Harry Pepper and Associates, Inc.
Docket: ASBCA 62038, ASBCA 62039
Decision date: 2021-11-03

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE O’CONNELL 
 
 Harry Pepper and Associates, Inc. (HPA) appeals final decisions by a contracting 
officer from the National Aeronautics and Space Administration (NASA).  The Board 
conducted a hearing from March 1-12, 2021, at which we heard testimony from 
12 witnesses and received into evidence more than 600 exhibits or Rule 4 documents.  
Only entitlement is before us.  The Board sustains appeal No. 62038 in part, and denies 
Nos. 62039, 62040, and 62042. 
 
FINDINGS OF FACT 
 1.  NASA’s Stennis Space Center in Mississippi awarded HPA an indefinite 
delivery/indefinite quantity, multiple award construction contract on August 3, 2012 (R4, 
tab 1 at 3-41).  The contract contained various relevant clauses, including G.1, Contract 
Administration, and G.2, Technical Direction, which defined the authority of the 
contracting officer (CO) and the contracting officer’s representative (COR), respectively 
(id. at 11-12).  The contract also included Federal Acquisition Regulation (FAR) 
                                              
1 Rule 4 file cites are to the .pdf page number in the electronic file. 
Appeals of - )  
 )  
Harry Pepper and Associates, Inc. ) 
) 
ASBCA Nos. 62038, 62039 
                       62040, 62042 
 )  
Under Contract No. NNS14AA30T )  
   
APPEARANCES FOR THE APPELLANT: David W. Mockbee, Esq. 
D. Wesley Mockbee, Esq.  
Judson R. Jones, Esq. 
  Mockbee Hall & Drake, P.A. 
    Jackson, MS 
 
APPEARANCES FOR THE GOVERNMENT: Scott W. Barber, Esq. 
    NASA Chief Trial Attorney 
 Jeffrey A. Renshaw, Esq. 
Shannon A. Sharkey, Esq. 
Jennifer L. Rawls, Esq.  
    Trial Attorneys 
    Stennis Space Center, MS 

2 
 
52.236-2, DIFFERING SITE CONDITIONS (APR 1984) (the DSC clause), FAR 52.236-
3, SITE INVESTIGATION AND CONDITIONS AFFECTING THE WORK (APR 
1984), FAR 52.243-4, CHANGES (JUN 2007), and FAR 52.246-12, INSPECTION OF 
CONSTRUCTION (AUG 1996) (R4, tab 1 at 9, 26-27).  
 
 2.  On January 9, 2014, NASA awarded HPA the above-referenced task order in 
the amount of $36,577,459 for the B2 Test Stand Restoration, Work Package 3, which 
required HPA to complete the work within 400 days (R4, tab 2 at 2-4).     
 
 3.  NASA constructed the B2 test stand in the 1960s to test the Saturn V rockets 
that carried humans to the Moon during the Apollo program.  Work Package 3 is part of a 
program that restored and augmented the stand to test the core stage of NASA’s new 
Space Launch System (SLS), the cornerstone vehicle for NASA’s Artemis Program that 
(it is hoped) will return humans to the Moon in the 2020s.  (R4, tab 18 at 7; see 
https://www.nasa.gov/sites/default/files/atoms/files/b-2_test_stand_v1.pdf)    
 
 4.  HPA performed an earlier contract on the B2 test stand referred to as Work 
Package 1.  Through its work on that contract, HPA had access to the test stand for 
15 months prior to award of Work Package 3.  (Tr. 6/208-09)  In addition, prior to the 
submission of bids for the task order, NASA allowed bidders to attend a site visit on 
October 22, 2013 (tr. 6/205; ex. G-20). 
 
 5.  HPA has filed these appeals on behalf of its subcontractor, Quality Iron 
Fabricators, Inc. (Quality Iron) and Quality Iron’s sub-subcontractor, River City Erectors, 
LLC (River City) (app. supp. R4, tabs 7-8, 142).  Neither Quality Iron, nor River City, 
attended the pre-bid site visit (tr. 6/205; ex. G-20).   
 
 6.  The existing test stand structure included a booster support frame, which is 
referred to as the “battleship” and is made of heavy steel plates reminiscent of a naval 
vessel (tr. 1/48-51, 6/118; R4, tab 5 at 6, tab 18 at 8).  The Saturn V rocket was placed in 
the interior of the battleship during testing (tr. 6/118).  Above the battleship was the main 
propulsion test article (MPTA) structure, the top of which is the “corvette,” also in the 
naval sense, and made of steel plate like the battleship (tr. 1/46-47, 51, 6/118). 
 
 7.  The contract required placement of temporary steel track to relocate the MPTA 
structure by moving it 20-feet north (R4, tab 18 at 7).  HPA had to lift the structure, 
which weighed about 1.2 million pounds, place it on the track, carry out the move, and 
then remove the track (id. at 7-8; tr. 1/61; app. supp. R4, tab 26).  
 
 8.  Due to the loads applied during the move, and those to be applied in the future, 
the contract also provided for the battleship to be reinforced.  To accomplish this, HPA 

3 
 
had to weld 28 structural steel shapes to the existing steel plates.  These steel shapes are 
referred to as “WTs” or “split tees” because they are an I-beam that has been cut in half 
(forming a tee shape).  (R4, tab 18 at 8; tr. 1/85, 237-38, 4/94)  As detailed below, a 
variety of issues with the WTs form the basis of request for equitable adjustment (REA) 
nos. 1 and 4, which are at issue in ASBCA No. 62038. 
 
 9.  The contract called for the addition of plates (doubler plates) at the bottom of 
existing columns in the MPTA structure to carry the increased loads, as well as the thrust 
from the core stage engine tests (R4, tab 4 at 17 (S-505), tab 18 at 8; tr. 1/112-13, 4/94).  
HPA alleges in REA Nos. 9 and 10 that it performed additional work on these baseplates 
(ASBCA Nos. 62039 and 62040).    
 
 10.  The contract provided for construction of a new SLS Support Tower on top of 
the existing structure for testing larger and more powerful rocket engines, as well as an 
Access Tower directly on top of the SLS Support Tower.  This new structure (described 
in the specifications as a “space truss”) was 93-feet tall and more than 300-feet above 
grade.  (R4, tab 18 at 8; tr. 4/94-95)  In REA 12 (ASBCA No. 62042), HPA alleges that it 
encountered unexpected thermal movement of the structure above the top of the 
battleship during the construction of the SLS structure.     
  
 ASBCA No. 62038 (REAs 1 & 4) 
 
 11.  NASA issued a notice to proceed on February 7, 2014 (R4, tab 3 at 2). 
 
A. REA 4 
 
 12.  The WTs were 27-feet long, which was only a few inches shorter than the 
interior height of the battleship, and weighed 99 pounds per foot (tr. 1/62, 71).  To bring 
them inside, the contract drawings provided that HPA could cut a 36-inch diameter hole 
in the top or bottom plate of the battleship (although the specifications mentioned only 
the top plate) (R4, tab 6 at 7, tab 18 at 8).   
 
 13.  During the hearing, there was a sharp difference of opinion between HPA and 
NASA with respect to the feasibility of lowering the WTs by crane through holes cut in 
the top plate of the battleship.  The Quality Iron and River City witnesses testified that 
there were too many obstructions inside and above the battleship to do so.  (Tr. 1/69-71, 
93, 98-99, 225)  The HPA witnesses also testified that it was impossible to bring the WTs 
in through the bottom (e.g., tr. 1/89-91, 240).  NASA believed that both were possible 
(e.g., tr. 8/38, 107-08).  
 

4 
 
 14.  The witness whose testimony the Board found most credible on this issue was 
Charles Stewart, who was Head of Construction for NASA at Stennis Space Center from 
1986 to 2003 (tr. 6/157-58).  According to CO Jason Edge, Mr. Stewart knew the B2 test 
stand “like the back of his hand” (tr. 7/137).  More than a decade after he left NASA, 
Mr. Stewart became Head of Field Operations for HPA on this task order, supervising the 
field superintendents and subcontractors and coordinating with NASA (tr. 6/124-25). 
 
