¶ 3703. However, before a contractor can rely on the Government's failure to pay to justify abandoning performance, it must show that the Government had the legal obligation to make the payment. If it cannot, then the contractor has no right to abandon performance. Al-Cal Painting Co., GSBCA No. 2806, 70-1 BCA ¶ 8319. In the instant case Appellant cannot rely on this defense. First, the payments in question were in dispute between the parties, as each party had a different interpretation of the contract. Appellant quickly abandoned performance after learning of this difference in interpretation. Second, notwithstanding the disputed nature of the payment, Appellant cannot establish the basic prerequisite to such an argument; that the Government failed to make a payment. There is no evidence in the record that Appellant ever submitted a voucher for payment that was rejected by the GPO. The undisputed evidence is that Appellant on December 4, 1997, after performing four days of a 1-year contract, visited the Pittsburgh SPPO and "requested information on completing the bottom billing portion of the Print Orders." Complaint ¶ 8. During the visit Appellant's owner learned that he had made a mistake in his interpretation of the contract. Rule 4 File, Tab M. Later that same day Appellant announced that it was canceling the contract. Id. This "cancellation" took place before any print orders had been completed and delivered to the Government and before any voucher had been submitted to the GPO seeking payment. Appellant did not submit its first voucher to GPO for payment until December 8, 1997, four days after its notification to GPO that it was canceling the contract. See Complaint, Exhibit C. Thus it cannot be found on this record that the GPO ever failed to make a payment to Appellant. The Board concludes that Appellant's anticipatory repudiation of this contract was unjustified and that the Contracting Officer appropriately terminated the contract for default. C. Excess Reprocurement Costs Respondent argues that: (1) the reprocurement contract was performed under the same or substantially the same terms and conditions as the original contract; (2) the Government acted within a reasonable time following default to repurchase the supplies; (3) the Government employed a reprocurement method that would maximize competition under the circumstances; (4) the Government obtained the lowest reasonable price; and (5) the work has been completed and final payment made so that the excess costs assessment is based upon liability for a sum certain. Appellant does not dispute these allegations. The record supports Respondent's position, and as all the elements necessary to support recovery of excess reprocurement costs have been met, Respondent is entitled to recover excess reprocurement costs from Appellant in the amount of $6,140.43. See Univex International, GPOBCA No. 23-90 (July 5, 1996), 1996 GPOBCA LEXIS 40, 1996 WL 812959. CONCLUSION For the foregoing reasons, the Board concludes that the Respondent is entitled to summary judgment as a matter of law. Accordingly, Respondent's Motion for Summary Judgment is granted and the appeal is DENIED. December 13, 1999 KERRY L. MILLER Administrative Judge _______________ 1 Although the Board's rules that were in effect at the time this appeal was filed did not provide explicitly for a summary relief procedure, the Board has routinely entertained summary judgment motions. See WBC, Inc., GPOBCA No. 17-98 (Sept. 22, 1999), 1999 GPOBCA LEXIS 12, 1999 WL ____; Wickersham Printing Co., GPOBCA No. 23-96 (Dec. 18, 1998), 1998 GPOBCA LEXIS 24, 1998 WL 993636; Artisan Printing, Inc., GPOBCA No. 15-93 (Feb. 6, 1998), 1998 GPOBCA LEXIS 30, 1998 WL 149001; Graphicdata, Inc., GPOBCA No. 35-94 (June 14, 1996), slip op. at 47, 1996 GPOBCA LEXIS 28, 1996 WL 812875, and cases cited therein. 2 A cure notice is not required when a contract is terminated for default because of the contractor's repudiation. See James B. Beard, D.O., supra, 93-3 BCA ¶ 25,976, at 129,172 (citing, Beeston, Inc., ASBCA No. 38969, 91-3 BCA ¶ 24,241). See also, Scott Aviation, ASBCA No. 40776, 91-3 BCA ¶ 24,123); Superior Communications Services, Inc., ASBCA No. 38421, 89-3 BCA ¶ 22,236; Metal-Tech Incorporated, ASBCA No. 14828, 72-2 BCA ¶ 9,545. 3 See GPO Printing Procurement Regulation, GPO Publication 305.3 (Rev. 10-90), Ch. XI, § 6.4. 4 Appellant appears to have had a fundamental misconception about the formation of Government contracts. An Invitation for Bids (IFB) is, among other things, an invitation to submit an offer. Appellant submitted a sealed bid in response to the IFB for Program 6204-S. Rule 4 File, Tab E. The submission of a signed bid in response to an IFB is an irrevocable offer to perform the contract. This offer, upon acceptance by the Government, becomes a binding contract. See PAUL SHNITZER, GOVERNMENT CONTRACT BIDDING at 5-2 (3rd ed. 1992). The Government accepted Appellant's offer and a binding contract was formed. Rule 4 File, Tab J. Under the terms of that contract Appellant was obligated to provide the contracted for goods and services and to proceed diligently should it have a dispute with the Government. The contract does not contain a provision allowing termination at the Contractor's option.