Industrial Consultants, Inc. DBA W. Fortune & Company
Docket: ASBCA 59622, ASBCA 60491
Decision date: 2017-03-10

ARMED SERVICES BOARD OF CONTRACT APPEALS 
Appeals of -- ) 
) 
Industrial Consultants, Inc. ) 
DBA W. Fortune & Company ) 
) 
Under Contract No. W912WJ-13-M-0223 ) 
APPEARANCE FOR THE APPELLANT: 
APPEARANCES FOR THE GOVERNMENT: 
ASBCA Nos. 59622, 60491 
Mr. William Fortune 
Owner 
Thomas H. Gourlay, Jr., Esq. 
Engineer Chief Trial Attorney 
Theresa A. Negron, Esq. 
Engineer Trial Attorney 
U.S. Army Engineer District, 
New England 
OPINION BY ADMINISTRATIVE JUDGE O'CONNELL 
These appeals arise from a contract to upgrade heating, ventilation and air 
conditioning equipment at a facility in New Hampshire. The government's termination of 
the contract for default is at issue in ASBCA No. 59622, and appellant's money claim in 
ASBCA No. 60491. The Board conducted a hearing in 
Boston, Massachusetts, on 
16 November 2016, at which both parties were allowed to present witnesses and evidence. 
The Board admitted into evidence the government Rule 4, tabs 1-67, supplemental R4, 
tabs 68-91; and appellant supplemental Rule 4, tabs 1-22, as well as two additional 
exhibits from appellant. As set forth in this opinion, we deny the appeals. 
FINDINGS OF FACT 
Contract Formation 
1. This project was intended to upgrade the heating, ventilation and air 
conditioning (HV AC) equipment at the Child Development Center at the Cold Regions 
Research and Engineering Laboratory (CRREL) in Hanover, New Hampshire, whose 
occupants were experiencing "thermal comfort" issues due to an undersized system. The 
scope of work was limited by budget constraints but was to include replacement of the air 
handling and condensing units, the variable air volume terminal units, and the existing 
louvers, as well as ductwork modifications. (R4, tab 4 at 6, 18, tab 25 at 3; tr. 82) 

2. The solicitation informed prospective bidders that the U.S. Army Corps of 
Engineers (Corps) would conduct a pre bid site visit which it "urged and expected" 
prospective bidders to attend and that the contract would include FAR 52.236-2, 
DIFFERING SITE CONDITIONS; and 52.236-3, SITE INVESTIGATION AND CONDITIONS 
AFFECTING THE WORK (R4, tab 6 at 52, see tab 4 at 29). Despite this, appellant, 
Industrial Consultants, Inc. (ICI), did not attend the site visit (R4, tab 8 at 3). 
3. I Cl's bid price of $175,020 (including three optional items) was low by a 
considerable margin. The next low price of $237,402 was more than 35 percent 
higher. (R4, tab 10) 
4. Due to the budget constraints, the awarded contract did not include the 
options (tr. 17). The parties entered into the contract effective 12 September 2013 at a 
price of $144,680 (R4, tab 4 at 4 ). 
5. The contract provided more than a year (to 15 September 2014) to complete 
the work. This was due to work on the electrical system by another contractor that 
would not be completed until 15 July 2014. Work on site could only be performed on 
no more than four consecutive weekends after the 15 July 2014 completion of the 
electrical work. (R4, tab 4 at 9-10) 
6. One of the contract requirements that is of interest to this dispute is a 
standard requirement that the contractor provide submittals to the contracting officer, 
who had to approve them before work could start on site. These submittals included 
an accident prevention plan and product data for the air handling unit and other 
equipment. (R4, tab 4 at 14-17) 
Contract Performance 
7. ICI visited the site for the first time on 8 October 2013 (tr. 190-91; R4, 
tab 17 at 2-4). ICI's president and owner, William Fortune, concluded after this visit 
that the design provided by the government had significant problems (R4, tab 17 at 
2-4). Mr. Fortune then began a campaign to redesign the work, which he refused to 
drop no matter how many times the Corps told him to build as designed. 
8. The contract required ICI to bring all submittals to the preconstruction 
conference, which was held on 29 January 2014 (R4, tabs 22, 24 ), so that they could 
be distributed to the participating reviewers (R4, tab 4 at 12), but it failed to bring 
them to the conference (see R4, tab 26 at 2-3). (ICI had made a "preliminary" 
submittal for the air handling unit on 27 January 2014 (R4, tab 21), but the contract 
had no provision for submission or review of preliminary submittals.) 
2 