 15.  Mr. Stewart characterized lowering the WTs through the top plate by crane as 
“doable.”  He agreed that there were obstructions in a few places, but testified that HPA 
could have worked around them.  (Tr. 6/128-29)  Mr. Stewart was more concerned with 
cutting through the 2.25-inch thick steel plate, which he characterized as “doable ... but 
very complicated” because it required “heat stress and a tremendous amount of welding” 
(tr. 6/127; R4, tab 6 at 7 (“EXIST 2 1/4 TOP PL”)).  Mr. Stewart worked out an alternate 
approach that would avoid cutting the holes and which, in his view, saved “a lot of time” 
and was less expensive (tr. 6/127-28, 179).  River City’s project manager agreed that this 
procedure allowed them to work within and above the battleship simultaneously and that 
it saved time (tr. 1/105).     
 
 16.  Consistent with Mr. Stewart’s testimony, HPA submitted request for 
information
2 no. 62 (RFI 62) to NASA on April 29, 2014, seeking approval of an 
alternate method of bringing the WTs into the battleship due to the concern that heat 
generated by cutting an access hole could warp the top plate.  Specifically, it proposed to 
cut the WTs into three equal-sized pieces (of about 9 feet each) and transport them 
through a door on the north side of the test stand and weld them back together when they 
were installed.  HPA did not justify the procedure by citing obstructions inside or above 
the battleship.  Nor did it state that this procedure would cost more money or require 
additional time.  (R4, tab 53b at 3)  In fact, the previous day Quality Iron had informed 
HPA that there would be no time or cost impact of the change (ex. G-3).   
 
 17.  NASA’s COR, Brennan Sanders, approved HPA’s proposed method on 
May 1, 2014 (R4, tab 53b at 2).  NASA (like Mr. Stewart) expected the new procedure to 
save money because HPA would no longer have to cut through the top plate (tr. 6/218). 
 
 18.  One aspect of RFI 62 that would come to light involved the type of weld that 
would be used to put the WTs back together once they were inside.  The contract required 
                                              
2 The contract provided that an RFI was “an easy way to document questions and 
answers” (R4, tab 18 at 360).  But it also provided that an “RFI shall not result in a 
cost or schedule impact to the contract”, nor should it “result in a change to the 
contract cost, scope, or schedule” (id.). 
 

5 
 
HPA to use “complete joint penetration” (CJP) welds to attach the WTs to the battleship 
(R4, tab 6 at 7).  A CJP weld involves welding two metal pieces together so that they 
become one and the load is passed through the members.  By contrast, in a partial joint 
penetration (PJP) weld, the weld does not go all the way to the back of the material.  The 
witnesses at the hearing agreed that while a PJP weld is a “good” weld, a CJP weld is 
stronger.  (Tr. 1/57, 227, 8/33)  In RFI 62, HPA proposed to use a PJP welding procedure 
at the two seams to rejoin the three WT pieces.  (R4, tab 53b at 3)  The contract did not 
specify a type of weld for rejoining WTs if they had to be cut.  
 
 19.  COR Sanders did not understand that RFI 62 provided for PJP welds when he 
approved it, but, when he realized that it did, he became concerned that the WTs would 
not be strong enough (tr. 8/33-34).  On July 31, 2014, he issued a revised response to 
RFI 62 stating CJP welds were required (R4, tab 53c at 2).  By that point, River City had 
already performed most of the PJP welds (app. supp. R4, tab 157 at 2-3; tr. 1/88).  
Because of this and because NASA directed HPA in the revised RFI response to 
“upgrade” the welds, the Board finds that NASA knew that it would cost additional 
money to perform this work. 
 
 20.  After nearly another two months passed, on August 26, 2014, HPA submitted 
RFI 62A, proposing that in lieu of upgrading to CJP welds it weld 0.5-inch thick 
diamond-shaped plate onto the seams attached by the PJP welds (R4, tab 53e at 3).  The 
Board finds that RFI 62A was an effort to mitigate HPA’s costs that resulted from the 
revised response to RFI 62.  NASA approved the procedure with some technical 
adjustments on September 4, 2014 (id. at 2).  
 
 21.  On October 8, 2014, HPA advised NASA that HPA considered NASA’s 
revised response to RFI 62 to be a constructive change to the contract and that it had 
incurred additional costs and time.  HPA stated that at the time of NASA’s revised 
response on July 31, 2014, it had already performed 99% of the work.  HPA once again 
stated that its purpose in submitting RFI 62 had been to prevent warpage in the top plate 
of the battleship.  (App. supp. R4, tab 157 at 2-3)  
 
 22.  On October 27, 2014, HPA submitted Field Change Request
3 (FCR) 37 on 
behalf of Quality Iron and River City for the work they performed in response to RFI 62 
and 62A.  HPA requested a total of $118,439 and 17 days.  (App. supp. R4, tab 10 at 2)  
There does not appear to be a response to this FCR in the record, but on January 11, 
                                              
3 The contract provided that the purpose of FCRs was “to document, track, and 
implement changes” and that they could be initiated by anyone associated with the 
project (R4, tab 18 at 358). 

6 
 
2016, HPA submitted REA 4, which increased the amount sought to $148,140.31 (app. 
supp. R4, tab 20).   
 
 23.  In a July 5, 2017 supplement, HPA combined REA 4 with REA 1 (discussed 
below) and demanded $2,346,074.77 (app. supp. R4, tab 23(c) at 4).  In this supplement, 
HPA shifted away from contending that the top plate would warp if River City cut 
through it.  HPA now contended that NASA’s design was defective because the WTs 
could not be lowered through a hole cut in the battleship top plate (id. at 3-4, 8).  
Consistent with this, at the hearing the HPA witnesses focused on the alleged 
impossibility of lowering the WTs through the top of the battleship due to obstructions 
(tr. 1/98-99, 225, 230, 238, 241-46, 3/276-77; app. supp. R4, tabs 179-179c).  HPA did 
not present any testimony from an outside expert who contradicted Mr. Stewart’s 
assessment that the cutting through the top plate was “doable . . . but very complicated” 
(tr. 6/127).  
 
 24.  The parties entered into negotiations that were not successful (tr. 7/59-60).  On 
August 10, 2018, CO Edge issued unilateral Modification No. 44 (Mod. 44), which 
attempted to resolve a number of pending REAs, including REAs 1 and 4.  Mod. 44 
provided for a payment to HPA of $415,356, as discussed below, pursuant to the DSC 
clause.  (R4, tab 53m at 2-3) 
 
 25.  On December 19, 2018, HPA submitted a certified claim that increased the 
total amount sought for REA 1 and 4 to $3,103,204.40, which, after subtracting the 
amounts paid in Mod. 44, resulted in a net claim of $2,687,848.40, plus a 90-day time 
extension (R4, tab 48 at 13).  HPA contended that, due to obstructions, the specified 
procedure of lowering the WTs through a hole in the top was “unworkable and, as such, a 
material misrepresentation” (id. at 6).  It alleged that HPA, Quality Iron, and River City 
had no way of knowing about the obstructions that prevented lowering the WTs through 
the top plate because they had been barred from entering the battleship pre-bid (id. at 3, 
6).  HPA asserted a variety of theories, including defective specifications, the Changes 
clause, NASA’s breach of its duty not to hinder or interfere with HPA’s work, superior 
knowledge, differing site conditions, and cardinal change (id. at 8-12). 
 
 26.  The Board finds the allegation that NASA denied HPA and its subcontractors 
access to the interior of the battleship prior to bid to be inaccurate.  As we have already 
found, Quality Iron and River City did not even attend the pre-bid site visit; HPA, on the 
other hand, had been working on the test stand for 15 months (findings 4-5).  At the 
hearing, HPA did not present testimony from any HPA official who attended the site 
visit.  COR Sanders, who did attend (ex. 20 at 2), testified credibly that because this task 
order provided for work on all levels of the stand, they walked around the entire stand 
and the bidders were not prohibited from looking anywhere (tr. 8/24-25).  In addition, 

7 
 
even if River City and Quality Iron were not available on that date, HPA could have 
requested badges for them and brought them to the site (id. at 27-28).  The Board further 
finds that if River City and Quality Iron had inspected the site prior to bid they would 
have been aware of at least many of the challenges of bringing the WTs in by crane from 
overhead because, for example, two of their witnesses described the battleship as a 
“maze” (tr. 1/96, 246). 
  
 27.  CO Edge issued a final decision on March 27, 2019, denying the claim, that 
is, refusing to pay any amounts beyond those paid in Mod. 44 (R4, tab 53).  CO Edge 
stated in the final decision that NASA had calculated that River City had experienced a 
cost saving of $311,002 from not cutting access holes in the top plate (id. at 5). 
 
 28.  HPA filed a timely appeal on April 15, 2019. 
 
B. REA 1  
 
 29.  While REA 4 concerned problems that started with getting the WTs inside the 
battleship, REA 1 involves difficulties HPA experienced once it got the WTs inside.  
 
 30.  River City began installing the WTs on June 12, 2014 (R4, tab 53k at 2).  The 
condition of the interior walls to which the WTs would be welded – and the extent to 
which this could have been observed pre-bid – is a matter of dispute.  NASA’s main 
witness on this topic, COR Sanders, believed that the walls were straight (or plumb) 
(tr. 8/97-98).  While COR Sanders was generally a credible witness, the Board found the 
testimony of Mr. Stewart (HPA’s former head of field operations) to be more 
convincing.  Mr. Stewart testified that in the “upper reaches” of the battleship, which was 
about 28-feet high, “the walls . . . were no longer plumb . . . so you had gaps that [were] 
tremendously hard to fill with weld” (tr. 6/127).  This impacted the work because River 
City, among other things, had to perform additional weld passes to fill the gaps (id. 
at 164; app. supp. R4, tab 18 at 45-53 (describing particular welds required by the 
conditions)).  Mr. Stewart testified that this could not have been discovered on a site visit 
even if the contractors had spent more than a day inspecting the test stand.  HPA only 
discovered the problem when “we got into the battleship, cleaned up lead paint, built 
scaffolding, and got lights up there where we could see it” (tr. 6/183).  
 
 31.  On August 4, 2014, HPA submitted RFI 140, notifying NASA of the problem 
and requesting approval of a procedure that would involve cutting the WTs into three 
pieces (a confusing request because HPA was already cutting the WTs into three pieces 
under RFI 62).  COR Sanders approved the procedure two days later, once again adding a 
note in bold reminding HPA that it needed to inform the CO if “Any comment resulted in 

8 
 
a change in cost, scope or schedule. . .”  (App. supp. R4, tab 65 at 2-4)  HPA did not 
inform the CO at this time of any increase in cost, scope, or schedule.  
 
 32.  By the time that HPA submitted RFI 140, it had completed or was close to 
finishing installation of the WTs because the record reflects that it was able to move the 
MPTA structure on August 8, 2014, which could only take place after the WTs had been 
installed (ex. G-22; see finding 21).  
 
 33.  A second issue in REA 1 involves the relocation of five WTs after River City 
installed them.  On April 22, 2014, COR Sanders provided HPA with revised drawings 
that changed the location of the WTs (R4, tab 53h).  In June, River City nevertheless 
began installing the WTs in the original locations; when this was discovered they had to 
be moved to the updated locations.  Credible testimony established that HPA simply 
failed to inform the subcontractors of the location change.  (Tr. 5/183, 8/124-25)  
 
 34.  On June 29, 2015, HPA submitted REA 1 seeking $1,198,516.24 (app. supp. 
R4, tab 18).  This amount included $763,527 for the subcontractors due to the out-of-
plumb conditions and $142,571.45 for subcontractors for the WT relocation, with the 
remainder being overhead and profit for HPA (id. at 5, 7, 17). 
 
 35.  As stated above, on July 5, 2017, HPA combined REA 4 with REA 1 and 
requested $2,346,074.77 (app. supp. R4, tab 23(c) at 4).  With respect to RFI 140, the 
REA supplement clarified that the increased costs were necessary because “no welding of 
the split tees to the existing walls could be made without extensive repeated efforts of 
placing the WT against the wavy wall then profiling, trimming and grinding the WTs 
usually three (3) times before the WTs could be welded to the wavy wall” (id. at 8, see id. 
at 53).  With respect to relocation of the WTs, HPA admitted that it had received the 
changed locations before installing them in the original locations but it contended that it 
was bound to do so until it received a contract modification (id. at 58-59).     
 
 36.  As stated above, after unsuccessful negotiations, on August 10, 2018, 
CO Edge issued Mod. 44, which attempted to resolve a number of pending REAs, citing 
the DSC clause (R4, tab 53m at 2-3).  CO Edge calculated that HPA was entitled to 
$435,978, for additional welding and trimming costs due to the out-of-plumb walls 
described in REA 1 and $179,378, for REA 4, but that NASA was entitled to a credit of 
$200,000 because HPA did not have to cut 14 holes in the top plate, resulting in a net 
amount due HPA of $415,356 (id. at 3).  
 
 37.  The CO’s March 27, 2019, final decision did not award HPA any 
additional money for the REA 1 work beyond that granted in Mod. 44.  With respect to 
the out-of-plum walls, CO Edge admitted that it was possible that they were out-of-plum 

9 
 
beyond 5/16,” which he identified as the allowable tolerance under the contract.  
However, he stated that NASA could no longer determine the extent to which the walls 
were out of plumb, nor could it determine if the WTs had been within tolerances (or 
warped) because HPA had performed the work before it notified NASA of a differing site 
condition.  (R4, tab 53 at 5-6)    
 
DECISION – ASBCA No. 62038 
 
 The Board’s review of HPA’s claims is de novo and we are not bound by 
CO Edge’s determination in Mod. 44 that there was a DSC.  Wilner v. United States, 
24 F.3d 1397, 1401 (Fed. Cir. 1994) (en banc).  The Board will address each of the four 
discrete issues in this appeal. 
 
A.  Bringing the WTs into the Battleship 
 
 While HPA has raised numerous legal theories, HPA’s claim for bringing the WTs 
into the battleship fails on the facts.  HPA signed up to do a project that specified that the 
WTs could be brought into the battleship by cutting holes in the 2.25-inch steel plate.  
HPA (or River City) had second thoughts about this “very complicated” procedure and 
proposed an alternative that it believed would save time and money.  (Findings 15-16)  
Apparently, this did not work out as well as HPA/River City intended.  But NASA bears 
no responsibility for cooperating with the contractor and approving an alternative 
approach, particularly where the contractor failed to inform the CO up front that it would 
cost more time and money (finding 16). 
 
 The Board also finds that HPA’s contention that obstructions made it impossible 
to bring the WTs in through the top is not believable in light of the testimony of HPA’s 
director of field operations (Mr. Stewart) that it was “doable” (finding 15).  To be sure, 
other HPA witnesses strongly disagreed, describing the battleship as a “maze” due to the 
number of obstructions (finding 26).  But this simply left the Board wondering why, if 
there were so many obstructions, HPA had not noticed them prior to bid.   
 
 HPA attempted to illustrate the obstructions through contract drawings S-101, 
S-102, and S-105, and then creating an overlay of one drawing on top of the other 
(app. supp. R4, tab 179-179c; tr. 1/95-96).  But these drawings contain dates in 
September 2013, several months before contract award.  Reasonable diligence prior to 
bid would have made HPA and its subcontractors aware of any difficulties illustrated 
by these drawings. 
 
 The contract incorporated FAR 52.236-3, Site Investigation and Conditions 
Affecting the Work (finding 1), which provided in relevant part: 

10 
 
 
The Contractor also acknowledges that it has satisfied itself as 
to the character, quality, and quantity of surface and 
subsurface materials or obstacles to be encountered insofar as 
this information is reasonably ascertainable from an 
inspection of the site . . . as well as from the drawings and 
specifications made a part of this contract. Any failure of the 
Contractor to take the actions described and acknowledged in 
this paragraph will not relieve the Contractor from 
responsibility for estimating properly the difficulty and cost 
of successfully performing the work, or for proceeding to 
successfully perform the work without additional expense to 
the Government. 
 
(Emphasis added)  “It is well-settled that a contractor is charged with knowledge of the 
conditions that a pre-bid site visit would have revealed.”  H.B. Mac, Inc. v. United States, 
153 F.3d 1338, 1346 (Fed. Cir. 1998).  Thus, even if we believed HPA’s contention that 
it was impossible to bring the WTs in through the top plate, it would still not be entitled 
to recover because one could not miss a “maze” on a reasonably diligent site visit or 
review of the drawings. 
 
B.  Changing the Welds from PJP to CJP after HPA rejoined the WTs  
 
 A different problem is presented by NASA’s belated prohibition of PJP welds on 
the seams of the rejoined WTs in its revised response to RFI 62.  The contract does not 
specify the type of weld to be used if the WTs have to be cut and then rejoined, but the 
contract required NASA to respond to RFIs within five working days (finding 18; R4, 
tab 18 at 360).  While NASA’s original response was timely, its revised response nearly 
three months later was not (findings 16-19).  HPA relied on the original response and 
installed most of the WTs with PJP welds at the seams (finding 19).  It is clear that if 
NASA had reviewed RFI 62 carefully this would not have happened because the RFI 
clearly stated that HPA intended to use PJP welds.   
 
 NASA addresses ASBCA No. 62038 at pages 15 to 42 of its opening brief.  While 
it discusses at considerable length the reasonableness of HPA’s site investigation, the 
feasibility of bringing the WTs in through the top of the battleship, the condition of the 
interior battleship walls, and the reasons why HPA had to relocate WTs that had already 
been installed, it is relatively quiet on its revised response to RFI 62.  NASA does not 
contend that COR Sanders lacked authority to respond to RFI 62 or to revise its response.   
 

11 
 
 NASA’s sole contention seems to be that WTs rejoined with PJP welds are not as 
“solid” as those with CJP welds (gov’t br. at 29 (PFF 224)).  This would be more relevant 
if NASA had denied RFI 62 at the outset but it does not even begin to address the 
contractual requirement that it respond to RFIs within five days, and the effect of 
changing its response nearly three months later when HPA/River City had already 
performed most of the work.  The Board holds that it was unreasonable for NASA not to 
review RFI 62 carefully and that it was unreasonable for it to wait nearly three months to 
change its response.  The government is liable when it unreasonably fails to issue 
approvals or delays in taking actions required by the contract.  See, e.g., Law v. United 
States, 195 Ct. Cl. 370, 397-99 (1971) (government caused delay by failing to act on shop 
drawings and waiting too long to make permitted changes.); cf. Relyant LLC, ASBCA 
No. 59809, 18-1 BCA ¶ 37,085 at 180,539 (unreasonable delay in government response 
to request to modify contract constituted a breach of duty of good faith and fair dealing 
under the circumstances). 
 
 Finally, in the introduction to its brief, NASA references its motion for summary 
judgment in which it contended that HPA failed to provide NASA timely notice under the 
Changes or DSC clauses that the work would entail additional costs, but it does not 
develop this argument in its post-hearing brief.  In any event, the Board disagrees.  As we 
observed on the parties’ cross motions for summary judgment, while notice requirements 
are enforceable, there are a variety of exceptions, including actual or constructive notice 
of the conditions encountered.  Harry Pepper & Assocs., Inc., ASBCA No. 62038 et al., 
21-1 BCA ¶ 37,760 at 183,300.  In this appeal, it is inconceivable that NASA did not 
know, when it issued the revised response to RFI 62 nearly three months later, that HPA 
had installed most or all of the WTs.  Thus, it knew that changing the welds would 
require extra work (finding 19).    
 
 The Board holds that HPA is entitled to recover for the additional costs of 
installing the diamond-shaped pieces on the WT seams.  The Board remands to the 
parties for determination of quantum. 
 
 The Out-of-Plumb Battleship Walls  
 
 The DSC clause (finding 1) provided that: 
 
(a)  The Contractor shall promptly, and before the conditions 
are disturbed, give a written notice to the Contracting Officer 
of (1) subsurface or latent physical conditions at the site 
which differ materially from those indicated in this contract, 
                                              
4 “PFF” refers to a proposed finding of fact within the brief. 

12 
 
or (2) unknown physical conditions at the site, of an unusual 
nature, which differ materially from those ordinarily 
encountered and generally recognized as inhering in work of 
the character provided for in the contract. 
 
 . . . . 
 
(c)  No request by the Contractor for an equitable adjustment 
to the contract under this clause shall be allowed, unless the 
Contractor has given the written notice required . . . . 
 
FAR 52.236-2.       
 
 “A Type I [DSC claim] arises when the conditions encountered differ from what 
was indicated in the contract documents.
5”  Renda Marine, Inc. v. United States, 509 F.3d 
1372, 1376 (Fed. Cir. 2007).  To prevail on a Type I DSC claim, a contractor must prove 
that:  (1) “a reasonable contractor reading the contract documents as a whole would 
interpret them as making a representation as to the site conditions”; (2) “the actual site 
conditions were not reasonably foreseeable to the contractor, with the information 
available to the particular contractor outside the contract documents, i.e., that the 
contractor ‘reasonably relied’ on the representations” (3) the “contractor in fact relied on 
the contract representation”; and (4) “the conditions differed materially from 
those represented and . . . the contractor suffered damages as a result . . . .”  Int’l Tech. 
Corp. v. Winter, 523 F.3d 1341, 1348–49 (Fed. Cir. 2008) (citations omitted). 
 
 In its brief, NASA contends that it did not represent that the battleship walls would 
be straight because the drawings show the battleship walls with dashed lines (gov’t br. 
at 31).  While it is true that the drawings use dashed lines, NASA does not cite any 
witness testimony stating the conclusion we should draw from this.  In any event, the 
actions of the contracting officer during performance indicate that both parties 
understood that the walls would be generally straight, within a tolerance of 1/16” every 
4-feet based on a note on the drawings and the American Institute of Steel Construction 
and the American Society for Testing of Materials standards incorporated in the contract 
(finding 37; app. supp. R4, tab 143 at 6 (citing R4, tab 6 at 3, structural steel note 6); R4, 
tab 18 at 113; app. supp. R4, tab 3 at 76-77; app. reply at 5, ¶ 6).  This would be 
consistent with the norm for any structure, namely, that the walls will generally be 
straight up and down but that there may be small imperfections. 
                                              
5 A Type II differing site condition arises when the conditions encountered are of an 
unusual nature and differ materially from those normally encountered in the kind 
of work contemplated by the contract.  Renda Marine, 509 F.3d at 1376. 

13 
 
 The Board has found that the condition of the walls differed from those 
represented, that HPA could not have discovered this condition pre-bid, and that it relied 
on the straightness of the walls for the number of weld passes and other work it would 
have to do to install the WTs (finding 30).  
 
 NASA relies most heavily on its notice defense.  As stated above, the DSC clause 
required HPA to notify the CO “promptly, and before the conditions are disturbed . . . .” 
While such notice provisions are enforceable, precedent recognizes various 
exceptions, including lack of prejudice to the government.  Schnip Building Co. v. United 
States, 645 F.2d 950, 959-60 (Ct. Cl. 1981).  The government bears the burden of 
demonstrating prejudice.  A.R. Mack Construction Co., Inc., ASBCA No. 50035, 01-2 
BCA ¶ 31,593 at 156,139-40. 
 
 HPA clearly submitted RFI 140 too late because it had already installed almost all 
of the WTs (finding 32).  The Board would hold that HPA’s claim is barred due to lack 
of notice if NASA had examined the conditions when it received notice but found that 
the conditions could no longer be verified.  But the record indicates that because 
COR Sanders believed that the walls were not warped, he does not appear to have made 
any effort to verify HPA’s representations.  On cross-examination he was defensive 
when pressed by HPA’s attorney: 
 
Q Where are your measurements of the wall that show that 
it’s [not] warped? 
 
A I don’t have any measurements of the wall, sir. 
 
Q You’ve had years to do that, haven’t you? 
 
A Yes, if I was inclined to do that. I don’t see a need to do 
that and what that would do for me. 
 
Q Well, it might give you some evidence of what you say that 
is, frankly, contrary to what your contracting officer has 
decided?
6 
 
A Right, yes, sir. And you can go look at the wall and tell it’s 
straight, and you can walk outside and see the sky is blue, and 
you don’t have to measure it to know that it’s blue.    
                                              
6 This was an apparent reference to the CO stating in Mod. 44 that there was a DSC and 
paying HPA money for the issue (findings 24, 36). 

14 
 
 
(Tr. 9/148-49)  COR Sanders admitted that the walls between the WTs are still visible 
(id. at 152).  It seems unlikely that the only place that the walls were warped were also 
the exact spots where the WTs were installed.  Thus, if NASA had measured the walls or 
otherwise investigated and found that they were within tolerances, this likely would have 
been enough to defeat HPA’s claim.  But because NASA did not attempt to verify the 
conditions, it cannot demonstrate prejudice. 
 
 NASA also contends that it was “severely prejudiced” because HPA denied 
Quality Iron’s claim for the wall condition based on the notice requirements in the 
HPA-NASA contract, as well as the HPA - Quality Iron subcontract, which NASA 
presents as dispositive by itself (gov’t br. at 26 (PFF 18 (citing ex. 9))).  Despite this 
initial denial, HPA eventually agreed to present the claim to NASA.  The initial denial 
does not affect our analysis of the merits of the DSC or the lack of prejudice to NASA.  
Moreover, the government cannot rely on the terms of a subcontract.  Whether HPA is 
entitled to additional money is determined by the prime contract, not provisions in the 
subcontract concerning how the subcontractor must present its claim to HPA.  See 
Kellogg Brown & Root Servs., Inc. v. Sec’y of the Army, 973 F.3d 1366, 1370-71 (Fed. 
Cir. 2020). 
 
 HPA is entitled to recover for a DSC concerning the condition of the battleship 
walls.  The Board remands to the parties for determination of quantum. 
 
C. Relocating Five Installed WTs 
 
HPA does not dispute NASA’s contention that River City installed the WTs in the 
original location even though NASA had provided new locations about two months 
before installation began (finding 33).  Our finding that HPA simply failed to tell the 
subcontractors of the location change (id.) is dispositive of this issue. 
 
HPA contends, however, that until the CO issued a modification it was bound to 
install the WTs in the original location (HPA reply at 5, ¶ 5).  The Board disagrees.  
Under clause G.2, Technical Direction, the COR was authorized to provide directives to 
the contractor that approve “approaches, solutions, designs, or refinements” (finding 1; 
R4, tab 1 at 11).  The apparently minor changes in the final locations for the WTs would 
be a solution, design, or refinement that this clause contemplates.  If HPA had any 
doubts, it should have brought the issue to the attention of the CO, as also provided for in 
clause G.2, rather than installing the WTs in a location that it knew was wrong.  
 
 
 

15 
 
ADDITIONAL FINDINGS OF FACT ASBCA Nos. 62039 AND 62040 
 
38.  As stated on Drawing S-505, Note 2, the existing base plates at the bottom of 
the MPTA columns were “too thin” and needed to be thickened before the MPTA 
structure could be moved.  On top of the existing plates, HPA was to install 2.5” 
thick A36 steel plates (a 36,000 PSI grade of material (tr. 4/28)) “cut to fit the columns, 
with 1 1/2” diameter holes drilled in them and edge preparations for CJP and PJP welds 
as indicated . . . .” (R4, tab 4 at 17).   
 
39.  The existing plates are referred to as “gusset plates” (id. at 17, n.6; tr. 1/72).  
The columns and the plates were perpendicular and were joined at the 90-degree angle 
with welds referred to as fillet welds (tr. 2/132; app. supp. R4, tab 29(b) at 9). 
 
40.  Drawing S-505, Flag Note 3 (a note referring to a flagged area on the 
drawing), provided that the contractor was to “cope and bevel around existing column 
flanges and fillet welds as required for base [plate] installation.”  On this same drawing, 
Note 6 provided that “Parts of existing gusset plates and parts of some welds will need to 
be partially removed . . . to allow proper fit up and welding.”  (R4, tab 4 at 17)  As 
discussed below, HPA contends that these notes are contradictory, but it did not seek 
clarification from NASA prior to bid. 
 
41.  HPA retained Bell Steel Company (Bell Steel) to fabricate the steel plates.  
Bell Steel prepared shop drawings
7 that HPA submitted to NASA for approval, and 
which contained comments between Bell Steel and HPA.  There is nothing on the shop 
drawings that indicated any confusion about the requirements of Drawing S-505 and, in 
fact, one of the comments (apparently from HPA) specifically indicated awareness of 
Note 6.  (R4, tab 110 at 11-12; tr. 8/130-32) 
 
42.  Despite Note 6, HPA (or more specifically, River City) contends that NASA 
refused to allow HPA to remove the existing fillet welds.  At the hearing, River City 
project manager Brian Ditty testified that someone with NASA (whom he did not 
identify) told him at a meeting that River City could not remove the existing welds.  
Mr. Ditty testified that personnel from both HPA and Quality Iron were also at the 
meeting, but no other witness testified that he was present at such a meeting and heard 
                                              
7 The contract incorporated FAR 52.236-21, SPECIFICATIONS AND DRAWINGS 
FOR CONSTRUCTION (FEB 1997) (R4, tab 1 at 27).  FAR 52.236-21(d) defined 
shop drawings as: “drawings, submitted to the Government by the Contractor . . . 
showing in detail (1) the proposed fabrication and assembly of structural elements 
and (2) the installation (i.e., fit, and attachment details) of materials or 
equipment.” 

16 
 
this direction.  (Tr. 1/202-03)  Notably, HPA’s Certified Welding Inspector (CWI), 
Robert Mader, testified that he was not aware of any direction from NASA to leave the 
existing welds in place (tr. 7/265).  
 
43.  HPA does not allege that the CO gave this direction to River City.  There is 
nothing in writing that documents this alleged direction, and HPA did not inform the CO 
that a lower level person had barred HPA from performing work authorized by the 
contract, or that this instruction would cause an increase in costs that it would later allege 
exceeds $1 million.  The Board sees no benefit to NASA from leaving the welds in place 
in their entirety and thus no motivation to demand that they remain.  
 
44.  Based on the weight of the evidence, the Board finds that no one from NASA 
– and certainly not the CO – told HPA or River City that the existing welds could not be 
removed.  This leads to the question of why, if no such direction was given, would River 
City forgo removal of the welds.  The Board finds that, like the REA 4 decision not to 
bring the WTs in through a hole in the top, this likely was a gamble by River City that 
it could save money if it did not take the time to remove the existing welds (tr. 7/265, 
273-74).  Like REA 4, NASA cooperated with HPA’s attempt to avoid removing the 
welds, only to get blamed by HPA later on. 
 
45.  In support of its contentions, HPA draws our attention to RFIs 146 and 146A 
(one of which may be misdated but we find that HPA submitted both and received 
answers in August 2014).  In RFI 146, HPA stated, in part, “Existing conditions, in the 
form of welds on W14 columns for MPTA, prevent the 2 1/2” thick plates from achieving 
proper CJP weld . . . .” and requested that NASA advise how it should proceed (app. 
supp. R4, tab 34c(9) at 3).  The Board finds that HPA represented in this RFI that existing 
conditions prevented removal of the welds, but that is not the same thing as confirming a 
direction from NASA to retain the welds.  Moreover, as we will describe below, the 
existing conditions did not prevent removal of the welds and River City or Quality Iron 
would eventually remove the existing welds in 2015.  
 
46.  HPA also directs our attention to NASA’s response to RFI 146, which 
contains three sketches prepared by NASA’s structural steel designer to address leaving 
the welds in place.  The sketches refer to a weld identified as “Weld 3.”  The third sketch 
contains the following sentence relied upon by HPA:  “Placing Weld 3 along the inside of 
the flanges and along the web requires dealing with the existing column to base plate 
weld staying, a large chamfer
8 is needed on the edge of the new plate . . . .”  (App. supp. 
R4, tab 34c(9) at 6).  While this again references at least some welds staying, it does not 
document that this direction came from NASA and merely repeats the representation 
                                              
8 “Chamfer” is synonymous with bevel (tr.1/125).  

17 
 
made by HPA in the RFI.  Moreover, when these sketches define Weld 3, the designer 
also refers to areas where the existing fillet welds are to be removed, which contradicts 
the alleged proscription of weld removal (id. at 4).  The Board finds that, on the whole, 
this RFI does not support the finding of a NASA direction not to remove the existing 
welds and, at most, reflects NASA’s cooperation with leaving some of them in place. 
 
47.  Both parties pursue an in depth discussion of specific types of CJP welds, 
welding techniques, the meaning of welding symbols on construction drawings, and 
whether or not the sketches attached to NASA’s response to RFI 146 would have resulted 
in proper CJP welds if HPA had followed them precisely, but because we find that HPA 
has not proven that NASA ever directed HPA not to remove the existing welds, or that 
existing conditions prevented removal of the welds, the Board need not delve into this.
9 
 
48.  Drawing S-505, Note 5, provided that “CJP and PJP welds require 100% 
[ultrasonic testing] with a written report for the NASA COR” (R4, tab 4 at 17).  Because 
the existing welds would now remain in place, HPA took the position that it was no 
longer feasible to test the welds using ultrasonic testing (UT).  HPA submitted RFI 146A 
requesting that NASA waive the requirement and suggested “performing the welds under 
the supervision of NASA’s CWI or designated representative ...”  COR Sanders approved 
this, stating “[c]ontinuous visual inspection should be conclusive” but he did not state 
that NASA would be providing a CWI (App. supp. R4, tab 34c(9) at 7).  The parties 
executed bilateral Mod. 2 in October 2014, providing NASA a credit of $2,136.77 for 
omitting the UT test requirement (R4, tab 54h at 4). 
 
49.  A question that would later emerge from RFI 146A was the meaning of the 
phrase “NASA’s CWI or designated representative” (R4, tab 34c(9) at 7).  The contract, 
in a section entitled “Structural Steel Welding” barred HPA from welding until it had 
submitted, among other things, inspectors for approval by the COR (R4, tab 18 at 114).  
The necessary inspectors included one with a CWI certification (id. at 117).   
 
                                              
9 The Board finds, however, that River City did not follow the sketches even though it 
knew that the resulting welds would be inadequate.  While the parties dispute 
whether the sketch attached to NASA’s response to RFI 146 (app. supp. R4, 
tab 34c(9) at 6) contained two options or two steps to achieve a CJP weld, the 
Board reads the sketch as requiring two steps, primarily because it states at the top 
“STEPS IN EDGE PREP ON MPTA DOUBLER BASE PLATES FOR WELDS” 
(id.).  River City did only the work on the top half of the sketch even though 
Mr. Ditty knew it would not result in a CJP weld.  When asked why he did not 
alert NASA or the designer to this concern he testified that “it’s kind of like 
questioning your father when you question the engineer of record.”  (Tr. 1/125-26)  

18 
 
50.  During the project, HPA provided Robert Mader, who was employed by 
another subcontractor, Mandina’s Inspection, as its CWI (tr. 7/201).  This did not change 
when River City performed the baseplate work following RFI 146A, and no one from 
HPA appears to have questioned why NASA did not have its own CWI at the site.  In any 
event, under clause G.1 (finding 1), the CO is “the only person authorized to approve 
changes or modify any of the requirements under this contract . . . .”  Thus, when he 
issued the response to RFI 146A, COR Sanders did not have the authority to obligate 
NASA to hire its own CWI.10  
 
51.  This story might have ended here if not for an extraordinary event.  On 
Friday, March 6, 2015, months after the baseplate work had been completed, a former 
River City employee notified NASA that he had essentially sabotaged three welds by 
placing a filler material (in this case bolts) in the welds, which is known as “slugging” the 
welds.  The obvious result of this is that it weakens the weld and potentially threatens the 
integrity of the structure.  NASA met with HPA, Quality Iron, and River City the 
following Monday to discuss the allegation.  (Tr. 6/23, 7/240; R4, tab 55j)  After the 
meeting, HPA informed Quality Iron that it had agreed with NASA “that further testing, 
either by x-ray or some other method, needed to be performed . . . .” (R4, tab 55j).    
 
52.  On March 9, 2015, HPA also issued a stop work order (Non-Compliance 
Notice No. 11) to Quality Iron for “improper welds and failure to provide proper Quality 
Control of the welding . . . .”  The Non-Compliance Notice required Quality Iron to 
submit a written corrective action by close of business the following day.  (R4, tab 47r)  
On March 10, 2015, HPA notified Quality Iron that if the slugging allegation proved to 
be true HPA intended to hold Quality Iron responsible for all costs of investigating and 
correcting deficient work (R4, tab 55j). 
 
53.  On March 18, 2015, HPA wrote to Quality Iron stating: 
 
Based upon the performance of RCE to date and the recent 
discovery of MPTA base plate welds being intentionally 
improperly performed it is apparent that QIF’s subcontractor, 
RCE, does not have supervisory or quality control personnel 
on the project that can ensure that work is performed 
according to the requirements of the contract. If RCE's 
current on site management and quality control are allowed to 
                                              
10 S-505, Note 4 also provided that “[t]he base plate thickening process requires full time 
inspection by NASA” (R4, tab 4 at 17).  NASA performed this inspection by a 
combination of spot inspections by welding inspectors who worked for a separate 
contractor and construction managers who walked the site (tr. 9/169-70). 

19 
 
continue HPA has no reason to believe the situation will 
change. 
 
HPA concluded the letter by demanding the removal of Brian Ditty and another River 
City employee.  (R4, tab 54a) 
 
54.  On March 19, 2015, HPA notified NASA by email that it intended to submit a 
corrective action plan that would include the reinstatement of UT testing.  The plan 
would “include completely removing and replacing the reinforcing plates and welds on 
the columns which are considered to have major defects” and “removal and replacement 
of weld [sic] with minor defects as identified by UT inspection and recommended by 
CWI” (R4, tab 55o). 
 
55.  On March 24, 2015, Quality Iron submitted to HPA a corrective action plan.  
The plan included a provision for UT inspection to determine which welds needed to be 
repaired (R4, tab 47v at 14-15).  As a result of the inspections, the parties agree that HPA 
ultimately found two slugged welds and lesser defects at a number of baseplates (app. br. 
at 20) (PFF 64); app. reply at 8; gov’t br. at 49-50 (PFF 7)). 
 
56.  HPA now contends that NASA forced HPA to do the UT inspections and that 
“everyone knew” the welds would not pass UT inspections due to the fillet welds that had 
remained in place (app. reply at 2, 17).  But there is no contemporaneous documentation 
demonstrating that NASA forced this procedure on HPA or that HPA or its 
subcontractors contended that another procedure was more appropriate.   
 
57.  Also in March of 2015, John Phillips became Quality Iron’s senior project 
manager (tr. 2/125).  Mr. Phillips soon became aware of problems with the welds.  He 
could not understand why River City had left the fillet welds in place because they 
prevented successful completion of a CJP weld.  (Tr. 2/142-43)  He asked Mr. Ditty, 
River City’s project manager, about this.  Mr. Ditty stated that he had left the welds in 
place because NASA had instructed him to leave them in place.  (Id. at 145)  This seems 
to be the origin of the story that NASA barred removal of the existing welds.   
 
58.  Mr. Phillips agreed that the project had been designed correctly and that the 
problem was the alleged direction not to remove the existing welds (tr. 3/16-17).  HPA 
fixed plates that failed UT inspections (discovered while implementing the corrective 
action plan) by ripping out the work and performing it per the original design on Drawing 
S-505, including partial removal of the existing welds (id. at 29-31).   
 
59.  On December 19, 2018, HPA submitted a certified claim for $1,127,909.37 
and a 29-day time extension for what is referred to as the REA 9 work (the work 

20 
 
emanating from the alleged NASA direction to leave the existing fillet welds in place) 
based on theories of defective specifications, constructive changes, differing site 
conditions, breach of the duty not to delay, hinder or interfere with the contractor, and 
cardinal change (R4, tab 49 at 3-11)  
 
60.  On this same date, December 19, 2018, HPA submitted a certified claim for 
$4,281,841.69 and a 39-day time extension for what is referred to as the REA 10 work 
(ripping out the original work after the slugged welds were discovered and reinstalling 
per the original design) due to defective design, inadequate inspections, constructive 
changes, inadequate inspections, and breach of the duty not to delay, hinder or interfere 
with the contractor, and cardinal change (R4, tab 50 at 3-13).  
 
61.  CO Edge denied both claims in decisions dated March 27, 2019 (R4, tabs 54- 
55).  HPA thereafter filed timely appeals.  The Board docketed the REA 9 appeal as 
No. 62039 and the REA 10 appeal as No. 62040. 
 
DECISION - ASBCA Nos. 62039 AND 62040 
 
 When the language of a contract is unambiguous, it must be given its “plain and 
ordinary” meaning and the Board may not look to extrinsic evidence to interpret its 
provisions.  TEG-Paradigm Envtl., Inc. v. United States, 465 F.3d 1329, 1338 (Fed. Cir. 
2006) (citing Coast Federal Bank, FSB v. United States, 323 F.3d 1035, 1040 (Fed. Cir. 
2003) (en banc)).  The Board must interpret the contract as a whole so as to 
harmonize and give reasonable meaning to all of its parts.  NVT Techs., Inc. v. United 
States, 370 F.3d 1153, 1159 (Fed. Cir. 2004).  Contract provisions should not “be 
construed as being in conflict with [one] another unless no other reasonable interpretation 
is possible.”  Hol-Gar Mfg. Corp. v. United States, 351 F.2d 972, 979 (Ct. Cl. 1965). 
 
 As stated above, HPA contends that Drawing S-505 is contradictory because Flag 
Note 3 provides for the contractor to “bevel around existing . . . fillet welds” while Note 6 
provided that “parts of some welds will need to be partially removed . . . to allow proper 
fit up and welding” (finding 40).  The Board disagrees because it is possible to reconcile 
the two notes.  The Board concludes that reasonable meaning can be given to both notes 
by interpreting them to mean that the fillet welds generally would remain but that HPA 
could partially remove them as necessary to allow proper fit up and welding.  
 
Even if the Board were to consider extrinsic evidence, HPA fares no better.  As we 
have found, the back and forth between HPA and the base plate fabricator prior to the 
commencement of work demonstrates that HPA was well aware of Note 6 and did not 
express any confusion about partial removal of welds.  HPA also did not inquire about it 
prior to bid.  (Findings 40-41). 

21 
 
But this issue is not entirely resolved by these rules of construction.  HPA’s 
principal contention is that River City did raise this issue and sought clarification from 
NASA.  HPA has failed to convince the Board that this occurred due to both the lack of 
contemporaneous documentation and the lack of any other witness from NASA, HPA, 
Quality Iron, or River City who was present at the meeting where the unnamed NASA 
employee gave the direction to leave the welds in place, and the absence of any benefit to 
NASA in doing so (findings 42-43).  But even if the Board assumed that this 
conversation did take place, HPA does not contend that it was the CO who gave the 
direction.  Given how clearly Note 6 authorizes partial weld removal, and HPA’s 
contention that rescinding this authority resulted in more than $1 million in extra costs, 
this was not an appropriate topic for discussion with a lower level NASA employee at a 
meeting, at least without confirming the direction with the CO.  As we have already 
explained, only the CO has the authority to change the contract. 
 
 HPA’s claim for REA 9 work fails because everything followed from River City’s 
decision not to remove the existing fillet welds.  HPA’s REA 9 claim confirms that if 
River City had removed parts of the fillet welds “then none of this extra work would have 
been required” (R4, tab 49 at 3).  While the record is not crystal clear as to why River 
City did this, the most likely explanation is that River City thought that it would be 
quicker and less expensive to leave them in place (finding 44).  When John Phillips 
became senior project manager in March 2015 (after the base plate work had been 
completed), he realized that this had been an unwise decision (finding 57).  NASA bears 
no responsibility for any of this. 
 
 Similarly, REA 10 also fails, at least in part, because it stems from the initial 
decision not to remove the fillet welds.  As Mr. Phillips testified, HPA eventually did the 
work as provided on Drawing S-505, but it had to first rip out much of the work that it 
had done (finding 58).  HPA confirms in its REA 10 claim that if the fillet welds had 
been removed when it first did the work “all of the welds would have passed except for 
the two (2) where a bolt was placed in the weld . . . .” (R4, tab 50 at 7).  Thus, if River 
City had simply done the work as designed from the start, none of this additional work 
would have been necessary.   
 
 REA 10 also fails because it was River City that hired the welder who slugged the 
welds (finding 51).  It was HPA, Quality Iron, and River City that failed to supervise him 
properly so that he could not slug the welds.  But for the slugged welds, the problems 
with the other welds likely would not even have been discovered (findings 51-55). 
 
 The Board rejects HPA’s contention that NASA bears some responsibility because 
if it had provided the CWI it supposedly agreed to provide in its response to RFI 146A, 
then the slugged welds would never have occurred.  The Board disagrees.  While the 

22 
 
phrase in HPA’s RFI, “NASA’s CWI or designated representative,” is ambiguous, 
context is important.  Specifically, as we have found:  (1) the contract required only HPA 
to provide a CWI; (2) HPA retained Robert Mader (through a subcontractor) as its CWI; 
(3) NASA did not state in its response to RFI 146 that it would provide its own CWI; 
(4) no one at the time questioned why there was no NASA CWI at the project; (5) NASA 
had no incentive to hire a CWI because the contract did not require it to hire a CWI and 
HPA did not offer NASA any credit to offset the costs of hiring a CWI; (6) an RFI is not 
the proper way to change the contract; and (7) the COR who responded to the RFI did not 
have the authority to change the contract (findings 16, 49-50).  In these circumstances, 
the Board concludes that the most reasonable interpretation of “NASA’s CWI or 
designated representative” is that it simply referred to Robert Mader.  Finally, the Board 
also observes that because Mr. Mader was unable to prevent the slugged welds or welds 
with lesser deficiencies, the effect, if any, of NASA adding its own CWI is speculative.         
 
The contract included FAR 52.246-12, Inspection of Construction (finding 1).  
This is a lengthy clause that repeatedly provides that the contractor is responsible for 
inspecting the work, that it is responsible for remedying defective work, and that to the 
extent that NASA performs its own inspections, those inspections are for its own benefit, 
not to protect the contractor from its mistakes (or in this case, intentional destructive 
acts).  We highlight several relevant provisions of this clause: 
 
  (b) The Contractor shall maintain an adequate inspection 
system and perform such inspections as will ensure that the 
work performed under the contract conforms to contract 
requirements. . . . 
 
  (c) Government inspections and tests are for the sole benefit 
of the Government and do not— 
 
  (1) Relieve the Contractor of responsibility for providing 
adequate quality control measures; 
 
  (2) Relieve the Contractor of responsibility for damage to or 
loss of the material before acceptance; 
 
  (3) Constitute or imply acceptance; or 
 
  (4) Affect the continuing rights of the Government after 
acceptance of the completed work . . . . 
 

23 
 
  (d) The presence or absence of a Government inspector does 
not relieve the Contractor from any contract requirement . . . . 
 
  (e) The Contractor shall promptly furnish, at no increase in 
contract price, all facilities, labor, and material reasonably 
needed for performing such safe and convenient inspections 
and tests as may be required by the Contracting Officer. . . . 
 
  (f) The Contractor shall, without charge, replace or correct 
work found by the Government not to conform to contract 
requirements, unless in the public interest the Government 
consents to accept the work with an appropriate adjustment in 
contract price. The Contractor shall promptly segregate and 
remove rejected material from the premises. 
 
FAR 52.246-12; Granite Const. Co. v. United States, 962 F.2d 998, 1003 (Fed. Cir. 1992) 
(“The lack of government inspection does not relieve the contractor of the burden of 
providing conforming materials under the contract.”). 
 
 Finally, HPA also contends that NASA violated the duty of good faith and fair 
dealing by first agreeing to omit the UT test requirement only to re-impose it later when 
“everyone knew” that the welds would not pass (app. reply at 2, 17).  The Board 
disagrees.  There is no evidence that NASA imposed the UT test requirement after the 
slugged welds were discovered or that “everyone” knew that this was not an appropriate 
reaction to the sabotaged welds.  In fact, the evidence indicates that, as the prime 
contractor, HPA shared the same sense of consternation or betrayal as NASA after it 
learned that an employee of a sub-subcontractor had done this.  HPA reacted immediately 
to hold Quality Iron responsible and require it to inspect all the welds and fix those found 
to be flawed.  Part of this inspection and repair process involved UT inspections, but 
there is no indication that NASA forced it on HPA.  (Findings 51, 54-56)  HPA has not 
shown that there was a better, faster, or cheaper response to the problem once the slugged 
welds were disclosed. 
 
 Appeal Nos. 62039 and 62040 are denied. 
        
 ADDITIONAL FINDINGS OF FACT APPEAL No. 62042 
 
 62.  The claim that is the basis for this appeal was made by HPA on behalf of 
Quality Iron for what it (Quality Iron) calls excessive movement of the B2 test stand 
during the erection of the SLS Support Tower and Access Tower steel.  According to 
Quality Iron’s John Phillips, the structure was moving more than two inches.  He testified 

24 
 
that the structure, which is U-shaped, was expanding and contracting at the open end of 
the U (tr. 3/50-52).  This caused HPA a variety of problems, especially the inability to 
line up bolt holes (id. at 53).  HPA contends that standards incorporated in the contract 
allow the steel to expand or contract approximately 1/8 inch per 100 feet for each change 
of 15 degrees Fahrenheit (app. supp. R4, tab 3 at 60).  HPA offers three types of evidence 
in support of its contentions: surveys, physical measurements, and expert testimony (app. 
reply at 25). 
 
 63.  The Board finds that the surveys are inconclusive.  Both parties commissioned 
surveys but the surveyors produced inconsistent results (tr. 6/154).  On March 29, 2016, 
an HPA vice president, Clyde McCutcheon, wrote to Quality Iron expressing 
considerable doubt that the surveys showed that the test stand was moving and instead 
blaming Quality Iron for fabrication errors.  He wrote: 
 
I have not seen anything other than anecdotal evidence that 
the stand is moving other than in predictable ways from 
thermal expansion. . . .  We have used the same surveyor here 
since 2012, coming off the same control points that allowed 
us to lay out and drill the holes for the MPTA base plates 
[within] thousandths.  We have used the same control lines 
for center line of structure since that time as well.  The 
benchmark set on the structure is certified within thousandths 
of the theoretical elevation.  The location errors for the 
Forward Thrust Attachments and Aft Thrust attachment were 
not fabricated in the proper location relative to each other.  
We have been waiting for weeks for John [Phillips] to 
produce anything concrete . . . . 
 
(R4, tab 57a at 2) 
 
 64.  HPA’s surveyor did not testify at the hearing.  The parties instead filed a 
stipulation of expected testimony by the surveyor that diminished any support his surveys 
provided to HPA.  He stated: 
 
In my professional opinion, there are several factors 
that can affect the accuracy of surveys taken at the same 
location, but on different dates. By that I mean, there are 
several factors that can affect the “repeatability” of surveys, 
thereby calling in question whether a surveyor can 
definitively state whether a structure has moved when 

25 
 
multiple surveys of the same location(s), taken on different 
dates contain different measurements. 
 
. . . . 
 
I am aware that Harry Pepper has used the variations 
found in several of my surveys, taken at the same 
locations/elevations on the test stand, but on different dates, 
to illustrate what they believe is movement of the test stand, 
and to document specific amounts of movement. I will vouch 
for the accuracy of the various surveys that I/my company 
performed; however, as I earlier stated, I have concerns about 
the “repeatability” of surveys, and I cannot state that any 
party can establish movement solely by comparing survey 
results/measurements taken at the same test stand locations, 
on different dates. As stated during my deposition, I do not 
have an opinion one way or the other as to whether this 
particular test stand moved during our survey work. 
 
(Ex. G-16) 
 
 65.  Next, HPA relies on measurements taken by Quality Iron’s John Phillips with 
a measuring tape.  As the Board finds below in the discussion of the testimony from 
HPA’s expert, the dispute devolves down to whether over a distance of approximately 
34 feet the two ends of the structure were moving in and out by about one-half inch, 
which would require a high level of precision for a hand measurement.  The photos that 
HPA has submitted raised questions about the accuracy of the measurements because 
some photos show twisting of the tape measure and the Board cannot tell if Quality Iron 
used accurate benchmarking of the tape (same start and endpoints each time) (tr. 4/139; 
R4, tab 63). 
 
66.  HPA’s expert, Dr. Thomas Tarpy, agreed that the photos did not demonstrate 
that Quality Iron had used proper benchmarking in taking the measurements and that the 
twisting seen in the photos could impact the accuracy (tr. 4/139-43).  Because of the 
small amount of movement at issue, the tape measurements do not have sufficient indicia 
of reliability for the Board to find that they support the claimed movement. 
 
 67.  Finally, HPA presented expert testimony from Dr. Tarpy in the field of 
structural steel engineering and design, and oversight of structural engineering, 
fabrication, and erection (tr. 4/85).  However, Dr. Tarpy’s testimony hurt HPA more than 
it helped.  Dr. Tarpy did not believe it was possible that the test stand moved more than 

26 
 
two inches as Quality Iron contends.  Rather, he testified that the movement was “up to 
three eighths, maybe a half inch in some cases” (tr. 4/119).  However, as we have already 
found, neither the surveys, nor the hand measurements support even this amount of 
movement.  And Dr. Tarpy agreed that the work required by a 3/8 to 1/2-inch movement 
would have been much less than the 2+ inches alleged by Quality Iron.  He characterized 
this as a “night and day” difference and that there was “no comparison” in the amount of 
work that would be required as a result of movement at these levels.  (Tr. 4/150)  
 
 68.  Dr. Tarpy also opined that when Quality Iron raised the movement issue, 
NASA’s designer should have approved the use of slotted connections for fit up of 
horizontal members into the sides of the vertical members (tr. 4/102).  But there is no 
evidence that HPA ever asked NASA to approve the use of slotted connections (tr. 9/42, 
10/10). 
 
 69.  Dr. Andrew Martin, the project manager for NASA’s structural steel design 
contractor, testified credibly that while “everything moves,” the B2 test stand was “about 
the beefiest structure” he had ever been associated with and was “nuclear blast resistant.”  
He did not agree that the structure moved in the amount HPA claimed.  (Tr. 6/107)  
Moreover, he testified convincingly that situations do occur where bolt holes in 
fabricated steel do not line up but skilled ironworkers have a variety of techniques to 
address this problem (id. at 110-12).     
 
 70.  HPA submitted a certified claim on December 20, 2018, (referred to as REA 
12) seeking $4,102,121.47 and a 227-day delay based on theories of defective 
specifications, breach of the duty not to hinder, delay or interfere with HPA, constructive 
changes, differing site conditions, and cardinal change (R4, tab 52 at 8-16). 
 
 71.  CO Edge denied the claim on March 27, 2019 (R4, tab 57).  HPA filed a 
timely appeal that the Board docketed as No. 62042.  
 
DECISION - APPEAL No. 62042 
 
 Because HPA has not proven that the test stand moved in any meaningful way, 
this appeal is denied. 
 
OTHER CLAIMS 
 
 At pages 44-54 of HPA’s opening brief, after its proposed findings of fact on the 
four appeals, it presents a section entitled “Breach of Contract.”  HPA states: “In addition 
to the four discrete claims discussed above, the proof showed that from the outset of the 
construction NASA breached its contractual duty of good faith and not to hinder, delay or 

27 
 
interfere with HPA’s performance by NASA’s egregious and continuous delays.”  (app.  
br. at 44).  HPA does not make a separate money demand for the alleged breach of 
contract and the section appears to be simply an attempt to buttress HPA’s claims by 
reciting a litany of other supposed bad acts by NASA that largely appear unrelated to the 
four appeals.  For example, it contends that NASA hindered HPA by: delaying shop 
drawing approval, solving site access issues, issuing change orders when needed, 
responding to RFIs, providing information concerning government furnished property, 
and delivering field change requests (app. br. at 50-51).  
 
 If HPA had other claims against NASA for delay or hindrance, it could have 
submitted a claim to the contracting officer.  The Board has carefully examined the facts 
of the four appeals after a two-week hearing.  The Board has decided all four appeals on 
the merits.  The other supposed bad acts alleged by HPA do not revive claims that the 
Board has found to fail on the facts nor does it add anything to the claim that the Board 
has sustained in part.  Accordingly, the Board finds that the contentions on pages 44-54 
of HPA’s brief do not add anything to the four appeals and that no further action by the 
Board is necessary. 
 
CONCLUSION 
 
 The Board sustains ASBCA No. 62038 in part, and denies ASBCA Nos. 62039, 
62040, and 62042. 
 
 Dated:  November 3, 2021 
 
 
 
 
 
 
 
 
 
 
 
(Signatures continued) 
 
 
 
MICHAEL N. O’CONNELL 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
 


28 
 
I concur 
 
 
 
JOHN J. THRASHER 
Administrative Judge 
Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 J. REID PROUTY 
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. 62038, 62039, 62040, 
62042, Appeals of Harry Pepper and Associates, Inc., rendered in conformance with the 
Board’s Charter. 
 
 Dated:  November 3, 2021  
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals