Emily Malone D/b/a Precision Cabinet Company, Appellant, v. the United States, Appellee, 857 F.2d 787 (Fed. Cir. 1988)

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U.S. Court of Appeals for the Federal Circuit - 857 F.2d 787 (Fed. Cir. 1988) Sept. 26, 1988

Appealed from: Armed Services Board of Contract Appeals.

J. Hatcher Graham, Clarke, Moore, Daly & Graham, Warner Robins, Ga., argued, for appellant.

Sharon Y. Eubanks, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for appellee. With her on the brief were James M. Spears, Acting Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief were Maj. Scott Bagley and Maj. Leo Wegemer, U.S. Air Force, Washington, D.C., of counsel.

Prior report: Fed. Cir. 849 F.2d 1441.

Before RICH, NIES, and BISSELL, Circuit Judges.


Having considered the Petition for Rehearing, the panel grants that Petition to the extent of ordering the following change in the opinion. Accordingly,


On Page 1445, Section II, of the opinion decided June 16, 1988, the following footnote is inserted at the end of the second sentence:

* The contract at issue contained the Disputes clause set forth in 32 C.F.R. Sec. 7-103.12(a)-(h). Thus, we need not, and do not, decide if a contractor's failure to perform can be excused by the government's material breach if the contract contains the Disputes clause set forth in 32 C.F.R. Sec. 7-103.12(b).