9. I Cl's concerns about the design ripened into the submission of a request for 
information (RFl-1) on 11February2014 (supp. R4, tab 76). The Corps provided an 
initial response on 28 February (R4, tab 25), and an amended response on 4 March 2014 
(R4, tab 77). Selected comments from RFI-1 and the Corps response are as follows: 
ICI - The kitchen exhaust hood duct is grossly 
undersized .... 
Corps - The kitchen exhaust system is not part of this 
project. 
ICI - There should be no air returns into the conditioned air 
system in the kitchen to prevent odors and smoke from 
entering other parts of the building. 
Corps - The contractor shall follow the contract 
documents.... [T]he existing kitchen hood manufacturer 
has stated that the existing system is acceptable for the 
amount of cooking performed in this kitchen. 
ICI - There is no technical reason to replace these louvers. 
Corps - The louvers [are to be] replaced because intake and 
exhaust flows have increased and the existing louvers are 
not designed to handle the increased flows. Louvers shall 
be installed as designed. 
10. The Corps project engineer, Patricia Devine, summarized the Corps' 
response in an email transmitting the amended RFI response by stating that the 
"long-and-short of it is to install the system as designed. Please send in your 
submittals so we can begin our review and get this contract moving." (R4, tab 77 at 2) 
11. The Corps still had not received the submittals on 10 March 2014, leading 
the contracting officer to send ICI a 
cure letter listing all of the outstanding submittals. 
The contracting officer stated that ICI's failure to provide the submittals was 
endangering contract performance and that failure to cure the deficiencies within 
10 days might result in termination of the contract for default. (R4, tab 26 at 2-3) 
12. Mr. Fortune replied to the Corps' RFI-1 response with an email on 
27 March 2014, in which he made a "Demand for higher authority and competent 
engineering review." Among other things, Mr. Fortune accused the Corps of having 
"copied the design of the failed HVAC system" and stated that ICI could not "be held 
responsible for a failed design." (R4, tab 29 at 2-3) 
3 

13. The contracting officer responded by letter dated 7 April 2014. In it she 
informed Mr. Fortune that the work was "part of a minor rehabilitation of the existing 
HVAC system." She stated that the design addressed the needs identified by the client 
but the scope of work did not provide for a major redesign of the system. She stated 
that the original cure notice was still in effect but extended the response date to 10 
days from receipt of the 7 April letter. (R4, tab 30) 
14. Thereafter, the Corps requested ICI participate in a conference call "to go 
over options and try to determine how we can best proceed for everyone involved" 
(R4, tab 31 ). As a result, the parties had two telephone conversations on 14 April 
2014. After the first, Mr. Fortune sent an email in which he contended that 
"satisfactory construction cannot be completed because the engineering department of 
the Army Corps of Engineers has failed to design a system that will function 
properly." (R4, tab 32 at 3) This appears to be based on his contention that the design 
of the current system was faulty and that the Corps should have redesigned it because 
"making it larger fails to correct the deficiencies and apparent design errors" (id.). 
However, after a second conversation, the Corps documented Mr. Fortune's agreement 
to proceed with the contract "per the scope of work" and to provide the submittals (R4, 
tab 33). On 25 April 2014 the Corps requested ICI confirm it would perform the 
contract as written, to which Mr. Fortune responded "You have bullied us into 
compliance; we intend to complete the contract" (R4, tab 38). 
15. I CI provided some of the submittals in April 2014. The precise date is not 
clear and they may have been submitted on several different dates (see R4, tabs 34-37, 
39-40). In a memorandum dated 27 May 2014, the Corps mechanical designer rejected 
the submittals for the air handler, the variable air volume boxes, the diffusers, the duct 
and insulation, and what the parties labeled "Trane: Using VAV Boxes" (R4, tab 42 at 
2; tr. 82). The most controversial of these appears to be the air handler. In explaining 
the air handler rejection, the engineer listed a combination of questions (for example, 
"Does fan have Variable frequency drive?") and comments (observing that the contract 
drawings require sensible 
cooling of259.5 MBH while the submittal showed only 190 
MBH and concluding that "[t]his unit is undersized.") (R4, tab 42 at 2). 
16. On 28 May 2014, the administrative contracting officer (ACO) rejected 
ICI's accident prevention plan, stating that the plan did not follow the format required 
by the 
contract, namely the Corps Safety Manual, EM 385-1-1, Appendix A, (R4, 
tab 4 at 14-15), which the Corps had previously provided ICI (see R4, tab 23 at 4, 
tab 39). Among other things, the ACO stated that "[m]any items have been omitted to 
include the identification and documentation of qualifications of the Site Safety and 
Health Officer; Safety Training; Safety Inspections; Accident Reporting 
Requirements; and Emergency Response Plan." (R4, tab 44 at 2) ICI resubmitted the 
4 

accident prevention plan on 16 June 2014 but the ACO rejected it again on 23 June 
2014 for similar reasons (R4, tab 51 at 2). 
17. With respect to the other submittals, ICI submitted a five-page document 
that addressed some of the concerns listed by the Corps engineer on 27 May, which led 
the Corps to approve the diffusers on 11 July 2014, but the engineer again rejected the 
air handler, asking once more if the fan had a variable frequency drive, among other 
things (R4, tab 53 at 4 ). 
18. In an email to the Corps project engineer on 22 July 2014, Mr. Fortune asked 
for permission to "allow us to make whatever changes that are necessary to the existing 
system that will meet the tenants['] requirements" (R4, tab 57 at 3). Reacting to this in an 
internal email, one Corps employee observed "He cannot seem to get over the idea that he 
cannot propose a system rather than simply execute the contract as agreed" (id. at 2). 
19. The Corps met with Mr. Fortune on 1 August 2014 in a last attempt to work 
things out. The contracting officer sent a letter on 12 August 2014 that documented the 
discussions at that meeting (R4, tab 62). With respect to the air handler and the variable 
frequency drive (VFD), the Corps expressed concern that 
ICI had not submitted the VFD 
and it, therefore, could not determine if they were compatible. (Mr. Fortune had informed 
the Corps by email on 18 July 2014 that there would be a VFD (R4, tab 55 at 3).) The 
Corps informed Mr. Fortune that this portion of the air handler would be approved once 
ICI submitted the VFD and the Corps found it to be acceptable. 
20. Based on Mr. Fortune's testimony at the hearing, it appears he did not want 
to submit the VFD to the Corps until after it approved the air handler. He testified that 
it "didn't register" with him until the 1 August meeting that the Corps was holding up 
the air handler submittal because of the VFD. (Tr. 145-47) There is no provision in 
the contract that allowed ICI to withhold the VFD submission until the Corps 
approved the air handler unit (AHU). 
21. In the 12 August letter, the contracting officer stated that the hot water coil 
had been rejected by the Corps because it had to be compatible with the existing boiler 
and that the coil was too large (R4, tab 62 at 4 ). The contracting officer stated that the 
variable air volume boxes ICI had submitted could not meet the pressure drop 
requirements and that ICI would have to submit a different product (id.). 
22. The contracting officer also stated that there had been a lengthy discussion 
about the return fan at the meeting. Mr. Fortune had suggested a value engineering 
change that would use a smaller fan than shown in the contract and that he had not 
included the larger fan in his bid. The Corps declined the proposed change and 
instructed ICI to submit the return fan and install as required by the contract. (R4, 
tab 62 at 4, tab 61 at 2) 
5 

23. Five days after the meeting, Mr. Fortune sent the project engineer an email 
in which he again challenged the design and effectively announced ICI's intent not to 
perform the contract. He stated that due to the issues he had uncovered from the site 
visit and review of the plans "we have spent any money that was in the contract for 
overhead and some onsite labor." He further stated that "We contend that there is too 
many ambiguities and your refusal to work together to resolve several design issues, 
for the benefit of the customer and society in general, have made the execution of this 
contract impossible." (R4, tab 61) 
24. The contracting officer sent what she labeled a 
third cure notice on 
26 August 2014 (the record does not contain a second cure notice). Among other 
things, the contracting officer stated that if ICI did not provide the required submittals 
within 10 days, this may result in termination of the contract for default. She stated that 
the work must be "completed and installed as designed, per the contract requirements." 
(R4, tab 64 at 2-3) Mr. Fortune responded with an email on 7 September 2014 in which 
he requested that the Corps "turn this contract into a design build and allow us to make 
the necessary changes 
to the system" (R4, tab 65 at 2). 
25. As far as we can determine from the record and the testimony at the 
hearing, ICI never performed any work on site (other than site review) and never 
ordered the equipment (R4, tab 63 at 3; tr. 177-78). As for the required submittals, ICI 
never submitted the VFD 1 (tr. 46, 48) or the return fan (tr. 47). The Corps rejected the 
accident prevention plan (tr. 43), and the variable air volume units (tr. 43-47; R4, 
tab 62 at 4 ). The Corps conditionally accepted part of the air handler pending 
submission of the VFD, but, as we observed, ICI never submitted the VFD, and the 
Corps rejected the hot water coil (tr. 46; R4, tab 62 at 3-4). 
Termination 
26. The contract included FAR 52.249-10, DEFAULT (FIXED-PRICE 
CONSTRUCTION) (APR 1984) (R4, tab 4 at 29). On 17 September 2014 (two days after 
the contract completion date), the contracting officer terminated the contract 
for 
default. As reasons for the termination, the contracting officer cited: "your firm's lack 
of response regarding USACE's request for required submittals, and to complete the 
contract as written." (R4, tab 2 at 2) ICI appealed that decision on 11 October 2014, 
which we docketed as ASBCA No. 59622. 
1 The list of product submittals in the contract does not include the VFD (R4, tab 4 at 17). 
However, the contract does list the "Variable Air Volume Units" as a required 
submittal and drawing M-703 speaks of the VFD under the heading "VARIABLE 
AIR VOLUME SYSTEM WITH RETURN FAN" (R4, tab 5 at 265). 
6 

ICI's Money Claim 
27. On 1December2015, ICI submitted a request for a contracting officer's 
final decision in which it sought to have the termination converted to one for the 
convenience of the government and for the government to pay ICI for costs incurred. 
ICI contended that the government provided defective specifications, failed to 
cooperate in approving submittals in a timely manner, breached the government's 
implied warranty of design and violated international building codes. ICI stated that 
"[t]his conduct caused inordinate delays and made it impossible for ICI to perform." 
(Supp. R4, tab 71 at 2) ICI raised 11 delays or purported grounds for relief in this 
claim. ICI addressed them to varying degrees during its presentation at the hearing. 
We will address them in order of the depth of presentation, starting with the subject 
receiving the most testimony, the feasibility of the design. (See tr. 158-69, 202-05) 
Design Issues: Louvers/Return Fan/Kitchen Design 
28. ICI presented the louvers, return fan, and kitchen design as three separate 
issues in its claim (supp. R4, tab 71 at 25-27, 30-32). But during the hearing 
Mr. Fortune's testimony suggested a linkage between the issues and as they all arise 
from an allegedly defective design, we will discuss them together. 
29. According to I Cl's claim, the contract called for "increasing" the size of the 
existing intake and exhaust louvers but when Mr. Fortune went to the site he found 
that the dimensions of the existing louvers were the same size as the louvers to be 
furnished under the contract. Mr. Fortune brought this to the attention of the Corps 
and offered a credit, but it refused to change the contract. (Supp. R4, tab 71 at 25) 
30. Even if I Cl's description of the contract's louver requirements were 
accurate, it is not clear how an insistence on following the contract in and of itself 
would cause a delay. But it is not accurate; the contract indicated that the louver size 
would not change: 
The intake and exhaust louvers are to be replaced due to 
increased airflows. The contractor shall provide louvers in 
accordance with section 23 00 00 in Appendix A. The 
louvers shall fit into the current wall openings in the 
basement mechanical room. 
(R4, tab 4 at 18) (Emphasis added) 
31. The specification provided various requirements for the new louvers 
including that they should be six-inches deep, made of an extruded aluminum alloy 
and factory coated with a clear anodized finish (R4, tab 5 at 17). Thus, the contract 
7 

clearly indicates that the new louvers were to be of the same size as the existing 
louvers (as Mr. Fortune found when he measured them) but that they were intended to 
be an upgrade. The Corps explained to ICI in its response to RFI- I that the louvers 
were to be replaced due to increased air flow (supp. R4, tab 77 at 5). 
32. In the claim, ICI also contended that the IO-foot distance between the 
louvers violated "international building codes" (supp. R4, tab 71 at 30). Although not 
entirely clear, the spacing between the louvers ties into I Cl's goal of eliminating the 
return fan because it wanted to redesign the system to relieve the exhaust air in a 
different part of the building, rather than through the exhaust louver, which would 
allow the return fan to be eliminated (tr. 166; R4, tab 17 at 3; supp. R4, tab 7I at 30). 
However, any credence we might give Mr. Fortune's opinion that the existing louver 
spacing violated a building code was negated by ICI's own expert who testified that 
they did not violate code (tr. 202-05). 
33. ICI contends that the return fan was unnecessary and was not shown in the 
basis for design (supp. R4, tab 7 I at 30). However, this fan is listed in numerous 
places in the contract, including: as a product that required a submittal (R4, tab 4 at 
17); in the statement of work under technical requirements (id. at I 8); and on drawings 
M-102 (the basement floor plan where it is referred to as "RF-I") (R4, tab 5); and 
M-60 I, which is the equipment schedule and details (id.). 
34. Thus, ICI signed a contract that clearly required a return fan. The record 
indicates that either it did not notice the return fan requirement or it gambled that the 
Corps would agree to delete it (compare R4, tab 6I at 2 with tab 62 at 4-5). In support 
of its contention that the return fan was unnecessary, ICI offers five pages of 
handwritten calculations (app. supp. R4, tab I3 at 84-88). However, neither Mr. Fortune 
nor any other witness explained these calculations and, we do not know what 
conclusions we are supposed to draw from them. Further, ICI's expert did not opine that 
the return fan was unnecessary. 
35. In sum, we find that ICI has not proven that the Corps provided a defective 
louver design due either to the size of the louvers or the distance between them. We 
find that the contract required a return fan and that ICI failed to demonstrate that the 
fan was unnecessary. We find that there is no evidence that the contracting officer 
acted unreasonably in enforcing the contract as written. Accordingly, we find that ICI 
has not proved that the Corps caused any delay related to the louvers or the return fan. 
36. Finally, we observe that in testimony we found difficult to follow, 
Mr. Fortune linked the louver issue to another separate ground for relief in the claim, 
namely a contention that the Corps also delayed the project because the design "would 
continue an existing defect that the kitchen was very hot and not being cooled," 
and 
that this violated the international mechanical code (supp. R4, tab 7I at 26). However, 
8 

Mr. Fortune undermined this contention at the hearing by stating "according to this 
guy [ICI's expert] who just reviewed the plans somehow we got all mixed up here and 
there were, there was more air in the kitchen than I originally thought" (tr. 162). 
Mr. Fortune then appeared to abandon this ground for relief stating "the kitchen 
problem was not that big ofa, may not have been a big of a problem" [sic] (id.). ICI's 
expert later testified that the method of cooling the kitchen was not a code violation 
(tr. 205). To the extent not abandoned, we find that ICI has not proven any design 
defects related to the kitchen. 
AHU Submittal 
3 7. One of the central goals of the project was to replace the existing AHU 
with a 21.6 ton unit2 (R4, tab 4 at 18). ("Ton" in this sense refers to the number of 
tons of 33-degree water that the unit can freeze in 24 hours (tr. 215-16).) 
38. At the hearing, ICI offered testimony from Mr. Fortune and ICI's expert, 
John Cass, concerning the Corps' rejection of the submitted AHU (tr. 130-41, 210-13). 
The Board found some of this testimony to be unhelpful because it did not address 
issues that are actually in dispute. Although not easy to follow, the crux of this 
testimony seemed to be that ICI had submitted a 20.5 ton AHU, which was somewhat 
larger than the 20-ton unit required by the contract (according to the testimony); this 
difference was insignificant and should not have been a basis for rejection (tr. 130, 
210). Unfortunately, this testimony is unmoored from the facts ofthe case. First, the 
contract required a 21.6 ton AHU, not 20 tons as the testimony indicated. Second, and 
more importantly, the Corps never rejected the AHU because it was the wrong number 
of tons. (R4, tab 42 at 2, tab 53 at 4) Thus, the Board did not understand the purpose 
of this testimony. 
39. From a thorough review of the record, the Board has identified three issues 
surrounding the submittals that delayed or prevented approval. First, as already stated, 
ICI waited more than seven months into the contract term to submit the various 
products (that is, those that it actually submitted). Second, with respect to the AHU, 
ICI submitted information on a series of air handlers that came in various sizes. The 
Corps found that the information submitted did not address the specifics of the project. 
(Tr. 84-85, 101-03) ICI's expert acknowledged that the AHU submittal "confused" 
the Corps engineer (tr. 212). 
40. The questions/comments raised by the Corps engineer with respect to the 
AHU do not appear to have been insurmountable (for example, "a. Does fan have 
Variable frequency drive? b. The drive package selection was not designated therefore 
could not verify characteristics associated with it."). (R4, tab 42 at 2) Generally, the 
2 The record indicates that the existing unit may have been a 12-ton unit (R4, tab 63 at 3). 
9 

parties to a government contract are expected to proceed in good faith and in a 
cooperative manner. Metcalf Constr. Co. v. United States, 742 F.3d 984, 991 (Fed. 
Cir. 2014). The record indicates, however, that Mr. Fortune could not or would not 
work through the submittal issues. Rather, when questioned, his modus operandi was 
to become aggressive, often lashing out at Corps personnel rather than addressing the 
issues (see R4, tab 29 (demanding "competent engineering review"), tab 32 at 3 
(calling the contracting officer "unqualified" to state that the design met the needs of 
CRREL ), id. at 4 (stating that the Corps engineering department "needs to be 
investigated for fraud for paying people to do engineering work that they are not 
doing. Their actions are giving the engineering profession a very bad reputation."), 
tab 38 ("You have bullied us into compliance"), tab 55 at 2 ("At this point I see no 
sense to meet with people who apparently are incapable of reading, comprehending or 
understanding the issues that we have submitted thus far .... We are not in the business 
of training or schooling entry-level technicians or less qualified people in the design 
and construction of HVAC systems."); supp. R4, tab 68 at 25 ("Did you ever hear of 
water freezing?"), tab 71at22 ("If the 'engineer' can't understand [that the submitted 
heating coil meets contract requirements] there is no explanation that I can give that 
will enable them to understand; they will have to go back to High School.")). 
41. This is unfortunate because it is possible that the submitted AHU would 
have worked. For example, the Corps questioned the submitted hot 
water coil because 
it was much bigger than necessary (R4, tab 53 at 4, tab 62 at 4 ). The Corps was 
concerned that the proposed coil would not be compatible with the existing boiler, 
which was not being replaced (R4, tab 62 at 4; tr. 115). According to ICI's expert, 
however, the larger coil would not have been a problem and might have benefited the 
government in the future if it had replaced the boiler (tr. 206-09). We cannot locate 
any place in the record, however, where ICI explained this to the contracting officer. 
42. The contract incorporated FAR 52.233-1, DISPUTES (JUN 2008)3 (R4, tab 4 
at 30). This clause provides 
in relevant part that "[t]he Contractor shall proceed 
diligently with 
performance of this contract, pending final resolution of any request for 
relief, claim, appeal, or action arising under the contract, and comply with any 
decision of the Contracting Officer." ICI did not submit any evidence that it could not 
find a smaller coil that complied with the contract. And, as we have already found, 
ICI failed to proceed with the work. 
43. We find that ICI has not demonstrated that the Corps acted unreasonably in 
rejecting the AHU and heating coil. The record indicates that the problems ICI 
experienced were largely of its own making. ICI has not shown that equipment 
3 The contract identified the clause as the June 2008 version of the clause, but most 
likely meant the July 2002 clause, which was in effect at the time of award. 
Regardless, the relevant language has not changed. 
10 

complying with the specification was not available or even that it would have cost 
more money than the proposed equipment. 
Accident Prevention Plan 
44. The contract barred ICI from performing work until it had submitted an 
accident prevention plan and the Corps had approved it (R4, tab 4 at 15). At the 
hearing, ICI did not address most of the ACO's grounds for rejecting the accident 
prevention plan but made three contentions. First, it contended that the ACO erred by 
stating that the plan failed to identify and document the qualifications of the site safety 
and health officer, when, in ICI's view, the plan clearly conveyed that Mr. Fortune was 
the person responsible. However, it would seem that ICI could have cleared up this 
issue with a brief clarification if it had been of the mind to work with the Corps. 
45. The second issue that ICI brought up at the hearing was that the Corps 
required it to submit a safety plan for a crane, which, in Mr. Fortune's view must have 
been because the Corps engineer did not know that a 20-ton air handler weighs far less 
than 20 tons (tr. 173). However, we have reviewed the Corps' rejections oflCI's 
accident prevention plan (R4, tabs 44, 51) and we do not see any evidence that the 
Corps rejected the plan for this reason. We have examined the rest of the record and 
do not see any evidence that supports ICI's contention. 
46. Third, ICI contended that the ACO wrongly rejected the accident 
prevention plan for failing to obtain a permit for working on live electrical panels 
when ICI had no intention of working on live electrical panels (tr. 173). However, the 
ACO's second rejection of the plan (the rejection in which this issue came up) does 
not mention live electrical panels, rather it states: "The Activity Hazard Analysis 
provided indicates that hot work will be performed but there is no mention of the 
requirement for a Hot Work Permit and fire watch" 
(R4, tab 51at2). The activity 
hazard analysis submitted by ICI listed work on refrigerant piping that would involve 
the following "HAZARDS": "Knocking over acetylene tank. Leaky torch handle. 
Burning fingers and hands. Charing [sic] painted surfaces." (R4, tab 47 at 3) ICI's 
accident prevention plan similarly stated that a brazing torch would be used (R4, 
tab 51 at 9). The Corps safety manual requires hot work permits when performing 
work such as that proposed by ICI that has a tendency to generate heat, sparks or open 
flames (supp. R4, tab 68 at 37-38). 
47. During the hearing, ICI submitted an email dated 30 April 2014 marked as 
appellant exhibit 2 in which the project engineer provided Mr. Fortune a blank copy of 
an energized electrical work permit, which, she stated, "is required for hot electrical 
work." Whatever confusion this may have caused, no contracting officer ever required 
ICI to obtain a hot work permit for electrical work it was not actually performing. The 
11 

ACO raised a hot work permit because ICI indicated that it was going to perform hot 
work. ICI did not submit any evidence challenging this basis for a hot work permit. 
48. ICI did not submit any evidence at the hearing concerning the ACO's other 
reasons for rejecting I Cl's accident prevention plan, including the lack of provisions 
for safety training, safety inspections, accident reporting requirements, safety 
meetings, and safety inspections (R4, tab 44 at 2). We consider them to be abandoned. 
Bond Premium 
49. ICI complains that the Corps unreasonably delayed in paying its bond 
premium of about $5,800 (supp. R4, tab 71 at 32). ICI requested payment for the 
premium sometime in the January-March 2014 time period- its invoice is unsigned 
and undated (R4, tab 27). The Corps rejected the invoice (id.). 
50. The contract incorporated FAR 52.232-5, PAYMENTS UNDER FIXED-PRICE 
CONSTRUCTION CONTRACTS (SEP 2002). This clause requires an agency to reimburse 
contractors for bond premiums "after the Contractor has furnished evidence of full 
payment to the surety." FAR 52.232-5(g). ICI never submitted any evidence that it 
paid the surety for the bond. Apparently, the contracting officer agreed 
to pay ICI for 
the premium in June 2014, not because she concluded that it was entitled to payment 
but because she was concerned that it was experiencing financial problems (tr. 22-23; 
R4, tab 45). 
51. We find that there is no evidence of government-caused delay due to 
payment of a bond premium simply because there is no evidence that ICI ever met the 
conditions for payment specified in the FAR. 
Schedule Rejection/Schedule of Values 
52. Mr. Fortune testified briefly on both of these issues at the hearing. Based 
on the claim (albeit not the testimony at the hearing,) the basis for ICI's schedule 
rejection claim is that the Corps refused to allow ICI to perform work in the fall of 
20134 (see R4, tab 15, tab 71at23-25). However, as we have already found, the 
contract barred ICI from performing work until the Corps approved the accident 
prevention plan, which ICI did not submit until April 2014 (R4, tab 44) and the Corps 
never approved. Thus, we conclude that the Corps did not delay the project by 
rejecting the request to perform work in the fall of 2013. 
4 Mr. Fortune mentioned the schedule rejection issue almost in passing at the hearing 
(tr. 155) but failed to explain why this delayed the project or entitled ICI to money. 
12 

53. The Corps rejected the schedule of values when ICI first submitted it but 
contends that subsequently it approved it when ICI removed a provision providing for 
payment for mobilization (supp. R4, tab 68 at 35, tabs 84, 87). However, it is not clear 
from these documents whether the Corps actually approved the schedule. But we see 
no evidence that this delayed the project because ICI did not submit this schedule until 
20 May 2014 (supp. R4, tab 84). By that point all of the issues concerning the late and 
non-conforming submittals were in full bloom, and Mr. Fortune had been fighting with 
the Corps over the design for seven months. These issues (and the failure to order the 
equipment) caused the delays to the project, not this minor spat about the schedule of 
values. 
Duct Insulation/Duct Submittal 
54. ICI contended in the claim that the Corps unreasonably delayed approval of 
duct insulation and unreasonably denied the ductwork submittal (supp. R4, tab 71 at 
32-33). At the hearing, ICI seemed to abandon these contentions (tr. 177). To the 
extent not abandoned, we find there is a complete failure of proof. 
55. The contracting officer denied the delay claim on 22 February 2016. ICI 
filed ASBCA No. 60491on4 March 2016. 
DECISION 
FAR 52.249-IO(a) provides: 
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 .... 
The government bears the burden of demonstrating that ICI did not perform in 
a timely manner and that it failed to gain approval of its submittals. DCX, Inc. v. 
Perry, 79 F.3d 132, 134 (Fed. Cir. 1996). Failure to proceed with the work during a 
dispute is a ground for termination for default. Preuss v. United States, 412 F.2d 
1293, 1301-02 (Ct. Cl. 1969). In this appeal, it is undisputed that ICI failed to 
complete the work on time, failed to proceed with the work after the Corps rejected its 
proposed changes to the project, and failed to furnish some submittals and failed to 
gain approval of other submittals. The government has made a prima facie case for 
default termination; ICI must, therefore, prove that its nonperformance was excusable. 
DCX, 79 F.3d at 134. 
13 

We have already rejected !Cl's contentions that the government delayed the 
project. Rather, the record makes it clear that ICI delayed the project because it 
disagreed with the government's design choices (see findings 7, 9-10, 12-14, 18, 
22-23) and failed to provide timely or complete submittals (findings 8, 10-11, 15-17, 
19-22, 25). The record strongly suggests that ICI has a basic misunderstanding as to 
its role as a contractor on a government project. Despite !Cl's views to the contrary, 
and as we now discuss, government contractors must perform the contracts they 
execute and cannot require the government to rewrite the contract so that they can 
build some other project they like better. 
It is well settled that the government is entitled to enforce its contracts so that it 
receives the work product provided for in the contract. JL. Malone & Assocs., Inc. v. 
United States, 879 F.2d 841, 845 (Fed. Cir. 1989). The government enjoys considerable 
leeway in determining what to specify. The Federal Circuit has held in the context of 
selecting the performance of air conditioning equipment that the "government may 
require performance 
both in excess of, or below, the standard normally accepted in a 
trade." Interwest Constr. v. Brown, 29 F.3d 611, 615 (Fed. Cir. 1994) (quoting Ralph 
Larsen & Son, Inc. v. United States, 17 Cl. Ct. 39, 46 (1989)). 
A number of cases from the Federal Circuit and the Court of Claims 
demonstrate that the contractor's role is to build the project for which it made a 
binding promise, not some contract that, in hindsight, it believes is more appropriate 
or makes more sense. For example, in JL. Malone & Assocs., 879 F.2d 841, an 
agency awarded a contract to replace an outdated fire alarm system and to upgrade an 
existing computer system. Instead, of upgrading the existing computer, the contractor 
offered to replace it with a new computer. When the contracting officer declined, the 
contractor proceeded with the work and submitted a claim. Id. at 844. 
The Federal Circuit affirmed a Veterans Administration Board of Contract 
Appeals decision denying the appeal. While the new computer would have been more 
advanced than the existing computer, the Federal Circuit held that the agency had no 
obligation to alter the basic design requirements. JL. Malone & Assocs., 879 F.2d. at 
846. The court of appeals agreed with the board that it would have been unfair to 
other bidders to approve such a major change to the contract after the fact because 
they would not have anticipated when they prepared their bids that the agency would 
approve such a major change. Id. at 845. 
Similarly, in Farwell Co. v. United States, 148 F. Supp. 947 (Ct. Cl. 1957), the 
contract required either copper or brass pipe be supplied, but the contractor attempted 
to use cheaper copper tubing, which it contended would give equally satisfactory 
results. As the Court of Claims explained: 
14 

It is of no concern to plaintiff why the Government 
specified brass or copper "pipe" instead of "tubing," and it 
was not within plaintiff's province to substitute its 
judgment for that of the Government by deciding that 
tubing was satisfactory when pipe was specified. The 
Government may have had many reasons for requiring 
pipe instead of tubing, but in any event the specifications 
called for pipe and the Government had a right to expect 
that pipe would be used. In other words, why have a 
contract if either party could change the terms thereof to 
suit his particular whim. 
Id. at 949. The Court of Claims also held that it would have been unfair to other 
bidders to allow the plaintiff to substitute the tubing. Id. at 950. If the other bidders 
had calculated their bids based on the use of pipe, the plaintiff would have had an 
advantage over them. The use of specifications insures uniformity of bidding. Id. 
During this project, ICI repeatedly informed the Corps of its opinion that the 
design of the existing system was defective and that it was a mistake to keep that 
design and add bigger equipment (findings 7, 9, 12, 14). The Corps considered ICI's 
point of view but elected to continue with its design (findings 9, 13, 19, 21-22, 24). 
At that point, ICI's only option was to build the project it had signed up to do. 
Instead, it kept dragging its feet and virtually forced the contracting officer to 
terminate the contract for default. 
While there is evidence in the record that ICI underbid the job and did not 
include all of the equipment in its bid (finding 34), during the hearing, ICI portrayed 
itself as animated by safety concerns. We need not address whether there is a safety 
exception to the rule that the contractor must build as designed. See Salisbury Special 
Tool Co., ASBCA No. 37530, 89-2 BCA i! 21,838 at 109,873. The undisputed 
evidence showed that the basic design had been in place for some time (findings 1, 
13 ), and there was no evidence that the design caused any ill effects to the building 
occupants. During the hearing, ICI's expert disagreed with its contention that the 
design violated the building code (findings 32, 36), and there is no evidence that 
increasing the size of the HVAC equipment would create safety problems. While ICI 
continues to contend in its post-hearing brief that the specifications were defective, 
there is an absence of supporting evidence. In sum, any safety concerns that ICI had 
are unproven. 
With respect to the submittals, there is no evidence that the contracting officer 
or other Corps personnel acted unreasonably. As we have found, ICI furnished the 
submittals months late, or not at all (findings 15, 25). Any such delays are entirely the 
fault of ICI. The Corps rejected several of the product submittals but showed a 
15 

willingness to work through the issues that came up (findings 13-14, 17, 19). In 
rejecting the submittals, the Corps made specific comments or asked specific questions 
that ICI should have been able to address (finding 15) ifthe equipment complied with 
the specifications. ICI failed to cooperate with the Corps and its attempts to work 
through the submittal process were half-hearted and sporadic. 
Finally, we also observe that IC I's failure to obtain approval of the accident 
prevention plan made it impossible to perform any work on the project (finding 16). 
The ACO provided a number of reasons for rejection of the plan, many of which ICI 
failed to challenge at the hearing and which we found had been abandoned 
(finding 48). We rejected ICI's other contentions concerning the accident prevention 
plan (findings 44-47). The failure to obtain approval of the accident prevention plan 
was a delay caused entirely by ICI that by itself prevented contract performance. 
We have examined I Cl's numerous contentions of government-caused delays 
and have found them to be lacking. ICI is not entitled to have the termination for 
default set aside, nor is it entitled to recover on its delay claim. 
These appeals are denied. 
Dated: 10 March 2017 
I concur 
CONCLUSION 
1ll~~c~~tt1-( 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
//'7~ 
//;/~~- ~-ff-------------- --t-i--~-
~ / &;////' / .· ---'--~~~~~~~~~~~~~~-
/ MARK N. STEMP ER 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
16 
RICHARD SHACKLEFORD 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 

I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA Nos. 59622, 60491, Appeals of 
Industrial Consultants, Inc. DBA W. Fortune & Company, rendered in conformance 
with the Board's Charter. 
Dated: 
17 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals