Board of Contract Appeals
                    General Services Administration
                         Washington, D.C. 20405
     _____________________________________________________________
 
 
                      GSBCA 14066, 14189 GRANTED;
        GSBCA 14068 DISMISSED WITHOUT PREJUDICE: March 31, 1999
     _____________________________________________________________
 
 
                       GSBCA 14066, 14068, 14189
 
 
                   AMERICAN SHEET METAL CORPORATION,
 
                                                Appellant,
 
                                   v.
 
                    GENERAL SERVICES ADMINISTRATION,
 
                                                Respondent.
 
        Martha M.  Poindexter of  Crenshaw, Ware  & Martin,  P.L.C.,
   Norfolk, VA, counsel for Appellant.
 
        Robert C. Smith, Office of General Counsel, General Services
   Administration, Washington, DC, counsel for Respondent.
 
   Before Board Judges NEILL, WILLIAMS, and GOODMAN.
 
   WILLIAMS, Board Judge.
 
        At  issue in  this case  are  the propriety  of the  General
   Services Administration's  (GSA's) termination for  default of  a
   contract for the replacement of  the roof on the Federal Building
   in Norfolk, Virginia; GSA's assessment of reprocurement costs and
   liquidated  damages; and  appellant's claim  for  monies due  for
   labor and materials furnished to GSA prior to the termination.
 
        GSA  terminated appellant's  contract  for  failure to  make
   progress  prior  to  the extended  completion  date.   Appellant,
   American  Sheet  Metal  Corporation (ASMC),  has  challenged  the
   termination for default on several grounds.  First, ASMC contends
   that GSA  had no right to terminate  its contract before the time
   extension  granted  to  ASMC  in  a cure  notice.    Second,  the
   contractor maintains that GSA did  not meet its burden of proving
   default for failure to progress.  Third,  the contractor contends
   that GSA waived its right to terminate  by failing to establish a
   completion date  for the entire  project and encouraging  ASMC to
   intensify its  effort after  granting time  extensions.   Fourth,
   ASMC  argues that  even  if  GSA could  show  the contractor  was
   technically  in  default,   the  termination  was  an   abuse  of
   discretion.  Finally, ASMC contends  that GSA erred in failing to
   grant time extensions  for weather delays  as required under  the
   contract.
 
 
        Respondent, GSA,  contends that  ASMC failed  to pursue  the
   work with diligence  and that the work  was only 61% complete  at
   the  time of  termination.    Respondent  acknowledges  that  the
   contracting  officer elected to extend the performance period but
   claims  that he  did so  on the  condition that  ASMC demonstrate
   "vast improvement" in its construction progress.  GSA argues that
   ASMC squandered this opportunity, thereby  justifying the default
   action.   GSA assessed  liquidated damages  of $28,362  and seeks
   additionally  reprocurement  costs  of $160,589.35,  recovery  of
   $6539.22 due  to alleged  property damage, and  the costs  of its
   expert's inspection, $5950.80. 
 
        We sustain  the  appeals  challenging  the  termination  for
   default and assessment  of liquidated damages and  other damages.
   Respondent  did  not   meet  its  burden  of  proving   that  the
   contracting officer  reasonably  determined that  ASMC would  not
   complete the  work prior  to the extended  completion date.   The
   contracting officer's  determination of appellant's  progress was
   based  upon an  incomplete and  erroneous  calculation of  ASMC's
   percentage  of  completion.    Further,  respondent  unreasonably
   terminated the  contract prior  to the  extended completion  date
   after appellant had accelerated its work  effort in reliance upon
   the  extension and without  adequately taking  into consideration
   the  time and expense  of bringing on  a reprocurement contractor
   which was  not a certified  applicator of the type  of roof being
   installed by ASMC.  
 
        The   termination   is  converted   to  a   termination  for
   convenience.     Respondent  is   not  entitled  to   the  excess
   reprocurement costs,  liquidated  damages, or  other  damages  it
   seeks.  Appellant's  claim for $198,011  for labor and  materials
   furnished prior to the termination is dismissed without prejudice
   to be considered by the contracting  officer in the context of  a
   termination for convenience.
 
                            Findings of Fact
 
        On  April 18,   1996,  GSA  awarded  ASMC   contract  number
   GS-03P-96-DXC-0003  for  the  replacement  of  the  roof  on  the
   Norfolk, Virginia,  Federal Building.  Appeal  File, GSBCA 14066,
   14068   (Appeal  File),   Exhibit 1.[foot #] 1     The   contract
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1 There  are two  appeal  files  in  this  case,  a
   consolidated appeal file for GSBCA 14066 and 14068 and a separate
   appeal file for GSBCA  14189.  In GSBCA 14066, ASMC  appealed the
                                                      (continued...)
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   performance period was 150 calendar days.  Id.; Transcript at 43.
   The  order  to  proceed   was  issued  on  April 30,   1996,  and
   established  a completion  date of  September 27,  1996.   Appeal
   File, Exhibits 1-7;  Transcript at 44.   In bidding on  this job,
   appellant anticipated that there would be approximately two weeks
   of  bad weather.    Transcript  at 658.    This reflected  normal
   conditions  that the company  had experienced  over the  past few
   years.  Id.
 
 
        The  project involved the  removal of the  existing built-up
   roof, insulation, and flashing and the  installation of a two-ply
   polymer modified bitumen roofing system on the second  and eighth
   floors and the penthouse of the Federal Building.  The contractor
   was  required  to  provide  all  labor,  supervision,  materials,
   supplies, and equipment for the  project.  Appeal File, Exhibit 1
   at 1.  James Concannon, GSA's contracting officer, was located in
   Philadelphia  and  never visited  the  site.   Transcript  at 42.
   GSA's  contracting  officer's  technical  representative  (COTR),
   Christopher Horrigan,  who  was  responsible for  the  day-to-day
   aspects  of  the project,  was also  located in  Philadelphia and
   visited  the project  twice while ASMC  was on  the job.   Id. at
   290-91.
 
        GSA hired HDH  & Associates (HDH) to inspect  the daily work
   that was  performed, file reports,  and keep GSA informed  on how
   the job was  progressing.  Transcript at 91.   HDH's construction
   manager assigned  to this  project was  Wiley  Greer, who  became
   GSA's inspector and "eyes and ears on the project."  Id.  at 288.
   The COTR did  not have a  lot of experience  with this system  of
   roof and  advised Mr. Greer that he  would be relying on  him and
   the   designer.[foot #] 2      Id.   at   289-90,   514.      The
   inspector reported  to the COTR  on average three times  per week
   during the  project  while work  was  being done.    Id. at  289,
   504.[foot #] 3
 
   Contract Terms
 
        The   contract   contained  paragraph   1.5,   Environmental
   Requirements, which specified:
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 1 (...continued)
   termination for default, in GSBCA  14068, the denial of its claim
   for  monies due  prior to  termination, and  in GSBCA  14189, the
   assessment of excess reprocurement  costs and liquidated damages.
   References to the Appeal File in GSBCA 14189 are to Second Appeal
   File.
 
        [foot #] 2 However, the designer  was also not on  the site.
   Transcript at 504.
 
        [foot #] 3 Mr. Horrigan completed  a letter of  reference on
   Mr. Greer's behalf, stating that he was "completely competent" as
   a roof observer.  Appellant's Exhibit 157; Transcript at 517-19.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        Do not install  roofing system when air  temperature is
        below 40 degrees  F, during any form  of precipitation,
        including fog, or  when there is ice,  frost, moisture,
        or any other visible dampness on the roof deck.
 
   Appeal File, Exhibit 1 at 82.  The contract also provided:
 
        Job Conditions
 
        . . . .
 
        The roof  surface shall be  dry throughout.   Will  not
        expose to inclement weather.
 
   Id. at 176.
 
        The  contract  contained  detailed  specifications  for  the
   application of  the roof and  required that the  contractor apply
   only as  much roofing in one day as  could be completed that same
   day and that  it provide temporary roofing and  flashing prior to
   the  application of  a  permanent roofing  system.   Appeal File,
   Exhibit 1 at 187.   The contract also required  that ASMC protect
   the applied  roofing against  moisture absorption  at the end  of
   each  day's work  and when  precipitation was  imminent.   Id. at
   187-88.   Specifically,  the contract required that at the end of
   the day's work and when precipitation is imminent, the  following
   be applied:
 
        Temporary  Flashing  for   Permanent  Roofing:  Provide
        temporary  flashing at drains,  curbs, walls, and other
        penetrations  and terminations  of roofing  felts until
        roofing membrane application is complete, and permanent
        flashings  are  applied.    Temporary  flashings  shall
        consist of one ply of ply felt applied in a trowel coat
        of asphalt roof cement applied to a primed surface, and
        finished  with a surface  coat of asphalt  roof cement.
        Remove  temporary  flashing before  applying  permanent
        flashing.
 
   Id. at 188.
 
        Clause  51.249-10  in the  contract  provided,  in pertinent
   part:
 
             (a)  If  the   Contractor  refuses  or   fails  to
        prosecute  the work  or any  separable  part, with  the
        diligence that  will insure  its completion  within the
        time   specified  in   this   contract  including   any
        extension,  or fails to  complete the work  within this
        time,  the Government  may, by  written  notice to  the
        Contractor, terminate  the  right to  proceed with  the
        work (or the separable part  of the work) that has been
        delayed.   In this event, the Government  may take over
        the work  and complete it by contract or otherwise, and
 
        may  take   possession  of   and  use  any   materials,
        appliances,  and plant on  the work site  necessary for
        completing the work.   The Contractor and  its sureties
        shall  be liable  for  any  damage  to  the  Government
        resulting from  the Contractor's refusal or  failure to
        complete the work within the specified time, whether or
        not the Contractor's right to proceed with  the work is
        terminated.    This  liability  includes any  increased
        costs incurred  by  the Government  in  completing  the
        work.
 
             (b)  The Contractor's  right to proceed  shall not
        be terminated nor  the Contractor charged  with damages
        under this clause, if--
 
                  (1)  The delay in  completing the work arises
        from  unforeseeable  causes  beyond   the  control  and
        without  the fault  or  negligence of  the  Contractor.
        Examples of such causes include-- . . .
 
                       (x)  Unusually severe weather . . . .
 
   Appeal File, Exhibit 1 at 38.
 
   The Original Schedule
 
        ASMC  submitted a construction schedule which indicated that
   it would  begin construction on  June 15, 1996, and  complete the
   eighth floor by July 22,  1996, and that there would be  a gap in
   the   work  until  August 30,  the  beginning  of  Phase II,  the
   penthouse.   Appellant's  Exhibit 11; Transcript  at  705.   This
   schedule, which was  approved, contained a note  stating, "[T]his
   schedule is approved if American  Sheet Metal agrees not to leave
   the site  until the eighth  floor roof is completely  repaired in
   its entirety  and they agree  to take temporary measures  to stop
   the  leaks on  the second  floor roof."   Appellant's Exhibit 11;
   Transcript  at  336-37, 604.    The  note  was dated  June 3  and
   initialed by the COTR.  Transcript at 337.  The COTR acknowledged
   that at  the time he  approved the schedule  it appeared that  he
   knew that  ASMC would be leaving  the job.   Id. at 339.   In the
   preconstruction phase it was brought to the inspector's attention
   that there would be a six-week gap in the contract where ASMC had
   a previous obligation  and would  "pull  off the job and  not man
   the job during that period."  Id. at 506. 
 
   Commencement of Work
 
        ASMC  was  authorized   to  commence  roof   demolition  and
   replacement  as  of   June 3,  1996.    Respondent's   Exhibit 1;
   Transcript at  45.  The  contract required that  all work on  the
   north end of the eighth floor roof be performed at night, between
   the hours of  6:01 p.m. and 6:56 a.m., Monday  through Friday, or
   at any time  on Saturday and Sunday.   Appeal File, Exhibit 1  at
   69; Transcript  at 655,  716.  On  June 5, 1996,  appellant began
   mobilizing and  setting up  the project.   Transcript  at 645-46.
   Appellant began work on  the eighth floor because it was the most
   difficult  and required the use of cranes.  Id. at 647.  The work
   on  the half moon  roof area  on the  eighth floor  was difficult
   because it  required carrying  materials and  removing debris  by
   walking through the penthouse.    Id. at 647.  The cooling  tower
   roof was also difficult because  it was about fourteen or fifteen
   inches above the roof line and the  men had to perform work there
   on their hands and knees.  Id. at 351-52.  The penthouse was also
   difficult because materials had to  be lifted to that level using
   a crane and were subjected to a lot of wind.  Id. at 649.
 
   The Lack of Wood Nailers
 
 
        In July  the Government's  inspector noticed  that the  wood
   nailers were not  being installed.  Transcript at  513.  Although
   contract drawing  A5 required wood  blocking or "a nailer"  to be
   installed  directly  on top  of  the  metal  deck, the  COTR  had
   approved a  submittal on perimeter  detail which did  not involve
   use of this nailer, but rather showed an "L" angle metal flashing
   being  attached directly to the metal  deck by fasteners.  Id. at
   276-78,  513;  Appellant's  Exhibit 31.     However,  that   same
   submittal also contained  a smaller sketch showing that the cover
   plate  was  to be  nailed  into  a  nailer, indicating  that  the
   manufacturer,   Siplast,   required   a  nailer.      Appellant's
   Exhibit 31; Transcript at 279.
 
        In the Government  inspector's view this Government-approved
   submittal  on perimeter detail  deleted the requirement  for wood
   nailers.   Transcript at  511, 619-20.   He explained:  "The wood
   nailers   were  deleted  because  they  were  using  an  L  metal
   perimeter, and  it served no  purpose.  It  was just  extra money
   being thrown away.   The L metal  gave the strength and  the seal
   along the perimeter and so  the wood blocking would have actually
   been --  I don't want to say it  would have been inferior, but it
   certainly  wouldn't  have  helped  anything."    Id.  at  511-12.
   Appellant's expert testified that the  removal of the wood nailer
   added greater stability.  Id. at 801-03.
 
        The  Government's inspector  discussed the  deletion of  the
   wood nailer with  the COTR and advised him that  the nailer would
   not serve any purpose.   Transcript at 512, 622.   ASMC's project
   manager discussed the detail on  the L flashing with Siplast, and
   Siplast's  engineer  recommended  that  ASMC  install  the  angle
   flashing or the  L piece directly to  the deck.  Id. at  687.  In
   another copy  of this detail  received from Siplast,  the Siplast
   engineer entered notes explaining how to  install the flashing in
   relation to the  metal angle flashing to insure  that there would
   be a water-tight seal.  Id. at 691; Appellant's Exhibit 40.
 
        At   trial,  the  COTR   testified  that  because   of  this
   discrepancy in the submittal, ASMC should have submitted contract
   drawings  in  a change  proposal to  alert the  COTR that  it was
   changing the system  which was clearly marked  "Siplast," because
   the  failure to  install  nailers by  ASMC  was a  noncompliance.
   Transcript at 280.[foot #] 4
 
   Installation of Insulation Upside Down
 
 
        On July 10, 1996, the Government's inspector discovered that
   ASMC  had  mistakenly installed  sixty-four squares  of composite
   board insulation upside down on the top layer at the north end of
   the  eighth floor.   Appellant's Exhibit 98 (July 10,  1996 Field
   Report); Transcript at 584.  Each square was 100  square feet, so
   this predicament involved  6400 square feet.   Mr. Greer reported
   this to  ASMC's foreman  that night  and to GSA's  COTR the  next
   morning.  Transcript at  262, 525-26, 529, 538,  575.  After  the
   discovery of the  improper installation, there were  several days
   of  bad  weather,  precluding  work.   Id.  at  529;  Appellant's
   Exhibit 117.
 
        On July 17, 1996, Vernon Garbett, a technical representative
   from the manufacturer  of the roofing materials,  Siplast, made a
   site visit to address  whether Siplast would provide  a warranty.
   Appellant's  Supplemental   Appeal   File,   Exhibit 45.      The
   manufacturer  could  not   issue  a  warranty  on   the  reversed
   insulation as  it stood.   Transcript  at 531.   By letter  dated
   July 29,  1996,  GSA  requested  that  ASMC  provide  it  with  a
   corrective action plan  to remedy the upside down  tiles.  Appeal
   File, Exhibit 9; Transcript at 47. 
 
        By  letter of  August 7, 1996,  ASMC informed  GSA that  the
   upside down insulation could  be corrected by applying  one layer
   of 3/4" fiberglass  board in a mopping of hot  asphalt, which was
   acceptable  to  the manufacturer  and  would  be  eligible for  a
   warranty.   ASMC enclosed  a letter of  August 7, 1996,  from the
   manufacturer, stating:
 
        We  have  been   notified  that  the   polyisocyanurate
        composite   insulation  board   on  a   roof   area  of
        approximately  64  squares  has been  installed  upside
        down; specifically, the panels  were installed with the
        polyisocyanurate  side  facing  up.   A  single  ply of
        Paradiene  20 has  been  hot  mopped  directly  to  the
        polyisocyanurate  side  of the  insulation.   Short  of
        removing  and replacing  the  insulation and  membrane,
        Siplast will accept alternative  if mutually agreed  by
        you, the owner and the architect.
 
        A 3/4 inch fiberglass board (maximum panel size must be
        4 ft.  by 4 ft.) could  be applied in hot  asphalt over
        the  existing Paradiene 20 surface.  The new insulation
        will provide a suitable surface for the installation of
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 4 The lack  of a nailer  was not an issue  prior to
   the  reprocurement contract,  and this  was not  a factor  in the
   contracting officer's decision to terminate ASMC for default.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        the two-ply Paradiene  roof system in Type  IV asphalt.
        This  application method is  acceptable and the project
        will be eligible for the proposed Siplast Ten Year Roof
        Membrane Guarantee.
 
   Appeal File, Exhibit 14; Appellant's Exhibit 49. 
 
        By letter of August 12, 1996, GSA requested that ASMC have a
   roofing expert inspect the eighth floor roof and submit a report.
   Appeal File,  Exhibit 15; Transcript at  48.  On  August 13, ASMC
   submitted a letter from  Roofing Consultants of VA  stating: "the
   proposed overlayment will not pose any effect on  the performance
   of the installation and shall remain a warrantable installation."
   Appeal File, Exhibit 16.
 
        By letter  of  August 20, 1996,  GSA informed  ASMC that  it
   would  not accept  the  corrective  action  proposed  unless  the
   manufacturer,  Siplast, would amend  its warranty to  cover leaks
   caused by faulty substrate.  Appeal File, Exhibit 17.
 
        On September 5, 1996, ASMC sent a letter from  Siplast dated
   September 4,  1996, to  GSA  via  facsimile  transmission,  which
   stated that the  corrective method was acceptable and the project
   would be eligible for the proposed Siplast Ten Year Roof Membrane
   Guarantee with an addendum which also covered the polyisocyanurat
   perlite insulation and  fiberglass insulation under the  terms of
   the guarantee.  Appeal File, Exhibit 18.
 
        The  COTR and Government  inspector also obtained  an expert
   opinion about  the corrective solution  from a senior  partner of
   HDH,  who  requested  that  test   cuts  of  the  roof  be  made.
   Transcript at 531-32.   On September 20, 1996, the inspector made
   two eight-by-eight-inch roof cuts.   The tests cuts were analyzed
   in HDH's laboratory for moisture content and  shear strength, and
   they were dry.  Id. at 532; Appellant's Supplemental Appeal File,
   Exhibit 45.   The senior partner's  opinion was that  pinning the
   flashing and providing a second roof with a fiberglass insulation
   served everyone's interest.  Transcript at 533.
 
   The College of William & Mary Job
 
        On August 7, ASMC  left the Norfolk Federal  Building job to
   complete a roof job at the College of William & Mary.  Transcript
   at  657;  Appellant's  Exhibit 44.   GSA's  COTR  approved ASMC's
   leaving on that date "if  [ASMC] promised to man [the  job] every
   day  when  [they] returned."    Id.    According to  the  project
   manager, the COTR gave ASMC verbal  approval to leave the job for
   two weeks to go Williamsburg, where William & Mary is located, to
   handle an  emergency.  Transcript at 133,  706.  The inspector on
   the William & Mary  job was the same inspector as  on the Norfolk
   job -- Wiley Greer of HDH.  Id. at 656.
 
        ASMC had estimated  that it would be  on the William &  Mary
   job for  two weeks, but  due to bad weather,  ASMC remained there
   for approximately a month -- until September 5, 1996.  Transcript
   at 659.   Although a two-week hiatus would  have put ASMC back on
   the  job on approximately August 22, ASMC  would have been unable
   to work  on  the roof  of  the Norfolk  Federal Building  due  to
   adverse  weather  conditions  from  August 24 through  August 31.
   Adverse  weather commenced again  on September 2, Labor  Day, and
   continued  through September 6.    Appellant's Exhibits 44,  117;
   Transcript at 706,  887.  ASMC advised  the COTR that it  was not
   back on site due to the adverse weather.  Transcript at 707.
 
   Adverse Weather
 
 
        During  the  summer of  1996,  the  weather  in Norfolk  was
   unusually  severe;  there  were  three   hurricanes  and  several
   thunderstorms.     Transcript   at   649-50,   660;   Appellant's
   Exhibit 117.   Precipitation in  the Norfolk, Virginia,  area for
   June-October   1996  was   29%   above   average.     Appellant's
   Exhibit 208;  see  also,  Appellant's Exhibits  113-16.    Due to
   continuous bad weather, the first  time that ASMC could work five
   consecutive  days  on the  Federal Building  did not  occur until
   September 23-27.  Transcript at 660-61; Appellant's  Exhibit 117.
   Even on  clear days, ASMC spent a lot  of time pumping and drying
   the roof so  the crew could  work, but this  did not reflect  any
   production on the job.  Transcript at 712.
 
        Over the course of this job, ASMC lost sixty-two days due to
   bad weather,  including rain  days, wet days,  and days  on which
   there  was  a  30%  or  greater  chance  of  rain.    Appellant's
   Exhibit 117; Transcript  at 653-61.   ASMC did  not work  days in
   which the chance of rain was  30% or greater because it "did  not
   want to  get caught  during construction with  the roof  off, and
   damaging the buildings . . . ."  Transcript at 655; see also, id.
   at 611-12, 882-84.
 
        The contracting officer  testified that it was  unreasonable
   for ASMC not to work when there was a chance of rain.  Transcript
   at  838.   Based upon  his examination  of the  certified payroll
   records,  the  contracting  officer  testified  that  there  were
   thirty-six  "good weather days" on which  appellant did not work.
   Transcript   at    833-36;   Appellant's    Exhibit 18.[foot #] 5
   The  contracting officer's analysis of  this data did not include
   hours  of  independent  contractors  or  subcontractors  or  ASMC
   salaried  employees.    Transcript at    871-92;  see Appellant's
   Exhibit 44.   The contracting  officer's determination that there
   were enough clear days to  complete the work was also  based upon
   "second hand information from people in the area."  Transcript at
   95-96.
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 5 Thirteen of  these "good  weather" days  occurred
   between August 7 and September 1 when ASMC was at William & Mary.
   Appellant's Exhibit 117;  Transcript at  886.   ASMC checked  the
   Federal  Building  job and  repaired  leaks on  the  eighth floor
   whenever it rained when ASMC was working at William & Mary.  Id.
                                                                ___
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        ASMC's project manager credibly testified that there were no
   days which were clear  that ASMC could have  worked and did  not,
   except  for those  in  August  when the  contractor  went to  the
   William & Mary job.  Transcript at 890.  He explained:
 
        [L]et's go back to the  specifications where we are not
        allowed  to  put  down  new  roof  under  damp  or  wet
        conditions.   We're working with a roof  system that is
        affected by moisture, and  we're working at night.   No
        visibility  whatsoever, bright  lights  on  top of  it.
        Things picked  up somewhat when  we were able to  go to
        days, because at  that time we were facing  most of our
        rainy weather at night.
 
        After a hard rain, you go up on the roof, everything is
        soaking wet.   It's ponding water.  Before  you can cut
        the  roof, open  the  roof,  for  fear of  water  going
        through the  decking and damaging  computers and office
        equipment, you have to get the  water off.  You have to
        dry the roof  off.   And looking  for rain.   How  many
        days, how many days of opportunity did we actually have
        that we could gain momentum?   Momentum is when you can
        put a  crew on site, you  tear off today  and put back,
        you tear off tomorrow and put  back. . . .  Every  time
        you have a shutdown, it costs you time, valuable time.
 
   Id. at 890-91.
 
   The August 5 Request for a Twenty-Nine Day Extension
 
        On  August 5,  1996,  ASMC advised  GSA  that  the following
   twenty-nine  days  had  "unusually  severe"  or  abnormal weather
   conditions  that  prevented  it  from  working  on  the  project:
   June 24, 25,  and 30,  and July 1-15, 19,  20, 22-26,  and 29-31.
   Appeal  File, Exhibit 21.   ASMC requested  a time  extension for
   these twenty-nine days.[foot #] 6
 
   The Response  to the Request  for an Extension: the  September 20
   Cure Notice
 
        The contracting officer  testified that he did not take into
   consideration   the   criteria   in   paragraph    1.5   of   the
   specifications'  environmental  requirements  in  denying  ASMC's
   request for  an extension  of  twenty-nine days.   Transcript  at
   92-94.   Rather,  the contracting  officer  determined that  "the
   Government's  responsibility for time extensions is only for days
   that  are considered  acts of  God which  in this  case would  be
   hurricanes."   Appeal File,  Exhibit 21; Appellant's  Exhibit 59.
   There  were eight  days of  hurricane  activity.   The Government
   granted  an  eighteen-day  extension --  eight  days  for adverse
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 6 This letter contained  an error; ASMC was  on the
   job on July 6, 10, and 11.  Transcript at 662.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   weather  and ten days  as "a sign  of good faith."   Appeal File,
   Exhibit 59.
 
 
        This  response  to  ASMC's  request  for  an  extension  was
   contained in  a September 20,  1996, cure  notice making the  new
   completion date October 15,  but stating that the  contract would
   be   in   default   if   work   was   not    finished   by   that
   date.[foot #] 7       Appeal   File,    Exhibit 21;   Appellant's
   Exhibit 59.  Specifically,  the cure notice stated,  in pertinent
   part:
 
        American  Sheet  Metal  is  hereby  notified  that  the
        Government has determined that your contract will be in
        default for the  following reasons:  failure to  comply
        with your submitted progress schedule, unable to finish
        the  contract  on   the  scheduled  September 27,  1996
        contract   completion    date,   and    the   incorrect
        installation  of a  large portion  of the roof.   These
        failures  have not  had  an  adequate explanation  that
        would cause  the Government  to  extend your  contract.
        Therefore, unless this condition is cured within 7 days
        after  receipt  of  this  notice,  the  Government  may
        terminate for default under the terms and conditions of
        the project contract.
 
        . . . .
 
        In  response  to  your  letter  dated  August 5,  1996,
        requesting  an  additional  29  day  extension  to  the
        contract,  the  Government  is  willing  to extend  the
        contract an additional 18  calendar days, which extends
        the contract completion date to October 15, 1996, at no
        additional cost  to the  Government.   The Government's
        responsibility for  time extensions  is  only for  days
        that are  considered acts  of  God which  in this  case
        would  be hurricanes.  The Norfolk area has experienced
        approximately 8  days  of hurricane  activity, and  the
        remaining 10 days are given to  your (sic) as a sign of
        good faith.   The Government  is providing the  18 days
        even though American Sheet Metal walked off the job for
        approximately  4  weeks   due  to  other   obligations.
        American Sheet Metal  worked only nights for  the first
        two months of the contract, during which some days, the
        weather  was  suitable for  roofing.   It  was  by your
        choice to work at night for the area of roof you worked
        on,  and work  was frequently  stopped  due to  evening
        showers.
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 7 In   its   answers    to   interrogatories,   GSA
   characterized both the September 20 and October 10, 1996, letters
   as  cure notices.   Respondent's Response to  Interrogatory No. 6
   (Sept. 9, 1997); Appeal File, Exhibits 21, 25; Transcript at 185;
   see also Transcript at 99.
   ________
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        However,  as mentioned  above, the  Government requests
        written notice as to how the contractor intends to cure
        this  situation.     Your  corrective  plan   shall  be
        documented in a  letter, stating how and when  you plan
        to  correct   the  above   mentioned  problems.     The
        Government will  review your  performance against  your
        written corrective plan,  and evaluate your performance
        against  your new progress schedule.  If American Sheet
        Metal  shows vast improvement, and completes 80% of the
        contract work  by the  new October 15,  1996 completion
        date, the [G]overnment  may choose not to  default your
        company.     If   American  Sheet   Metal  shows   vast
        improvement,  and remains  on  the project,  liquidated
        damages  will be [assessed] at $326.00 per calendar day
        past the new  October 15 deadline.  This  deadline will
        not change.
 
   Appeal File, Exhibit 21; Appellant's Exhibit 59.
 
        The mailed copy of  the September 20, 1996, cure  notice was
   not received  by ASMC until  4:20 p.m. on  September 30.   Appeal
   File,  Exhibit 22.   A copy  of  this letter  sent via  facsimile
   machine  was   received  by   appellant  on   the  afternoon   of
   September 27, 1996.  Id.  
        In   response  to   the   September 20  cure   notice,  ASMC
   accelerated its efforts on the Norfolk Federal Building, adding a
   few  more  men   and  working  different   areas  simultaneously.
   Transcript at 667.  In the latter part of September or  the first
   part of October  1996, the contracting officer  telephoned ASMC's
   president  and expressed  concern  that ASMC  would be  unable to
   complete the roofing within the specified time.  ASMC's president
   assured  the contracting  officer that  ASMC  would complete  the
   eighth floor by October 21, that  the second floor would probably
   be completed in two weeks,  and that the entire project  would be
   finished by October 31.  Id. at 762-63.
 
   The COTR's September 26 Letter
 
        By letter  dated September 26, the  Government approved  the
   proposed corrective  system for  the upside  down insulation  and
   requested  shop drawings  and a  reworded  warranty from  Siplast
   stating that the insulation "is deemed [to be a] part of the roof
   membrane  system  and  installed   according  to  Siplast,   Inc.
   specifications."      Appeal    File,   Exhibit 20;   Appellant's
   Exhibit 58.  The COTR's letter stated:  
 
        This  letter is in  response to your  September 4, 1996
        letter, requesting  the government's  approval for  the
        proposed recovery system.  At this time, the government
        will  accept your  proposed 3/4  inch  fiberglass board
        (maximum panel  size must  be 48  inches by  48 inches)
        applied to hot  asphalt over the existing  Paradiene 20
        surface.    As  indicated  by  Siplast,  the fiberglass
        insulation  provides   a  suitable   surface  for   the
 
        installation of  the two-ply  Paradiene roof system  in
        Type  IV  asphalt.   Prior to  the installation  of any
        recovery material,  American  Sheet  Metal  (ASM)  must
        submit  shop  drawings  for the  government's  approval
        detailing the recovery system,  and its relationship to
        the  parapets, drains, window washing hooks, vents, and
        all adjacencies.   Siplast  is required  to change  the
        wording of the  warranty amendment, as indicated  on an
        attachment to this letter, prior to  the government[']s
        approval and payment for the sixty four (64) squares of
        roofing in question.
 
        . . . .
 
        ASM is reminded that as-built drawings are contractual,
        and   the  drawings   should  accurately   record  this
        modification,   and   all  other   conditions   of  the
        roof. . . .
 
        General Services Administration (GSA) is concerned with
        the  scheduling  performance  of  ASM, and  GSA  hereby
        reminds you  that  a cure  notice  was issued  to  your
        company.  ASM  is required to write a corrective action
        plan,  detailing  how  and when  ASM  will  finish this
        project  and  submit  it  to  GSA.   This  ASM  written
        corrective  plan  shall  specifically  detail the  work
        schedule, and  detail any actions ASM will do to finish
        this project in an efficient  timely manner.  GSA would
        like to avoid  liquidated damages, but will  enforce it
        emphatically  as  of  October  15,  1996,  if  ASM  has
        completed 80% of  the project, and is not  removed from
        the project.
 
        Upon  receipt  of   the  Government's  September 26  letter,
   appellant's vice president called the COTR and obtained his  oral
   approval  to include the corrective solution on as-built drawings
   rather than  on shop drawings.  Transcript at  754-55.  It was on
   that  basis   that  ASMC   went  forward   with  this   solution.
   Id.[foot #] 8       Appellant    never    submitted   the    shop
   drawings.  Id. at 175, 263, 613-14.  Although at trial,  the COTR
   testified  that he believed  that shop drawings  were significant
   because  there  was  a  question  regarding  the  effect  of  the
   additional   layer  on  the  roof  on  drainage  channels,  other
   obstructions  and  conditions,  the  record  indicates  that  the
   Government  did not require  shop drawings before  the corrective
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 8 Although the  COTR  testified  that  he  did  not
   recall  whether  he  authorized ASMC  to  install  the corrective
   solution  on  the  eighth  floor,  the  weight  of  the  evidence
   indicates that  the Government  approved the  solution.   Compare
                                                             _______
   Transcript  at 320  with  id.  at 531-37,  693-94,  754-55.   The
                       ____  ___
   contracting officer testified  that he did  not know whether  GSA
   ever officially rejected this solution.  Id. at 107-09.
                                            ___
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   solution was  installed.  Id.   Rather, the COTR  orally approved
   this corrective solution and  authorized ASMC to install  it, but
   wanted to see how ASMC would  complete the work.  Id. at  262-63,
   303-04, 534, 536-37,  693, 754-55; Appeal File, Exhibit 20.   The
   Government's  inspector  testified  that   the  approval  of  the
   solution was  not based upon  shop drawings, because  all parties
   had  the  information   necessary  to  evaluate  the   corrective
   solution, which the manufacturer was warranting, long before shop
   drawings would have been issued.  Transcript at 615-18.
 
 
        By letter  dated September 30, 1996,  appellant advised  GSA
   that the  insulation to correct  the sixty-four squares  had been
   ordered  immediately and had  arrived that morning.   That letter
   further  stated:  "As soon  as  this current  weather  front that
   arrived  Saturday  morning  September 28, 1996  and  has lingered
   since leaves  the  area we  will  immediately begin  roofing  the
   corridor  and  correcting  the  64  square  error."    The letter
   continued:  
 
        During  the  week beginning  October 7,  1996, assuming
        weather is permissible, we must complete the following:
 
             PENTHOUSE AREA:
                  All Base Flashing
                  All Counter Flashing
                  All Walkpads
 
             8TH FLOOR AREA
                  All Base Flashing
                  All Counter Flashing
                  All Walkpads
 
             We will need  Nine (9) days with  the goal to
             complete by October 15, 1996.
 
        Assuming the  Weather works  in our  favor  we will  be
        ready to  begin the  Second Floor  Roof by  October 16,
        1996.  It will take approximately  two weeks from Start
        to Finish  on this portion  of the project.   This will
        complete our contract.
 
   Appeal File, Exhibit 22.
 
        By contract modification CO5,  effective September 30, 1996,
   the  completion date  was extended  to October 15, 1996.   Appeal
   File,   Exhibit 23.    The  modification  was  accompanied  by  a
   memorandum  which read: "This  modification was issued  to extend
   the delivery date from September 27  to October 15, 1996.  It was
   issued to give the contractor extra days due to rain and them not
   being 50%  complete.  Note:  This mod is  GSA's attempt at  ADR."
   Id.
 
        ASMC lost two  days of progress when it  applied the overlay
   to  correct the  sixty-four  squares  of  insulation  which  were
   installed upside down.   Transcript at 734.   Appellant lost days
   from  September 28 through  October 2,  1996,  due  to  rain  and
   ponding water.  Appeal File, Exhibit 24; Appellant's Exhibit 117.
   As of October 3, 1996, appellant was removing water from the roof
   so  that it  could begin tear-off  that night.   By  letter dated
   October 3,  appellant  submitted a  revised  schedule based  upon
   these weather delays and a job site meeting.  Id.   This schedule
   called for completion of the eighth floor roof by October 17, the
   second  floor  roof  by October 10,  and  the  remaining  work by
   October 31.  Id.
 
 
        The October 31 overall completion  date, which was submitted
   in ASMC's October 3 schedule, did not include the five days which
   were  lost  between  October 3 and  October 10  due  to inclement
   weather.  Transcript  at 719.  By letter  dated October 10, 1996,
   ASMC  advised GSA of  work done between  Thursday, October 3, and
   Sunday, October 6 and noted it lost  five days of progress due to
   rain and ponding.   Appellant's Exhibit 66.  In  that letter ASMC
   included a revised schedule showing  a revised completion date of
   October 20 for the  eighth floor roof  but keeping October 31  as
   the overall completion date.  Id.   By letter that same day,  the
   contracting  officer  granted  ASMC an  additional  five  days to
   complete the  eighth  floor,  but did  not  expressly  address  a
   deadline for overall  completion   except to state  that he would
   reassess  ASMC's performance  later.   Appeal  File,  Exhibit 25;
   Transcript at 671.  The contracting officer's letter stated:  
 
        This letter  is intended to  remind you of  the serious
        lack of progress your company is  making on the Norfolk
        Federal Building  Roof  Repair.   The revised  contract
        completion  date ends  this Tuesday,  October 15, 1996.
        General  Services Administration  (GSA) is  considering
        [its] options if your company does not make significant
        progress   this  weekend.    At  this  time,  only  the
        penthouse  roof, out  of the three  roofs, is  close to
        being completed.   Approximately  sixty percent of  the
        eighth floor  roof  still remains  incomplete.   Unless
        your  company  can  show  more  effort  than  has  been
        displayed in  the last  week the  Government will  take
        action  to protect [its] interests.  We had expected to
        see weekend work  and night shifts,  there has been  no
        evidence  of this  so  far.   The  Government is  being
        unduly   burdened   by   your   compan[y's]   lack   of
        performance.   The second  floor roof, which  is having
        the  worst infiltration problems, will not be worked on
        for  several   weeks.    This   situation  is  entirely
        unacceptable.
 
        Due to  the inclement  weather over the  last week,  we
        have  decided to issue another extension, this for five
        days, to complete the 8th floor only.  After that time,
        we  will assess  your  performance  in  light  of  your
        continuing  on the contract.  This extends the contract
 
        completion  date  from October 15th,  to  October 20th,
        1996.
 
   Appellant's Exhibit 63.
 
        Although  GSA's October 10  letter  extended the  completion
   date  for  the  eighth  floor  roof  until  October 20,  contract
   modification   PCO7   extended   that   completion   date   until
   October 21.[foot #] 9      The   modification   also   did    not
   establish a completion  date for the overall  job, stating: "This
   modification  is  issued   to  extend  the  delivery   date  from
   October 15 to  October 21, 1996 to  finish the 8th  floor roofing
   only."    Appellant's   Exhibit 65.    The   contracting  officer
   testified that GSA issued this extension to give ASMC a definable
   milestone, the eighth floor only, and that the overall completion
   date for the project was October 31, if ASMC managed to reach the
   eighth floor milestone.  Transcript at 54.
 
   Contact with the Reprocurement Contractor
 
        The contracting officer had been in contact with a potential
   reprocurement contractor, National  Roofing Corporation (NRC), in
   the  October 10  time  frame.    Transcript at  117-21.    As  of
   October 10,  the  contracting  officer   testified  that  he  was
   "probably"  making  preliminary   plans  with  the  reprocurement
   contractor to take  over the work, "but these  weren't plans that
   couldn't have  been called off  if the performance  had increased
   during that  period."  Id. at 120.   The inspector spoke with the
   COTR  on  the afternoon  of  October 11  and  was told  that  the
   Government was  bringing in a  reprocurement contractor.   Id. at
   551.[foot #] 10     The   COTR   asked   the  inspector's   views
   on this  contractor and  materials that  were being  recommended.
   Id.  The inspector, after  consulting with his office, questioned
   the COTR  as to  why "if  he approved  one roof  system he  would
   change in midstream," stating:
 
        I've never  heard of that  before, and when  you've got
        warranty questions, you know, one manufacturer is going
        to  stand back and point at that line and say that's on
        your side, and the other one  is going to -- they  just
        wouldn't  -- how  would you  tie it  together  and, you
        know, roofing materials are not just roofing materials.
        They're  not   necessarily  compatible.    So  . . .  I
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 9 The   contracting   officer   acknowledged   that
   October 21 was the new completion date for the eighth floor roof.
   Transcript  at 57-58.   The  notice of  default also  referred to
   October 21 as the new completion  date for the eighth floor roof.
   Appeal File, Exhibit 30.
 
        [foot #] 10 The Government inspector  recalled that he spoke
   with the COTR  on this  date based  upon an entry  in his  diary.
   Transcript at 551-53; Appellant's Exhibit 45.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        remember  asking him  how he  was going  to remedy  the
        situation  where the roofs  actually come together, and
        it was his  response that he wasn't real  sure, that he
        thought they would  complete the eighth floor  with the
        Siplast system  and then  change systems  on the  lower
        roof, . . . .
 
   Id. at 551-52.
 
        NRC was planning  to use materials manufactured  by Soprema.
   In order to  obtain the necessary thickness of  the roof, Siplast
   called for  two plies  of membrane but  Soprema called  for three
   plies, and  the application  processes of  the two  manufacturers
   differed.   Transcript at 299-300.   The Government inspector was
   advised that absolutely under no  circumstances was he to mention
   to ASMC  the possibility of a new  contractor being hired; he was
   "sworn  to secrecy."   Id.  at 553.   The inspector  conveyed his
   concern about having two different manufacturers to the COTR well
   before October 18.  Id. at 551.
 
   ASMC's Acceleration
 
        After the second  extension, ASMC stepped up  its production
   efforts  and  put  more  people  on the  job  to  accelerate  its
   progress.   Transcript  at 672,  720.   ASMC staffed  the job  as
   follows:
 
        Date                   Men             Man hours
 
        Fri. Oct. 11       15           123
        Sat. Oct. 12       11            99.5
        Sun. Oct. 13        9            53.5
        Mon. Oct. 14       23           199
        Tues. Oct. 15      17           150
        Wed. Oct. 16       13            85
        Thurs. Oct. 17     10            81
        Fri. Oct. 18       25           189
 
                                                            Total
   980
 
   Appellant's Exhibit 206.  The contracting officer did not dispute
   that ASMC was accelerating its work.  Transcript at 160.
 
        ASMC's project  manager credibly  testified that  during the
   extension period ASMC intended to increase its crew sizes because
   it was finishing up other jobs:
 
             After I would  say beginning the last ten  days or
        so   of  the  contract,  we  were  finishing  up  other
        projects.  It  was our intention that we  would man the
        federal building with  ample people, meaning increasing
        the crew sizes.
 
             Unfortunately, when  we were beginning to do this,
        we were ordered off the project on the 18th. . . .
 
             It was our  intention to push as hard  as we could
        to  come off of that  eighth floor by October 21st, set
        up on the  second floor, and push  with everything that
        we   could  to  complete  the  project  as  quickly  as
        possible, that is the second floor roof.
 
             . . . .
 
             .  . .  We were  working the  one  crew.   We were
        making  preparations to work longer hours, meaning that
        we were anticipating having one crew work so many hours
        and  another crew.   We  were in  the process  of doing
        that,  like I  said, and  it's  unfortunate that  right
        there at the very last.
 
   Transcript at 20-21.
 
   Drafting the Determination Supporting Termination
 
        On October 15  or 16,  1996, the  contracting officer  began
   drafting a  Determination of Findings Supporting  Termination for
   Default,  which provided, "[a]llowing  ASM[C] to continue  on the
   project . . . was no longer deemed to be an acceptable  course of
   action."
 
        It  was determined  that  there  was  a  suitable  firm
        already  under  contract  with  GSA  in the  Chesapeake
        region.  This firm agreed to take a look at the  job to
        determine  whether they  would be  willing  to take  it
        over.   They have preliminary  [sic] agreed to  take it
        on, subject to successful negotiations.
 
   Transcript at 125, 152; Appellant's Exhibit 132.
 
        By letter  to GSA  of October 15, 1996,  an employee  of the
   Customs  Service stated that  lately "the roofing  contractor has
   seemingly  increased dramatically the  'heavy' work on  the roof,
   noting that employees had been barraged during the past two weeks
   with loud  bangs from heavy  items being dropped onto  the roof."
   Appellant's Exhibit 67.
 
   The Inspection by Siplast's Inspector
 
        Siplast's inspector, Vernon Garbett, conducted an inspection
   of the eighth floor roof on October 16, 1996.  Transcript at 472.
   He viewed the entire roof at that time and based upon  his visual
   inspection  estimated  the  percentage   of  completion  of   the
   application  of  certain Siplast  materials  to  be 70%  for  the
   Paradiene 20   and    Paradiene 30,[foot #] 11   and    40%   for
   Veral  aluminum, the last product to be  applied.  Id. at 472-75.
   In his report Mr. Garbett noted the following comments:
 
 
        1.   Application of  the Paradiene 20 and  Paradiene 30
             appear to be progressing well.
        2.   Drain  sumps: Install Veral in sumps to cover cuts
             in the Paradiene 30.  Veral must extend under  the
             clamping rings.
        3.   Fishmouths in the Paradiene  20: Strip-in ply must
             be repaired before the Veral is installed.
        4.   Area  of Paradiene  20  by door  way  needs to  be
             inspected  for  drainage  and patched  before  the
             Paradiene 30 is installed.
 
        . . . .
 
        The above  recommendations and advice  are intended  to
        help  the contractor construct the membrane system in a
        manner suitable for the Siplast Guarantee.
 
   Appeal File, Exhibit 20.
 
        Between  October 11 and  18,  ASMC  performed the  following
   work:  removed  the  east  corridor  roof  on the  eighth  floor,
   installed  all tapered insulation, installed all cap sheet except
   for a  small area  toward  the south  end of  the corridor  area,
   corrected the sixty-four squares on  the north eighth floor roof,
   installed Veral flashings  on both  the penthouse  roof and  half
   moon  roof, removed  and  made water-tight  the perimeter  of the
   south end, and removed the last of the asbestos.  ASMC was in the
   process  of installing  the flashings  at the  cooling  tower and
   moving  the kettle  from the  eighth floor  to the  ground level.
   Transcript at 673; see Appellant's Exhibits 22, 23.
 
        By letter dated October 18,  1996, ASMC advised GSA that  it
   would  still remain on  schedule on the  eighth floor  roof if it
   could  "have a good Friday, Saturday, and Sunday," October 18-20,
   1996.   It detailed additional  progress on the  building, noting
   that  it  had  worked  both  Saturday,  October 12,  and  Sunday,
   October 13.  Appellant's Supplemental Appeal File, Exhibit 21.
 
   The Termination for Default
 
        By  letter dated  October 18,  1996,  GSA terminated  ASMC's
   contract   for  default   effective  immediately.     Appellant's
   Exhibit 70;  Appeal  File,  Exhibit 30.   The  notice  of default
   provided, in pertinent part:
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 11 Paradiene 20   and   Paradiene 30   are  roofing
   membranes  that   are  applied   over  the   tapered  insulation.
   Transcript  at   731.    Paradiene 20  is  the   base  sheet  and
   Paradiene 30 is the top sheet or "white cap sheet."  Id.    
                                                        ___
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        Under the terms of the contract, completion of the work
        was   expected  by  September 27,   1996  but   it  was
        approximately  only 40% complete  (and 17% of  that was
        installed incorrectly).  We extended the delivery  date
        to October 15, 1996  at this time your company was only
        approximately  52% complete.   The date was  extended a
        second time to October 21, 1996 and the  project is now
        only approximately 61% complete.  The low percentage of
        completed  work is directly  related to  your company's
        more  than four  (4)  week work  hiatus.   However,  at
        minimum, approximately  40% of  the work  is still  not
        complete and  cannot be completed by  October 21, 1996.
        Insufficient progress has  been made towards completing
        the roof.  Your firm has repeatedly failed to meet your
        own  performance milestones.   Your firm has  failed to
        furnish a realistic work schedule.
 
        During the past  one hundred fifty (150)  working days,
        there was enough clear weather working days to complete
        this  project.  The Government extended the contract an
        additional twenty[-]three (23) days, and still American
        Sheet  Metal  lacked  performance.    For  example,  on
        October 13, 1996  American  Sheet Metal  worked only  a
        half day,  while facing  an October 15,  1996 deadline.
        This disregard  of completion dates  has influenced the
        Government's  decision.  In total, your firm has failed
        to  prosecute the  work with  the  diligence that  will
        insure  its completion within the time specified by the
        contract. . . .
 
        You  are  instructed  to  stop  work  immediately,  and
        instruct all  workers not  to report as  of the  end of
        such  work.  You  should notify your  subcontractors of
        the termination.  The Government will notify them as to
        the status of continuing work. . . .  Further access to
        the  site  will  be  limited  to  removal  of  personal
        effects, and property determined not Government owned.
 
   Appeal File, Exhibit 30.
 
        In  addition, the notice of default termination contained an
   attachment, Contractor Performance and Schedule Comparison, which
   stated:
 
             May 30th Project Progress Schedule
                  Phase I - 8th floor roof complete June 22
                  Phase II - Penthouse roof complete Sept. 14
                  Phase III - 2nd floor roof complete Sept. 30
 
             Actual Performance
                  Phase I - As of  June 22, 1996 64 squares out
                  of   154   squares    have   been   installed
                  incorrectly, no further work was continued on
                  the 8th  floor due to this  contractor error.
 
                  Contractor  made proposal  to recover  faulty
                  roof.
                  Phase II - Contractor begins penthouse  roof,
                  but leaves project [site] on August 12,  1996
                  to finish other obligations.   No substantial
                  work was completed  on phase II on  Sept. 14,
                  as indicated by the May 30 progress schedule.
                  Phase III - Zero percent of the roof complete
                  on September 30, 1996.
 
        On  October  3,  1996  the  Government  grants  18  day
        extension  in attempt  to  facilitate the  Contractor's
        performance.   From  September 27, 1996  to October 15,
        1996.
 
             Revised Progress Schedule dated October 3, 1996
                  Phase I - 8th floor roof complete October 17, 1996
                  Phase  II -  Penthouse  roof complete  October 10,
   1996
                  Phase  III - 2nd  floor roof complete  October 31,
   1996
 
             Actual Performance
                  Phase I - Contractor successfully recovers 64
                  squares of  faulty roofing on  the 8th floor.
                  (*note  Pending  government   inspection  for
                  approval)    Contractor   has    successfully
                  completed  107 squares of new roof out of the
                  154 squares.   (*this  does not include  walk
                  pads,    lightning     protection,    utility
                  reconnection and punchlist)
                  Phase II - Penthouse roof complete except for
                  walk pads, lightning protection and punchlist
                  items.
                  Phase  III  -  At  this   time  zero  percent
                  complete
 
        On  October  10, 1996  the  Government grants  a  5 day
        extension, again in an attempt to facilitate contractor
        completion.   The  new completion  date is  October 21,
        1996.
 
             Revised Progress Schedule dated October 10, 1996
                  Phase I - 8th floor roof complete October 20,
                  1996
                  Phase  II -  Penthouse roof  complete October
                  10, 1996
                  Phase III -  2nd floor roof  complete October
                  31, 1996
 
             Actual Performance
                  Phase I -  Given the pace of  the contractor,
                  he will  not be able [to] finish  the roof by
                  new deadline.   As of  October 18, contractor
 
                  has 47 squares to roof and detail to install.
                  At no time in this project has the contractor
                  displayed his  ability to install  47 squares
                  of  roofing in 3 days.  The contractor on the
                  days of October 11 through  the 14th, with no
                  weather constraints, installed  20 squares of
                  roof.  However the contractor did recover the
                  faulty roofing on the 8th floor.
                  Phase II  - As of October 18, 1996, walk pads
                  are  being  installed,  and roof  will  ready
                  punch  list inspection  at  day's end.    The
                  lightning   rod  protection   has  not   been
                  reinstalled.     Note   a  clarification   is
                  outstanding    on    the    light[n]ing   rod
                  protection.  This was intended to be resolved
                  when the contractor was ready to proceed with
                  the lightning rod reconnection.
                  Phase  III -  At  the  current  pace  of  the
                  contractor, the  8th floor  roof will  not be
                  finished  until  approximately  October 25th,
                  thus the deadline of October 31st to complete
                  the  97 squares of  the second floor  roof is
                  not realistic.[[foot #] 12]
 
   Appeal File, Exhibit 30; Appellant's Exhibit 70. 
 
        In explaining  his decision that  he had no  confidence that
   ASMC  would  be  able  to  complete  the  eighth  floor  roof  by
   October 21  or the  entire project  by  the end  of October,  the
   contracting officer testified: "Because their progress up to that
   time, even when  they were working, their production  rate was so
   poor  that  if  you  did   an  extrapolation  of  what  they  had
   accomplished in  their three to  four, five months that  they had
   the project,  there was no way that production rate would lead to
   a  conclusion  on those  other  floors by  the  October 31 date."
   Transcript at  58.  The  contracting officer's estimate  that the
   job was 61% complete as of October 18 was the opinion of the COTR
   relayed to the contracting officer, based  solely upon squares of
   roofing  completed as  a  percentage of  total  squares of  field
   membrane installed and did not include flashing work.  Id. at 57,
   265; see  id. at 673.   Neither  the contracting officer  nor the
   COTR  observed  the roof  in making  this estimate.   Id.  at 42,
   116-17,  846.   The  COTR  derived a  "production  rate" of  five
   squares  per day  based  upon  the fact  that  there were  twenty
   squares of field membrane  installed between October 11-14, 1996,
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 12 There   was   no  formal   modification   making
   October 31 the deadline for overall project completion.  However,
   the notice  of default  and the  contracting officer's  testimony
   extinguished  the prior  overall completion  date of  October 15.
   Appeal File,  Exhibit 30; Appellant's  Exhibit 70; Transcript  at
   54.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   a single four-day period, as  reflected in the HDH reports.   Id.
   at 267-68.
 
 
        The COTR testified:
 
             Q    [N]ow, if  you  count  squares  to  determine
        percentage of completion, doesn't that  assume that the
        amount  of  labor,  material  and  effort  required  to
        install a single square is uniform over the entire job?
 
             A    It does, and  it's a clumsy  way to mark  the
        progress of  the contractor.   We had a  very difficult
        time with the  project schedule . . .  and the schedule
        of values.   We're not  very sufficient [sic]    if you
        look in the FAR [Federal Acquisition Regulation] clause
        where  it talks about  the schedule of  values, it says
        that we can monitor  the progress as we see  fit, if we
        don't have a good schedule of values, which we didn't.
 
        And  it is  true the  flashing work  is far  more labor
        intensive than installing fields.
 
   Transcript  at  351.     The  COTR  acknowledged  that  it  "most
   definitely"  took longer  to  install a  square  roof around  the
   cooling tower which is a difficult spot to work because it is low
   and people are  working on  their backs  and there are  a lot  of
   penetrations."   Id. at  351-52.   In the  view of  the COTR  the
   percentage  of completion  should have  been even  less than  61%
   because this estimate  did not include the flashing  that was not
   complete.  Id. at 265.
 
        At the time  ASMC's contract was terminated, GSA ordered all
   ASMC's workers off the job immediately.  Transcript at 297, 675. 
   ASMC advised GSA that the south tower had a temporary roof around
   the perimeter in  place and continued: "Because of  the nature of
   this roof, your failure to permit our crews access to continue to
   secure  this roof  prior to  future rain  storms and  wind damage
   leaves us no choice but to inform  you that [ASMC] cannot be held
   responsible for  any damages which  may occur  to any  property."
   Appellant's Exhibit 75.
 
        At the time that ASMC was asked to leave the job, there is a
   conflict in the record as to the state of the roof.  According to
   the COTR, about 150 linear feet of  flashing was left open on the
   Granby Street  side of  the north eighth  floor roof,  and "there
   [was] no way that ASMC could have finished making that area water
   tight that afternoon."   Transcript at 323.   According to ASMC's
   project manager, on the date it was terminated, ASMC cemented any
   areas of concern, but admittedly  the Veral flashing had not been
   installed.   Id.  at  723.   Therefore,  ASMC  applied  temporary
   flashing  which was pushed  up underneath the  counterflashing to
   seal it in a water-tight condition.  However, the project manager
   explained: "[T]hese were temporary measures and being ordered off
   the job was subject to wind, rain, over a period of weeks."  Id. 
   ASMC worked until late  in the day it was terminated so as not to
   leave the roof open or subject to damage.  Id. at 676-77; see id.
   at 703-04, 723; Appellant's Exhibit 98.
 
 
        The  inspector  observed  the  entire  roof  on  October 18.
   Transcript at 539-40.  Based  upon the inspector's observation of
   the methods of construction and the corrective  solution that was
   applied, he opined that  the roof was sound.   Id. at 540.   This
   inspector testified that the counterflashings on the eighth floor
   roof north wing were sufficient to seal the roof.  Id. at 543-44.
   However, he also testified that  ASMC was not permitted to finish
   the   crickets[foot #] 13  before   it   was   ordered  off   the
   job  and  that  ponding  existed  on the  day  the  contract  was
   terminated   because  of  the  absence   of  crickets.    Id.  at
   544-47.[foot #] 14
 
        In ASMC's project manager's view, the eighth floor roof  was
   90% complete, and  the entire job was 70% complete at the time of
   termination.  Transcript at 677,  685-86.  He based this estimate
   on the number  of squares, the linear feet  of flashing, asbestos
   abatement,  and the understanding that the completed eighth floor
   work along  with the  penthouse, half circle,  and cooling  tower
   contained both a majority of the work and the most difficult work
   of the  project, given the  linear footage of flashing,  the wind
   factor on  the eighth floor and  the penthouse, and the  need for
   the crane.   Id.  at 677-79;  see id.  at 647-49.   According  to
   ASMC's project  manager,  ASMC  would  have  reached  substantial
   completion  by October 21, leaving  only some punchlist  items on
   the eighth floor level, and would have completed the second floor
   in two weeks.  Id. at 679.
 
   The October 24 Infrared Survey
 
        There  was rainfall  from October 18,  1996,  when ASMC  was
   terminated,  to October 19,  1996.    The  National  Oceanic  and
   Atmospheric Administration (NOAA) Survey shows thunderstorms  and
   1.2  inches  of  rain  during  that  time  period.    Appellant's
   Exhibit 114 (Oct. 1996).  
 
        Respondent's  expert  engaged Jersey  Infrared  Consultants,
   with  whom he  was  very familiar  and held  in  high regard,  to
   perform  an infrared  survey to  determine the  condition of  the
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 13 Crickets are  superimposed insulation  to divert
   water  toward the  drain or  divert water  from obstructions  and
   prevent ponding.  Transcript at 544.
 
        [foot #] 14 The  Government's  inspector  was not  asked  to
   provide an estimated percentage of completion at the hearing, and
   the HDH  Field Reports  for October did  not contain  entries for
   estimated percentage of completion; only a few reports earlier in
   the  job   contained  an  estimated   percentage  of  completion.
   Appellant's Exhibit 98.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   roof.[foot #] 15        Transcript    at    392-93.        Jersey
   Infrared   performed  an  infrared   survey,  also  known   as  a
   thermographic moisture  survey, on October 24; it  surveyed every
   inch of  the roof  to detect moisture  and took  moisture probes.
   Id. at 394.  This survey documented that there was no moisture on
   the completed roofs.   Id. at 394,  415; Appellant's Exhibit 178.
   All  observed  test  locations were  marked  "dry."   Appellant's
   Exhibit 82.    The  survey  was  conducted  in  conformance  with
   applicable standards and was very thorough.  Transcript at 774.
 
   The October 25 Inspection
 
 
        On October 25, 1996, GSA's inspector, along with appellant's
   and  respondent's  experts and  Siplast's engineer,  examined the
   completed work on the roof.  Appeal File, Exhibit 81. The Siplast
   representative by  letter  dated November 1  confirmed  that  the
   condition  of  the  roof  system  was the  same  as  reported  on
   October 16, 1996, and that the  roof would be eligible to receive
   a   Siplast  warranty  provided  it  was  completed  per  Siplast
   specifications.  Appellant's Exhibit 86. 
 
   Appellant's Expert's Conclusions
 
        Ms.   Deborah   Evans,   appellant's   expert   in   roofing
   construction engineering, consulting, and testing and evaluation,
   inspected the roof on October 25 and documented the condition  of
   the  roof as it existed on that  day.  Transcript at 772-73.  She
   concluded that the  visible roof areas completed by  ASMC were in
   conformance with standard practice  and Siplast details.   Id. at
   779.   She explained: 
 
             The  conclusion was that  the roof areas  that had
        been completed by  American Sheet Metal appeared  to be
        in   general  conformance   with  Siplast   recommended
        details.  I  used the word  general just because  there
        were some  uncompleted areas.
 
             There were some flashing details that had not been
        completed at the time of my inspection, and  there were
        a few punch list type  items that were noted, which are
        small  deficiencies  that  need  correction, which  you
        typically pick up at the end of a completed roof job.
 
   Id. at  777.  Appellant's  expert described the condition  of the
   roofs installed by ASMC as follows:
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 15 According to respondent's  expert, water trapped
   below the second membrane or very deep into the roof would not be
   possible to detect in an  infrared survey.  Transcript at 394-95.
   On  approximately November 10-12,  respondent's  expert was  told
   water had  been found underneath the roof,  below the insulation.
   Id. at 395-96. 
   ___
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        They were in  good condition.  The  roof insulation was
        dry.    The  flashings and  a  few  other details  were
        incomplete  at that  time.   The roof  was sealed  in a
        watertight temporarily flashed condition.  Generally it
        was in  good condition,  looked like  a new roof,  very
        little as far as minor repairs or defects.
 
   Id. at 780.
 
        Appellant's expert testified  that water on a  roof deck can
   be caused by many  things besides a  faulty roof.  Transcript  at
   806-07.    This expert  testified  that  water  on the  deck,  in
   particular condensation, is  typical and was not cause  to remove
   or  repair  the roof  since  there  was  no indication  that  the
   insulation was wet.  Id. at 803-14; cf. id. at 465.
 
   Respondent's Expert's Conclusions
 
        Mr. Herbert Cannon, respondent's expert in roof construction
   and repair, was retained by GSA in mid-October 1996 to perform an
   inspection  on the  completed  roofing  work  and  determine  the
   completeness of the  work and what corrective measures  needed to
   be taken.   Transcript at 365-68.   Mr. Cannon was also  asked to
   look  at options  of how  logistically to  bring on  a contractor
   fairly quickly.  Id. at 368.  Although Mr. Cannon's contract with
   GSA authorized  him to perform  all necessary test cuts  to fully
   and thoroughly document  the work of  ASMC, he did  not take  any
   test cuts.  Id. at 412-13.
 
        In  his  report  dated  October 31,  1996,  based  upon  his
   inspection of the  roof on October 25, respondent's  expert noted
   nine items  in the eighth  floor roof  area.   These items  were:
   loose  field laps,  flashings  incomplete,  interply void,  drain
   flashings  damaged   and  not   sumped   as  required,   heating,
   ventilating   and   air  conditioning   (HVAC)  units   were  not
   reconnected, pitch pockets were incomplete, interior storage area
   soiled,  walkpad not adhered, and counterflashing incomplete.  Of
   these   nine   items,   the   flashings,   pitch   pockets,   and
   counterflashings were  incomplete.   Transcript at  420-21.   The
   HVAC units  and  the  walkpads  were  not  deficiencies  and  the
   interply   void  was  "a   very  minor  problem,"   according  to
   Mr. Cannon.  The report did not indicate  that any portion of the
   eighth  floor roof needed  to be removed.   Id. at  421.  Similar
   incomplete flashings, loose field laps, and counterflashings were
   noted on the  eighth floor area surrounding the  cooling area and
   the semicircle.  On the  penthouse there was an eleven-item punch
   list.  Respondent's Exhibit 4.  Nothing  in this report indicated
   that any portion  of the roof installed by ASMC had to be removed
   or that there was nonconforming work which had to be  rejected or
   that further evacuation  or tests cuts were required.  Transcript
   at 778-79.
 
        Respondent's expert testified that on October 25 he observed
   a gap of less than a quarter to three-eighths of an inch wide and
   approximately three  quarters of an  inch to one inch  deep where
   the roof  surface joins  the Granby Street  parapet wall,  and he
   characterized this condition as incomplete flashings.  Transcript
   at 901-04, 908-25; Respondent's Exhibit 23.  Respondent's  expert
   did  not include photographs of  this condition in his October 31
   report.  Transcript  at 908.  Although  respondent's expert later
   testified that this was a "non-watertight" condition,  he did not
   mention that  in his report.   Id.  at 909.   Respondent's expert
   also opined  that no temporary  flashings were installed  in this
   area, but  appellant's expert squarely disputed  this, testifying
   that there was a felt membrane sealed with hot asphalt.   Compare
   Transcript   at  919-20  with  Transcript  at  928-38;  see  also
   Transcript at 540-44.  Both the infrared survey of October 24 and
   the test  cut on  the Granby  Street side  of the  roof taken  on
   November 7  indicated  this   area  to  be  dry.     Respondent's
   Exhibit 12; Transcript at 924-26.
    
   The Insulation Left On Site
 
 
        By   letter  dated   October 31,  1996,  ASMC   advised  the
   contracting  officer  that  it  had  learned  that  some  of  the
   insulation which had been custom ordered for the project and left
   on site  for  the  reprocurement contractor  was  being  used  to
   shelter homeless  individuals and  that such  materials were  not
   securely protected from the elements.  Appellant's Exhibit 78.
 
   The Decision to Hire National Roofing for the Reprocurement
 
        The contracting officer  had an agreement in  principle with
   NRC,   the  reprocurement  contractor,   before  GSA  issued  the
   termination notice on October 18.  Transcript at 148-49.  GSA did
   not conduct  a  new  procurement for  the  roof  completion  job.
   Instead, it  modified an  indefinite quantity  term contract  for
   roofing repairs in Baltimore, Maryland,  between NRC and GSA,  to
   include the Federal  Building roof in  Norfolk with an  effective
   date of November 8, 1996.  The modification increased the maximum
   ordering   limitation   by    $450,000,   from   $556,947.49   to
   $1,006,947.49.    Appellant's  Exhibit 125;  Second Appeal  File,
   Exhibit 12.  The  Government also paid NRC an  allowance for room
   and food in the amount  of $10,238.61 because this contractor was
   not from the area  and needed to house the crews.   Transcript at
   70.  In selecting the replacement contractor, GSA did not contact
   any contractors in the Norfolk area.  Id. at 119.
 
        Respondent's  expert  attempted  to  have  NRC  approved  by
   Siplast, but  Siplast refused to  approve NRC because it  did not
   meet  Siplast's  internal  criteria to  be  a  Siplast installer.
   Transcript  at  409-10.    Therefore,  NRC  had  to  use  Soprema
   materials.  Id. at 410.
 
        On October 28,  1996, NRC began  work on its  contract using
   specifications that were different from the specifications on the
   ASMC  contract.    Transcript  at  433;  Respondent's  Exhibit 9.
   Robert Peters, Vice  President of NRC, was in  charge of handling
   operations on  the job.  Transcript  at 203.   Sorg & Associates,
   P.C.  (Sorg) was the  inspector on the  NRC job for GSA.   Id. at
   489.   Glenn Davis was  the roof inspector  on the job  for Sorg.
   Id. at 490; Respondent's Exhibit 9.
 
 
        On October 29, 1996,  a representative of  Soprema inspected
   the roof and  prepared a punch list which listed nine items under
   the heading  "Work required  on Siplast Roof  for warranty  to be
   issued by Soprema."  Appellant's Exhibit 167.  The punch list did
   not indicate that any portion of the eighth floor  roof needed to
   be removed.  Transcript at 424-26; Appellant's Exhibit 177.
 
        NRC began its work  on the second floor roof and began tear-
   off  of the eighth floor  roof (southeast section) on November 4,
   1996.  Respondent's Exhibit 9.  In his daily inspection report of
   November 5,  1996, Mr. Davis reported  a morning  conference call
   with GSA, stating that:
 
        8-9 a.m.  -- Had  phone with  GSA/Tim Hile  - GSA/Chris
        Horrigan  and  NRC/Bob  Peters  regarding the  existing
        condition  in  which   it  was   found  that   previous
        contractor had failed to properly install the new metal
        base flashing to metal deck with no wd. nailers.
 
   Transcript at 493-94; Appellant's Exhibit 138.  Mr. Peters took a
   photograph showing  the lack of wood nailers,  which he testified
   were not  in accordance with  the specifications.   Transcript at
   214-15; Respondent's  Exhibit 11 at 2.   Mr. Peters wrote  on the
   photograph  "Old  roof  improperly installed  metal  flange under
   insulation --  not in accordance w/specs."   Id.  Mr.  Peters did
   not   review  the  approved  submittals  on  the  ASMC  contract.
   Transcript at 232-33.
 
        On  November  6,  1996,  at  8:00  a.m., there  was  another
   conference  call  among  GSA,  NRC,  and  Sorg.    In  his  daily
   inspection report of that date, Mr. Davis reported:
 
        8:00  a.m.  conf.  call with  GSA/Tim  Hile,  GSA/Chris
        Horrigan,  NRC/Bob  Peters  and  Sorg/Ricardo  Carrasco
        regarding  the  final  decision  on  weather  [sic]  to
        tearoff  the roof  installed by previous  contractor at
        8th floor roof/North and East
 
   Transcript at 494-95; Appellant's Exhibit 139.
 
        Later on November 6, 1996, Mr. Peters made a six-by-six-inch
   test cut at  the perimeter edge of  the eighth floor roof  at the
   Scope  Arena  side  to  see  if  the  lack of  wood  nailers  was
   consistent  throughout  the  roof.   Transcript  at  216, 222-23;
   Respondent's Exhibit 11 at 1.  Mr. Peters testified that from the
   test cut, he  saw that there were  no wood nailers and  there was
   moisture  detected  on  the  steel  deck.    Transcript  at  216;
   Respondent's Exhibit 11 at 1.
 
        The test cut was not sent to a laboratory, but was  put back
   immediately.   Transcript at 223.  No  one from Soprema looked at
   the test cut, nor was respondent's  expert present to look at the
   test cut.   Id.  The only  person who testified that  he actually
   observed the moisture  was NRC's vice  president.  Sorg's  report
   for  that date made no  mention of the  water, but the November 5
   report  did  mention  the  lack of  wood  nailers.   Respondent's
   Exhibit 9,  Sorg  Project Reports  Nos.  9657-9 and  9657-10.   A
   photograph of the  six-by-six-inch test cut taken by  NRC did not
   itself show  water on  the metal deck,  but contained  a notation
   "Scope Arena side,  No Nailers,  Water Detected."   Id.,  Nov. 6,
   1996 Photograph; Transcript at 827.
 
        On  November 7, 1996,  another six-by-six-inch test  cut was
   taken  at the perimeter  edge on  the Granby  Street side  of the
   eighth  floor  roof  and  sent   via  Federal  Express  to   GSA.
   Transcript  at 450;  Appellant's Exhibit 142.   The test  cut was
   dry,  with no  moisture  detected  on  the  deck.    Respondent's
   Exhibit 12; Transcript  at 441,  809-10.   There was  no evidence
   such as a staining  on the test cut  to suggest it ever  had been
   wet.  Respondent's Exhibit 12.
 
        On  November 11  or 12,  a meeting  was conducted  among GSA
   contracting  personnel and  GSA's expert,  and as  a result,  GSA
   decided to remove and replace  the eighth floor roof.  Transcript
   at 272, 306.   The reasons for that decision were that  water was
   detected as a result of the test November 6 cut, the  low parapet
   height, the  ponding water on  the corridor roof, the  tearing at
   the drains, and the cap sheet  ripping because the slope was  too
   severe coming to the drains.  Id. at 273.  In addition, there was
   a lack of a nailer or wood blocking.  Id. at 275.
 
        In deciding to tear off the roof, the COTR contacted HDH and
   complained that its performance had  not been adequate on the job
   since there were supposed to be wood nailers and there were none.
   Transcript at 276.  HDH replied that the lack of a wood nailer in
   the  detail  had been  approved  by  the  COTR in  the  submittal
   process.   Id.   At the  time the  COTR received  the letter,  he
   looked  at the drawings, saw  the submittal, and  saw that he had
   approved it without  the wood blocking and at  that point thought
   he had "made a big  blunder," so he wrote  back HDH and told  the
   firm that  it had been  correct.  Id.  at 277.   Subsequently, in
   conjunction  with this litigation, the COTR reread the submittals
   and determined that the approved submittal did not eliminate  the
   contract requirement for nailers  but was a faulty drawing  which
   gave  conflicting information  and ASMC  was  required to  submit
   contract drawings and a change proposal to alert the COTR that it
   was proposing a change.  Id. at 280.
 
        Another reason for the decision to tear off the eighth floor
   roof was the raised insulation  due to the corrective solution on
   the  sixty-four squares which  caused the  flashing height  to be
   reduced.  The flashing height of the parapet wall was supposed to
   be four  to nine  inches and  appellant's  expert testified  that
   although ASMC had not yet installed the flashings, there was room
   for a four-inch flashing height.  Transcript at 793-94.  The roof
   that NRC installed on the Granby side had a flashing height which
   was three  and  a half  inches.   Id.  at  233.   In  appellant's
   expert's opinion,  a difference  in the  flashing height was  not
   significant and  the  additional  layer  of  insulation  probably
   helped the watertightness of the roof.  Id. at 794.
 
 
        There was no testimony or other evidence in the record, such
   as entries  in Sorg's  reports or  photographs, to  indicate that
   when the  eighth  floor roof  was  torn off  any  other water  or
   moisture was found.[foot #] 16
 
   Differences between ASMC's Contract and NRC's Contract
 
        There was a conflict between the specifications for the ASMC
   contract  and the  NRC contract --  in particular,  regarding the
   membranes.   Transcript at  299.  NRC  installed three  sheets in
   order to  get the thickness  required by the contract  because it
   used Soprema materials and ASMC installed  two sheets because the
   Siplast  materials  which it  used  were  thicker.   Id.    These
   membranes  also had  to be  applied  differently, which  affected
   other aspects  of the work.   Id. at  300.  NRC was  permitted to
   remove the coping on the parapet on the Granby Street side of the
   building; ASMC was not allowed to remove the coping.  Id. at 286,
   293.
 
        HDH was  not the  Government's construction  manager on  the
   reprocurement contract  because neither  Mr. Greer nor any  other
   HDH inspector was available twenty-four hours a day.   Transcript
   at 629.
 
        On  January 13,   1997,  NRC  substantially   completed  its
   reprocurement contract; this was seventy-nine days after it began
   work  and  at  a  cost  of  $425,000.    Respondent's  Exhibit 8;
   Transcript at 352.
 
        Respondent   calculated    adjusted   reprocurement    costs
   chargeable to ASMC as follows:
 
        Contract award to American Sheet Metal Corp.  $ 338,295.00
        Modification PC04                             $   7,345.00
        Modification PC06                             $     985.00
        Total amount of contract                      $ 346,625.00
        Less Value of ASM's work (penthouse)          $ (94,731.03)
        ASM's contract balance at termination         $ 251,893.97
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 16 In contrast,  there was testimony about the lack
   of nailers.  The COTR was asked if there were any nailers present
   when the  entire eighth  floor roof was  removed.   Transcript at
   860.  Neither  he nor any other  witness was asked whether  water
   was detected during that removal.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
        Contract award to National Roofing Co.        $ 425,000.00
        Less cost of work not included in ASM contract        $
   (12,516.68)
        Less ASM's contract balance                   $(251,893.97)
        Excess reprocurement costs                    $ 160,589.35
 
        Cost     of      roof     inspection      at     termination
   [[foot #] 17]                                      $   5,950.80
 
        Property damage caused by ASM
                broken skylight[[foot #] 18]         $
   3,117.00
                damaged carpeting                     $   3,422.22
                                                      $   6,539.22
 
        Liquidated damages from 10/19/96 at $326.00 a day     $
   28,362.00
 
        Total damages and costs                       $ 201,441.37
 
   Respondent's Exhibit 2; Transcript at 72-73.  GSA  modified NRC's
   contract,  increasing its  value to  $1,694,749,  on November 11,
   1996.   Transcript at 196;  Second Appeal File, Exhibit 10.   The
   reprocurement costs included  the cost of tearing  out the entire
   eighth floor roof.  Transcript at 168.
 
   ASMC's Invoice for Work Completed Prior to Termination
 
        On December 12, 1996,  ASMC submitted an  invoice to GSA  in
   the amount of $198,011, representing work performed by ASMC prior
   to   termination.     Appellant's  Exhibit 91.     According   to
   appellant's certified  application for  payment, ASMC  as of  the
   time of termination had completed work valued at $244,529, or 71%
   of its  total contract  price.   Id.  According  to that  payment
   application,  ASMC had  completed work  valued  at the  following
   percentages of the contract  price:  70% of asbestos  demolition,
   75% of  set up and unloading, 86% of  gravel removal, 62% of roof
   removal, 62%  of new  roof  felts, 62%  of asphalt,  62% of  roof
   insulation and screws, 55% of  new wall and curved flashings, 37%
   of new metal fascia installation, and 88% of hoist/crane charges.
   Id.
 
        GSA did not consider ASMC's  request for payment in light of
   its intention  to reprocure  and assess  liquidated damages,  and
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 17 This  amount   was  paid   to  Mr.   Cannon  for
   inspection of ASMC's work.  Transcript at 73.
 
        [foot #] 18 GSA  charged ASMC for  a broken skylight  on the
   second floor roof  because during the time that  ASMC was working
   on the eighth  floor roof, roofing granules broke  the glass, but
   the COTR did not know  how the roofing granules became dislodged.
   Transcript at 348-49.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   there is no discussion of the individual components of this claim
   in the contracting officer's final decision.  Supplemental Appeal
   File, Exhibit 41;  Appellant's Exhibit 95.   By  memorandum dated
   December 31, 1996,  the COTR  recommended that  GSA not  consider
   payment of this  invoice due to  work by ASMC  which he  believed
   needed  to be  corrected or  replaced.   Respondent's  Exhibit 3.
   Further, in assessing reprocurement costs, GSA credited ASMC with
   the  remaining contract balance of $251,893.97, and deducted this
   amount  from the  $425,000 cost  of  the reprocurement  contract.
   Respondent's Exhibit 2.
 
   Liquidated Damages
 
 
        The Government is seeking liquidated damages against ASMC in
   the amount  of $28,362 for  the delay in project  completion from
   October 19, 1996, the day after termination, to January 14, 1997,
   the date NRC substantially  completed its reprocurement contract.
   Transcript at  352. The  contracting officer  testified that  the
   daily rate of $326 represented the standard costs for each of the
   disciplines  involved in  keeping  the  project  going  past  its
   completion date.  Id. at 75.
 
   Facts Pertinent  to the  Qualification of  GSA's Inspector as  an
   Expert
 
        GSA hired HDH for the purpose of monitoring the construction
   of the  roof on  the  Federal Building.   The  scope of  services
   provided  by HDH  is set  forth in GSA's  contract with  HDH, and
   Mr. Greer  was  the field  inspector  under this  contract.   The
   duties of the field inspector included the following:
 
        The  Field Inspector's work  shall include, but  is not
        limited  to the  following work:  . .  . Field  inspect
        construction for  conformance with  contract RVA-43602,
        and He or  She will promptly  report any deviations  to
        the COR  and document  the deviations  with photos  and
        reports  .  .  . [a]dvise  and  assist  the Contracting
        Officer's  Representative  (COR)   in  determining  the
        recommendation of acceptability or non-acceptability of
        marginal work,  workmanship, installation,  products or
        equipment  performance.  He or  She shall assist COR in
        certifying completed construction work items.
 
   Appellant's Exhibit 21.
 
        As of the  time of the hearing, Mr. Greer  had been employed
   by HDH as  a roof inspector for  four years.  Transcript  at 500.
   Prior to that he worked  as a construction superintendent and had
   been in the construction field for fifteen years.  Id. at 500-01.
   Mr. Greer  possesses  a   certification  from  Roof   Consultants
   Institute (RCI), a  national organization with over  1300 members
   formed  to  raise   the  level  of  professionalism   among  roof
   consultants.  Id.  at 563.   All certified  members must pass  an
   examination covering all  facets of roofing.  Id.  at 501-02. RCI
   also has a program for  certifying registered roof observers, and
   Mr. Greer  possesses   this  certification.     He   is  one   of
   approximately ninety  registered roof  observers in  the country.
   Id. at 564.  Mr. Greer had inspected over fifteen roofs  from the
   beginning to the end of projects.  Id. at 502.  
 
 
        Mr. Greer  was  neither retained  nor specially  employed to
   provide  expert testimony  in this case.   Transcript  at 520-22.
   Nor was he compensated for his testimony.  Id. at 520.
 
                               Discussion
 
   May the Inspector Testify as an Expert Witness?
 
        During  the hearing,  appellant  sought  to  have  Mr. Greer
   qualified  as  an  expert in  roof  construction  and inspection.
   Transcript at 519.   Respondent objected on the  grounds that the
   appellant did  not disclose  Mr. Greer's expertise  or provide  a
   Rule 26   Statement  as  described  in  Federal  Rules  of  Civil
   Procedure  so as  to put  respondent  on notice  that his  expert
   opinions  could be  the  subject of  discovery.   Respondent also
   maintained  the witness' expertise had not been established.  Id.
   Appellant contended that  it was not required to further identify
   the witness  or file  a Rule 26  Statement because  Mr. Greer was
   both a fact witness and an expert much like a treating physician,
   and appellant had  neither retained or employed him  as an expert
   nor requested him to prepare a report.  Id. at 520-22.
 
        The  Board deferred ruling  on the objection  to Mr. Greer's
   admission as an expert, but to expedite the proceedings permitted
   Mr. Greer to testify as though  he had been admitted.  Transcript
   at 426-27.
 
        Procedural Background
 
        On November 13, 1997, ASMC  filed with the Board a  document
   entitled  "Appellant's Identification of  Expert Witnesses."   In
   that document,  appellant listed  its retained  expert Deborah A.
   Evans, P.E., as well as the Government's inspector,  Wiley Greer,
   and five other expert witnesses.   Appellant did not disclose the
   area  of  any of  these  witnesses'  expertise,  except  for  its
   retained expert, Ms. Evans.   Appellant filed a  Rule 26(a)(2)(B)
   Disclosure  Statement for Ms. Evans  as well.   Shortly after the
   filing of this  document, counsel for  GSA contacted counsel  for
   ASMC   to  schedule  a  deposition  of  Mr. Greer.    Mr. Greer's
   deposition was subsequently canceled by respondent's counsel.
 
        Rule 26
 
        Rule 26(a)(2)(A)  of the  Federal Rules  of  Civil Procedure
   requires that a party disclose the identity of any person who may
   be used at trial to present  expert testimony.  The rule requires
   identification of the  expert, but does  not expressly require  a
   description of the  subject matter of his testimony  or his areas
   of expertise.   Fed. R. Civ. P. 26(a)(2)(A).  However, additional
   disclosure   is  required  for   retained  experts   pursuant  to
   Rule 26(a)(2)(B):
 
 
        Except  as  otherwise  stipulated or  directed  by  the
        court, this  disclosure [under  Rule 26(a)(2)(A)] shall
        with respect to a witness who is  retained or specially
        employed to provide expert testimony  in the case . . .
        be  accompanied by a written report prepared and signed
        by the witness.
 
   Fed. R. Civ. P. 26(a)(2)(B).   The  Advisory  Committee Notes  to
   this rule  make clear that  the requirement for a  report applies
   only to experts who are retained or specially employed to provide
   expert testimony:
 
        The requirement of a written report in paragraph (2)(B)
        however  applies only to those experts who are retained
        or  specially employed to provide such testimony in the
        case  or  whose  duties  as  an  employee  of  a  party
        regularly involve the giving of such testimony.
 
   Id., Advisory Committee's Notes.
 
        As   the  district   courts   have  recognized,   the   rule
   contemplates  two categories of experts, experts retained for the
   purpose  of providing  expert testimony  and  experts who  derive
   their  knowledge of  the  facts  of the  case  firsthand.   E.g.,
   Shapardon v. West  Beach Estates,  172 F.R.D. 415,  416 (D.  Haw.
   1997)  (report not required  from plaintiff's treating physicians
   as their opinions are derived from firsthand treatment); see also
   Wreath  v. United States,  161 F.R.D. 448  (D.  Kan. 1995)  (only
   witnesses  who  are  retained or  specially  employed  to provide
   expert testimony are  required to provide a written  report).  In
   the instant case,  appellant did not  retain or specially  employ
   Wiley Greer  for the purpose  of providing expert testimony.   On
   the contrary, most of Mr. Greer's testimony was factual in nature
   and his opinions  were solely derived from his  employment by HDH
   as GSA's inspector on the job being performed by ASMC.  Mr. Greer
   obtained his knowledge  of ASMC's work firsthand in  his capacity
   as the inspector,  and was responsible for evaluating the quality
   of ASMC's work and reporting his findings to GSA.
 
        Ruling
 
        Given  that the  identity of  this  witness and  appellant's
   intention  to call  him  as  an expert  was  timely disclosed  to
   respondent and indeed a deposition had even been scheduled, there
   is no  prejudice to respondent  by virtue of the  Board accepting
   this witness  as an expert  at trial.   Further, under the  clear
   terms of Rule 26  no report was required since Mr. Greer is not a
   retained or  specially  employed expert,  and  the scope  of  his
   testimony  did not extend  beyond his firsthand  observations and
   evaluations  as  the   inspector.    Finally,  the   Board's  own
   prehearing order did  not impose any requirements  over and above
   those  of  Fed. R. Civ. P. 26,   but  simply  provided:   "Expert
   witnesses shall be  designated by November 14, 1997,  and Rule 26
   Statements  shall  be  filed  on  November 14,  1997."    Amended
   Prehearing Order at  2 (Oct. 3, 1997).   Appellant complied  with
   the rule and the Board's order.
 
 
        Based upon Mr. Greer's significant experience in the roofing
   industry, the Board accepts him as an expert in roof construction
   and inspection.   Fed. R. Evid. 702.   Thus,  he is  qualified to
   render an  expert opinion  on the quality  of workmanship  of the
   roof  constructed by  ASMC.   The  Board, therefore,  accepts the
   following testimony from Mr. Greer as an expert opinion:
 
             Q    Now,  Mr. Greer, do you have an opinion based
        upon  your observation of  the methods  of construction
        and the  corrective solution  that was  applied to  the
        eighth floor roof, north end, do you have an opinion as
        to whether or not that roof was a sound roof?
 
             A    Yes, I do.
 
             Q    And what is that opinion?
 
             A.   The roof was sound.
 
   Transcript  at 540.   Further,  the Board  accords weight  to the
   overall testimony of Mr. Greer based on his firsthand observation
   of the job progress, his position as the field inspector, and the
   Board's assessment of his credibility.
 
   The Default Termination
 
        It is  well  established that  a  default termination  is  a
   drastic sanction which  should be imposed  only for good  grounds
   and on  solid evidence.   E.g., J.  D. Hedin Construction  Co. v.
   United States,  187 Ct. Cl.  45, 57, 408  F.2d 424,  431 (Ct. Cl.
   1969).  A termination for default is a Government claim,  and the
   Government has  the  burden  of  proving the  propriety  of  such
   termination  by  a   preponderance  of  the  evidence.     Libson
   Contractors, Inc. v.  United States, 828 F.2d 759, 765 (Fed. Cir.
   1987).    In this  case, the  Government has  failed to  meet its
   burden of proof.
 
        The Government  terminated ASMC's  contract for  default for
   failure to  make progress  or prosecute  the work  with diligence
   that would ensure  completion within  the time  specified in  the
   contract extension.   As the  United States Court of  Appeals for
   the  Federal  Circuit has  articulated,  in  order  to sustain  a
   default  termination  on  these   grounds  the  Government   must
   establish that the contracting officer reasonably determined that
   there was  "no reasonable  likelihood that  the contractor  could
   perform the entire contract effort within the time remaining  for
   contract  performance."    Lisbon Contractors,  828  F.2d  at 765
   (quoting  RFI  Shield-Rooms,  ASBCA 17374,  et al.,  77-2  BCA   
   12,714); SAE/Americon, Inc.  v. General Services  Administration,
   GSBCA 12294, et al.,  98-2 BCA   30,084, at  148,906 ("To sustain
   the  default  termination  there must  be  convincing  proof that
   timely  performance   was  beyond   the  contractor's   reach.");
   California  Dredging Co.,  ENGBCA  5533, 92-1  BCA    24,475,  at
   105,865 ("having terminated CDC prior to the completion date, the
   Government has the burden of proving . . . that the  contractor's
   performance was  so lacking as  to establish either  an intention
   not to  complete the work  or lack of ability  timely to complete
   the work  . . .  .  In cases  where a termination  for failure to
   make progress has  been upheld, something more than  a showing of
   the  percentage of work  completed versus the  time remaining was
   offered in  support of  the Contracting  Officer's decision.  see
   also, Olympic Painting Contractors, ASBCA  15773, 72-2 BCA   9549
   (contractor  terminated for default  halfway through the contract
   because only 7%  of the work had  been completed and none  of the
   work   was   completed   in   accordance   with   the    contract
   specifications); W.B. [Branin] Construction  Co., AGBCA 313, 73-1
   BCA   9887  (contractor had completed 15%  of the work with  only
   40% of the  time remaining and there was  legitimate concern over
   whether  the contractor  had adequate  finances  to complete  the
   project.)."
 
 
        Where  the determination of  the extent of  the contractor's
   diligence  in  performing  turns,  at  least  in  part,  upon the
   percentage of  progress achieved,  the method  of calculation  of
   that  percentage  takes on  obvious  importance.   Cox  &  Palmer
   Construction  Corp., ASBCA 38746, et al.,  92-1 BCA    24,756, at
   19,622,  aff'd on reconsideration, 93-1 BCA    25,219.  Here, the
   Government's methodology for calculating appellant's progress was
   incomplete and inadequate.  The contracting officer's calculation
   that  ASMC  had only  completed  61%  of  the entire  job  as  of
   October 18 was based solely upon  counting the number of  squares
   of  roofing  membrane  installed.     The  contracting  officer's
   derivation of a  "production rate" of five squares  per day based
   upon the same superficial methodology applied over a single four-
   day period was similarly flawed.
 
        Respondent bases its conclusion that there was no reasonable
   likelihood  that  ASMC   could  complete  the  eighth   floor  by
   October 21 or  the entire  job by  October 31 on  the contracting
   officer's  "analysis"   that  during  the  four-day  period  from
   October 11  through  October 14,  1996,   ASMC  installed  twenty
   squares  of roofing,  a production  rate of  five squares  a day.
   Respondent's  Posthearing  Brief  at  16.    Respondent's general
   methodology, as applied to this case,  is unsound and unsupported
   by  the evidence.  The Government's  estimate of completion based
   solely upon counting  completed squares of roof does  not include
   labor-intensive  flashing  work,   asbestos  abatement,  or   the
   recognition that  not all areas  were equally difficult  or time-
   consuming to reroof.  Moreover, the record here reflects that the
   majority  of work  performed during this  period did  not involve
   installing squares  of membrane.   Rather, ASMC removed  the east
   corridor roof on  the eighth floor, installed  insulation and cap
   sheets  on that floor, installed the sixty-four square corrective
   solution,  installed Veral flashings  on both the  penthouse roof
   and  the  half  moon  roof,  removed  and  made  water-tight  the
   perimeter of the south end, and was in the process  of installing
   the flashings at the cooling  tower and moving the equipment from
   the south end.
 
 
        In contrast  to  respondent's incomplete  assessment of  the
   percentage of  completion, the  weight of  the evidence  suggests
   that there was a reasonable likelihood  that appellant could have
   completed the eighth floor roof  by October 21.  The testimony of
   appellant's  project manager,  based upon his  site observations,
   that the  eighth floor roof was  90% complete was not  refuted by
   anyone    who    actually     observed    the    roof.[foot #] 19
   Further, other evidence  supports the conclusion that  ASMC could
   have  completed the  eighth  floor  roof by  October 21.   As  of
   October 18,  ASMC  advised  GSA that  it  could  still  remain on
   schedule  if Friday,  Saturday, and  Sunday were  marked by  good
   weather and  detailed the additional  progress it had made.   The
   testimony of GSA's inspector, while not addressing the percentage
   of completion, indicates  that the installed roof was  sound, and
   counterflashings were sufficient  to seal the north  eighth floor
   roof  as  of October 18.   According  to  a rough  estimate  by a
   Siplast representative based upon a two-hour inspection conducted
   two  days  prior  to  termination,  the  application  of  Siplast
   materials on the  eighth floor roof  was 70% complete as  of that
   date  and that roof qualified for a Siplast warranty.  Because on
   October 17 and  18 ASMC  worked a total  of 270 manhours  and was
   able  to add  even more  manpower  as of  October 18, this  rough
   estimate also supports a conclusion that ASMC could have achieved
   substantial  completion of the  eighth floor roof  by October 21.
   Similarly, ASMC's  certified application  for payment  indicating
   that 71% of the costs of the overall job had been expended as  of
   October 18 is consistent  with ASMC's project manager's  estimate
   that the eighth floor roof was 90% complete.
 
        In cases involving a Government claim that a termination for
   default is justified by a contractor's failure to make sufficient
   progress, the courts and the boards of contract appeals "will not
   uphold  a  default unless  the  CO  has  carefully  examined  the
   contractor's  ability to complete  the remaining work  before the
   contract completion date."  Hannon Electric Co. v. United States,
   31 Fed.  Cl. 135  (1994), aff'd, 52  F.3d 343  (Fed. Cir.  1995),
   citing  Lisbon, 828  F.2d at 765-66.     The record is  devoid of
   convincing  evidence  of   such  a  careful  examination.     The
   contracting  officer's decision to  terminate was based  upon the
   COTR's  opinion that  the  overall  job was  61%  complete as  of
   October 18 -- an  opinion formed without the benefit  of a visual
   inspection of the  roof by either the contracting  officer or the
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 19 Respondent's  expert  made  no  analysis of  the
   percentage of completion of the eighth floor roof.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   COTR and based  upon counting the number of  squares of installed
   roof,  without considering other work performed or the difficulty
   of completed work as compared to remaining work.  The contracting
   officer's  conclusion that ASMC had not supplied a realistic work
   schedule  is  not  supported  by  the record.    Further,  as  of
   October 10, by the Government's own  admission, 40% of the eighth
   floor  roof was complete.   Appeal File,  Exhibit 25; Appellant's
   Exhibit 63.     Given  that  between  October 11  and  October 18
   appellant  accelerated its  efforts and  expended a total  of 980
   manhours on  the job, and that ASMC was  prepared to add more men
   as of the  termination, the weight of the  evidence suggests that
   completion  of the  eighth  floor roof  by October 21  was within
   ASMC's reach.
 
 
        Further,  the  contracting  officer's  explanation  for  his
   conclusion that ASMC would not  complete either the eighth  floor
   roof  or  the  entire  project  on time  indicates  that  he  was
   considering  ASMC's progress  and production  rate  prior to  the
   extensions  and not  focusing on  ASMC's  accelerated efforts  to
   achieve  completion.  The contracting officer testified: "Because
   of  their progress up to that  time, even when they were working,
   their  production   rate  was  so   poor  that  if  you   did  an
   extrapolation of  what they  had accomplished  in their three  to
   four or five months that they  had the project, there was no  way
   that production  rate would lead  to a conclusion on  those other
   floors  by  the  October 31  date."   Transcript  at  58.    This
   rationale   did  not  take  into  consideration  the  accelerated
   production and  the work done  during the extension period  -- it
   improperly  harked back  to an  amorphous  unspecified production
   rate  prior to  the  extension which  became irrelevant  once the
   extension was granted and appellant accelerated its efforts.
 
        Nor  did the  contracting officer  "carefully consider"  the
   implications of bringing in a roofing contractor, certified as an
   installer of  a completely  different  roofing system  -- with  a
   different number of membranes and a different application process
   -- to complete a roof in process.  See Darwin Construction Co. v.
   United States,  811  F.2d 593  (Fed.  Cir. 1987).    Further, the
   Government's own inspector questioned the wisdom of bringing on a
   reprocurement  contractor  who  was not  a  Siplast  installer --
   necessitating  completing the  roof with different  materials and
   raising  a   warranty  issue.       Nor  did   the  reprocurement
   contractor's  original  estimate  of completion  --  twelve days,
   working  nights --  represent a significant  time savings  in the
   completion rate,  considering that  the reprocurement  contractor
   had  to move its workforce from Baltimore  to Norfolk, set up the
   job, obtain equipment and materials, and remobilize, such that it
   could  not have begun  work immediately; appellant  had estimated
   completing  the entire job by October 31, thirteen days after the
   termination.    Cf.,   Darwin  Construction,  811  F.2d   at  599
   (defaulted contractor  could have completed  work as soon  as and
   probably much sooner than successor contractor).
 
        The fact that the Government terminated this contract in the
   absence of  a clear overall  completion date before the  time had
   expired in the cure notice  of October 10 is another infirmity in
   the termination  decision.   Specifically, at the  time that  the
   Government terminated the contract on October 18, the cure period
   for  completing the eighth floor roof had not expired, and no new
   definitive   deadline  had  been   given  to  ASMC   for  overall
   completion.  The burden of proving a binding completion  schedule
   is  part of  GSA's  burden  of  sustaining  the  termination  for
   default.  See generally, Lisbon Contractors, 828 F.2d at 765; DBA
   Systems, Inc., ASBCA 34664, 89-3 BCA   22,202; Jack Spires & Sons
   Electrical Co., Inc., ENG BCA 5143, 87-3 BCA   20,069.
 
        While  it is true that  on October 3 appellant had indicated
   it  could complete the  job by October 31 (and  this was prior to
   the granting of the second extension due to five days  of adverse
   weather),  and had reiterated  the October 31 completion  date in
   its October 10  schedule, there is  no written evidence  or clear
   communication from  GSA to appellant  that October 31 was  a firm
   deadline  for   overall  completion.      Rather,  GSA's   formal
   modification set October 21  as the deadline for  completing "the
   eighth  floor  roof  only," leaving  the  overall  job completion
   deadline up  in the  air.   GSA's October 10 letter  specifically
   indicated  that the  overall completion  date was  a topic  to be
   revisited on October 21.
 
        In addition, because GSA nullified the prior completion date
   of October 15 and  failed to establish a new  completion date, we
   consider  this to  be tantamount  to a  waiver of GSA's  right to
   terminate  ASMC thereafter  for  failure to  make progress.   DBA
   Systems, Inc.,  ASBCA 34664,  89-3 BCA    22,202; Electronics  of
   Austin, ASBCA  24912, 86-3  BCA   19,307;  Humphrey Logging  Co.,
   ASBCA  84-359-3, et al.,  85-3  BCA    18,433.   October 21,  the
   deadline for  finishing work  on the eighth  floor roof,  was the
   only concrete  date given to  appellant by the Government  in the
   October 10 cure notice.  At  that juncture, the Government was to
   reassess performance on the remainder of the roof. 
 
        In  the  instant  case,  circumstances  warranted  at  least
   waiting  until  the  end  of  the cure  period,  given  that  the
   contractor had  significantly accelerated  its  efforts, and  the
   potential costs   and disruption  of bringing on  a reprocurement
   contractor to  complete  a roof  which was  almost finished  were
   substantial.   In Introl Corp.,  DOTCAB 1030, 80-1 BCA    14,380,
   the  Department  of  Transportation  Board  of  Contract  Appeals
   overturned a  termination for default  as procedurally  defective
   when the contracting officer terminated the contract prior to the
   expiration of the cure period.
 
        To the  extent that respondent  is now trying to  argue that
   deficient  performance  supports  the  termination  decision,  we
   disagree.   First, the reverse installation of sixty-four squares
   was remedied and approved by the Government subject to  provision
   of a  warranty.  All  indications were that  a warranty  would be
   forthcoming upon  completion of  the job.   The  Government's own
   inspector testified that the corrective solution  was sound.  Nor
   has   the   Government   demonstrated   that   the   contractor's
   installation   of   the   roof   was   noncompliant   with  GSA's
   requirements, because  ASMC failed  to install  the wood  nailer.
   Rather, the weight  of the evidence suggests  that the Government
   approved the submittal deleting the requirement for a wood nailer
   and that  the contractor reasonably believed that  the detail had
   been approved  with the concurrence  of the COTR,  the Government
   inspector, and the manufacturer.  
 
 
        Nor does  the evidence of  record support a  conclusion that
   ASMC's workmanship  on the  roof was faulty  due to  the moisture
   detected on the deck in November.   Indeed, the observed water on
   the  deck was minimal  and the testimony  of the  one witness who
   observed  it was  uncorroborated.   A  test cut  from the  Granby
   Street   side   of    the   roof   revealed   no    moisture   or
   water.[foot #] 20      Nor   was   there   any   other   evidence
   indicating that any additional water  was found once the roof was
   torn off.   Further, even a finding  that there was water  on the
   metal deck of  the roof on November 6,  1996, does not in  and of
   itself demonstrate that the installation done by ASMC was faulty.
   Rather,  it is uncontroverted that the Government terminated ASMC
   on October 18 without giving it  an opportunity to finish the job
   and  without giving  it an  opportunity  to ensure  the roof  was
   water-tight.   The reprocurement  contractor began work  ten days
   after termination  and there  was rain  on  the days  immediately
   following  the termination.   An  infrared  survey on  October 24
   detected no moisture  on the roof,  and neither respondent's  own
   expert  nor appellant's expert documented the type of workmanship
   problems  -- other  than ASMC's  not finishing  the job  -- which
   would have  accounted for moisture  on the deck.   Based upon the
   record  as a  whole,  respondent has  not  demonstrated that  any
   defects in workmanship  independently justified termination here,
   since appellant was not permitted to finish the job.
 
        Respondent also criticizes appellant for leaving the job for
   the month  of August.   But this  circumstance, like  the reverse
   installation which  was corrected, cannot  serve as  a basis  for
   default   since   respondent   extended  the   completion   date,
   encouraging  appellant to expend its resources and accelerate its
   performance.  Further,  appellant's  departure from the job for a
   two-week period  was approved both  at the outset of  the job and
   again just prior to ASMC's departure by  the COTR.  The fact that
   appellant  remained away  for  two  more  weeks  due  to  adverse
   weather,   while  unfortunate,   was  apparently   considered  in
   respondent's   decision   to  grant   appellant   two  subsequent
   extensions.
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 20 Curiously,  this is the  side of the  roof which
   respondent's  expert  claimed  had  a  gap  and did  not  contain
   temporary flashings.  The test cut where moisture was detected on
   the deck was taken from the Scope Arena side.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
   Liquidated Damages
 
 
        The  Government's claim for liquidated damages also fails in
   this  case.   The  Government  has  assessed  liquidated  damages
   against  ASMC  for   the  period  commencing  the  day  after  it
   prematurely  terminated  ASMC's contract  for  default until  NRC
   achieved  substantial  completion   almost  three  months  later.
   However, it is well established that liquidated damages are to be
   assessed to compensate  the Government for nonexcusable  delay in
   completion  of  the  job after  the  prescribed  completion date.
   E.g., Frontier Contracting Co.,  ASBCA 33658, 89-2 BCA    21,595,
   at 108,737 ("Liquidated  damages withheld . . .  must be returned
   to reflect the new completion date established herein."); Biehler
   Painting  Co., Inc.  ASBCA 18855,  76-1 BCA    11,729,  at 55,922
   ("Liquidated damages  are intended  to compensate the  Government
   for  delay  in  completion  of the  job  after  the contractually
   prescribed completion date.").  
 
        The Government granted appellant an extension of time to and
   until October 21  to complete the  eighth floor roof and  until a
   date uncertain  (at least October 31)  in which  to complete  the
   overall  project.   The  Government  prematurely  and  improperly
   prevented ASMC from  continuing work on  this job by  terminating
   ASMC prior  to both the  extended completion date for  the eighth
   floor  roof and the  undetermined completion date  for the entire
   project.    As   such,  respondent  has  not   demonstrated  that
   liquidated damages may be  assessed due to delay attributable  to
   appellant.   Respondent has not established the factual predicate
   or  the  legal  basis for  assessing  liquidated  damages against
   appellant here.
 
   Appellant's Claim for Monies Due Prior to Termination
 
        Because the contracting officer did not consider appellant's
   claim for monies due prior  to termination, and because the Board
   has converted  the termination for default into a termination for
   convenience, it is appropriate for this claim to be considered in
   the    context    of    the     termination    for    convenience
   settlement.[foot #] 21       Cf.    PBI    Electric   Corp.    v.
   United States, 17 Cl.  Ct. 128 (1989) ("[P]laintiff's  claims for
   cost adjustments  are mooted by  the default and subsumed  in the
   termination  for  convenience damage  claim.");  Ralcon,  Inc. v.
   United States, 13  Cl. Ct.  294, 296  (1987) (citation  omitted);
   accord SAE/Americon, 98-2 BCA at 148,920 n. 1 (since  termination
   for  default  was  improper,  quantum  issues  were  deferred  to
   termination  for  convenience  settlement);  Foremost  Mechanical
   Systems, Inc.  v. General  Services Administration,  GSBCA 12335,
   et al., 95-1 BCA   27,382 (1994).
 
                                                                    
                   ----------- FOOTNOTE BEGINS ---------
 
        [foot #] 21 While respondent has  asserted that appellant is
   not  entitled   to  any  monies  for  work   performed  prior  to
   termination, it has not addressed the particulars of this claim.
 
                   ----------- FOOTNOTE ENDS -----------
 
 
 
                                Decision
 
        The  appeals in  GSBCA 14066  and  14189 are  GRANTED.   The
   termination for  default is  converted to a  termination for  the
   convenience  of the  Government;  respondent's  claim for  excess
   reprocurement costs,  liquidated damages,  and  other damages  is
   denied.  Appellant's claim in GSBCA  14068 for monies due in  the
   amount of $198,011 for labor and materials furnished to GSA prior
   to termination is DISMISSED WITHOUT PREJUDICE to be considered by
   the Government in the context  of the termination for convenience
   settlement.
   ________________________________
 
                                      MARY ELLEN COSTER WILLIAMS
                                      Board Judge
 
   We concur:
 
 
 
   ______________________________
   _______________________________
   EDWIN B. NEILL                     ALLAN H. GOODMAN
   Board Judge                              Board Judge