JE Sinn Consulting, LLC
Docket: ASBCA 63353, ASBCA 63383
Decision date: 2023-05-05

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE WOODROW 
 
 Appellant, JE Sinn Consulting, LLC (JE Sinn or appellant), elected to pursue 
these appeals under the Board’s Rule 12.2, Small Claims (Expedited) procedure.  
Accordingly, this decision shall have no precedential value, and in the absence of 
fraud shall be final and conclusive and may not be appealed or set aside.  See 
41 U.S.C. § 7106(b)(4)-(5).  Mr. Joel Sinn, President of JE Sinn, is representing 
appellant pro se. 
 
 On September 18, 2020, the Air Force awarded Contract  
No. FA3016-20-C-0102 to JE Sinn in the total amount of $291,688 (R4, tab 6  
at 1-2).  The contract was a firm-fixed-price (FFP) design-build construction contract 
for the replacement of a culvert bridge on Cowgill Road at Joint Base San Antonio 
(JBSA)-Camp Bullis, Texas (id. at 1, 4, 34).  The contract included Contract Line Item 
Number (CLIN) 0001 for the design work, which required submission of 65%, 95%, 
and 100% design packages, and CLIN 0002 for the construction work with an overall 
performance period of 222 days (R4, tab 6 at 1, 4).   
 
 The Air Force issued the Notice to Proceed (NTP) for the design work on 
September 28, 2020, with a scheduled completion date of February 8, 2021 (R4, 
tab 7).  On January 26, 2021, the parties executed a bilateral modification 
(Modification No. P0001) to extend the design period to April 1, 2021.  This 
modification included a standard release of any monetary claims associated with the 
facts and circumstances of the modification.  (R4, tab 8 at 2)  The pertinent language 
releases “all liabilities, obligations, claims, and demands whatsoever under or arising 
from the said contract for further equitable adjustments attributed to such facts or 
Appeals of - )  
 )  
JE Sinn Consulting, LLC ) ASBCA Nos. 63353, 63383 
 )  
Under Contract No. FA3016-20-C-0102 )  
   
APPEARANCE FOR THE APPELLANT: Mr. Joel E. Sinn 
    President 
  
 
 
APPEARANCES FOR THE GOVERNMENT: Caryl A. Potter III, Esq. 
    Air Force Deputy Chief Trial Attorney 
 Michael J. Farr, Esq. 
    Trial Attorney 

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circumstances giving rise to this modification.  This release of claims for this 
modification is agreed to be full and complete without any exceptions.”  The extension 
of the design period was necessary due to delays in processing base passes for 
appellant’s personnel and for the Air Force’s review of the appellant’s design 
submittals (tr. 29-34).  JE Sinn submitted the final 100% design package on March 26, 
2021, and the Air Force approved the final design on April 7, 2021 (R4, tab 50 at 5). 
 
 On April 28, 2021, the parties bilaterally modified (Modification No. P00002) 
the contract to address the discovery of lead-based paint on the bridge structure, 
adding an additional amount of $5,999.41 for lead paint abatement work.  This amount 
included only JE Sinn’s direct costs, but not extended overhead (tr. 43).  The 
modification included a standard release of any additional monetary claims associated 
with the facts and circumstances of the modification.  The release language is virtually 
identical to the release in Modification No. P00001 (R4, tab 9 at 4).  On June 24, 2021, 
the Navy issued a NTP for the construction work (including lead-based paint 
abatement) and subsequently issued unilateral modification (Modification 
No. P00003) to establish the contract completion date of October 12, 2021 (R4, 
tabs 12 at 2, 13). 
 
 On August 26, 2021, JE Sinn poured the concrete for the bridge deck.  The last 
concrete truck arrived three hours late.  (R4, tabs 14 at 2, 44 at 3)  During the delay, 
part of the unfilled area concrete started to set, creating a “cold joint” in what was 
intended to be a monolithic concrete structure (R4, tab 44 at 3-4; tr. 45-46).  As a 
result, JE Sinn’s Designer of Record (DOR), Munoz Engineering, recommended that 
tensile strength tests be performed on the bridge deck concrete (R4, tabs 16 at 4, 18).  
On September 23, 2021, JE Sinn notified the Air Force that the tensile strength test 
failed, and, on October 4, 2021, the DOR recommended removing and replacing the 
concrete placed after the three-hour delay in pouring (R4, tab 21 at 2, 9).  On 
October 6, 2021, the Air Force civil engineer office provided comments regarding the 
DOR’s recommended course of action, including stating the need to include an 
additional tensile strength test, including citing the applicable American Society for 
Testing and Materials (ASTM) number, the PSI or MPa rating needed for a passing 
test result, and the timing of the test, i.e., how many days after the concrete pour (R4, 
tab 22 at 3).  That same day, the Air Force civil engineer office held a conference call 
with the DOR and JE Sinn, during which the Air Force agreed with the proposed 
repair, but requested that a new tensile strength test be accomplished as a means to 
inspect whether the repair was successful (R4, tab 44 at 4; tr. 49, 124-25).  JE Sinn’s 
DOR, however, stated that a second tensile strength was unnecessary (tr. 50-51, 55), 
and, at that time, the CO did not expressly direct JE Sinn to perform the second tensile 
strength test (tr. 55-56).   
 
 On October 13, 2021, a heavy storm passed through the San Antonio area, 
causing the dry creek bed under the project bridge to overflow the top of the bridge 

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deck and the road on either side of the bridge (R4, tab 25 at 2).  The high water 
washed away a significant amount of road and shoulder base material and dislodged 
the bracing holding the bridge forms for the concrete railing (id.).  According to JE 
Sinn, repairing the damage required it to remove all of the loose rocks from the new 
road base, scarify the remaining base, add and compact new base material, and then 
repair 300 feet of shoulders (R4, tabs 24 at 6-10, 25 at 8; tr. 62-63). 
 
 On October 13, 2021, JE Sinn advised the Air Force that the DOR did not 
specify a requirement for another tensile strength test as part of the remedial work, that 
the method used in the repairs is standard for this type of repair, and that a tensile 
strength test is not listed as a requirement following such repairs (R4, tab 44 at 4; 
tr. 50-51, 54-55).  On November 15, 2021, JE Sinn notified the government that it had 
completed the concrete repairs and asked for a final inspection, stating that it was not 
necessary to retest the tensile strength of the repaired bridge deck because the DOR 
had been present throughout the repairs.  If the Air Force insisted upon retesting, 
JE Sinn said it would seek reimbursement for the costs of the retest.  (R4, tabs 39 
at 9-10, 44 at 4) 
 
 On December 2, 2021, the Air Force conducted the final inspection (R4, tab 44 
at 4).  When the Air Force civil engineering project manager, Mr. Dwight Wellons, 
asked appellant for the results of the second tensile strength test and stated that without 
such results, the Air Force could not accept the project, appellant again asserted that 
since the DOR did not require the test as part of the proposed remedial work, the test 
was neither necessary nor required.  (id. at 4-5; tr. 55-56). 
 
 On January 12, 2022, the CO directed JE Sinn to perform a second tensile 
strength test on the repaired concrete (R4, tab 39 at 1).  JE Sinn performed the test and 
provided the Air Force with the test results on January 20, 2022, which showed that 
the repairs and rework performed were successful.  (R4, tab 42 at 5-8).  Subsequently, 
on January 13, 2022, the CO issued appellant a final acceptance letter (R4, tab 41). 
 
Requests for Equitable Adjustment 
 
 On September 14, 2021, appellant submitted its first request for equitable 
adjustment (REA) for additional compensation and a nine-day time extension due to 
heavy rainfalls that allegedly delayed the project for seven days, plus a weekend, and 
resulted in additional expenses to pump water out of the creek bed and lost time on the 
contract work (R4, tab 17 at 2).  The first REA also sought additional compensation 
for increases in the price of reinforcing steel needed for the project allegedly due to 
inflation caused by COVID-19 and fabrication plant shutdowns (id.).  The total 
amount of the first REA was $13,876.60 (R4, tab 26 at 1).   
 

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 On October 29, 2021, JE Sinn submitted a second REA for $24,144.78 to repair 
damage to the project work caused by the October 13, 2021 storm (R4, tab 25 at 2, 
10).  On November 4, 2021, JE Sinn decided to proceed with the storm damage 
repairs, pending approval of the second REA (R4, tab 40 at 2).  
 
 On November 18, 2021, the CO rejected the first REA on the grounds that the 
contractor bears the risk of increased costs in a firm fixed-price contract.  The CO also 
concluded that JE Sinn had not demonstrated how the increased costs were the fault of 
the government.  (R4, tab 26 at 2)  On November 29, 2021, the CO denied the second 
REA in its entirety, on the basis that JE Sinn’s firm fixed-price contract places the risk 
of increased costs on the contractor and that JE Sinn failed to demonstrate entitlement 
to an equitable adjustment (R4, tab 31 at 4). 
 
 On January 20, 2022, JE Sinn submitted a third REA for the costs associated 
with the second tensile strength test (R4, tab 43).  On February 7, 2022, the contracting 
officer rejected appellant’s third REA, stating that retesting the tensile strength of the 
concrete bridge deck was necessary to ensure that the repaired work was satisfactory 
and that the second test would not have been required if the work had been performed 
satisfactorily the first time (R4, tab 44 at 6). 
 
DECISION 
 
 The proximate causes of JE Sinn’s additional costs were the late arrival of the 
concrete truck during the construction of the bridge deck and the October 13, 2021 
storm.  JE Sinn admits that it was responsible for the late delivery of the concrete truck 
(app. br. at 1; tr. 85-86).  Although JE Sinn contends that government delays in issuing 
base passes and reviewing JE Sinn’s design submissions pushed the project schedule 
into the period of the October storm (tr. 87, 100), JE Sinn has not met its burden of 
demonstrating that these delays were the government’s fault or that the government 
should bear responsibility for a storm, which is an “act of God.”  Moreover, even with 
these delays, we find that JE Sinn would have completed the construction work on the 
bridge deck by October 12, 2021, one day prior to when the severe storm struck 
(tr. 85).  Both the notice to proceed and Modification No. P00003 established 
October 12, 2021 as the project completion date.  Although JE Sinn contends that the 
government’s refusal to let it pave the asphalt road on either side of the bridge caused 
most of the storm damage (tr. 102-21), the record demonstrates that JE Sinn elected to 
delay the asphalt paving while performing the concrete repairs (R4, tab 21 at 2; 
tr. 129).   
 
 We also conclude that JE Sinn is not entitled to any additional compensation, 
such as extended overhead, for the delays that were the subject of bilateral 
Modification Nos. P00001 and P00002 (app. br. at 3).  Modification No. P00001 
addressed delays in processing base passes and in design review, while Modification 

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No. P00002 included delays for addressing the presence of lead paint.  Both bilateral 
modifications contained a standard release of claims from all liabilities arising from 
the contract attributed to the facts or circumstances giving rise to the modification.  
Bell BCI Co. v. United States, 570 F.3d 1337, 1341-42 (Fed. Cir. 2009) (enforcing 
release of liability in bilateral contract modification).   
 
 JE Sinn further argues that the government delays forced it to order steel when 
the price had increased due to the pandemic (app. resp. at 5).  However, pursuant to 
Federal Acquisition Regulation (FAR) 16.202-1, appellant’s firm fixed-price contract 
is not subject to any adjustment based the contractor’s cost experience in performing 
the contract.  A “firm-fixed-price contract provides for a price that is not subject to any 
adjustment on the basis of the contractor’s cost experience in performing the contract.”  
FAR 16.202-1; see Safaa Al-Rawaby Co., ASBCA No. 63146, 23-1 BCA ¶ 38,314 
at 186,050 (citing Lakeshore Eng’g Servs., Inc. v. United States, 748 F.3d 1341, 1347 
(Fed. Cir. 2014) (“The essence of a firm fixed-price contract is that the contractor, not 
the government, assumes the risk of unexpected costs.”)).  Therefore, we conclude that 
JE Sinn is not entitled to costs associated with increases of the price of reinforced steel 
sought in its first REA. 
 
 JE Sinn further contends that the government deliberately waited until all the 
storm damage repairs were complete before denying JE Sinn’s first REA (app. resp. 
at 3).  JE Sinn has produced no evidence that the government intentionally delayed 
its response to the REAs.  Indeed, the CO issued the Air Force’s written response to 
the first REA within two months of receipt (September 2021 to November 2021).  
Moreover, JE Sinn unilaterally elected to go forward with repairing the storm damage, 
even though the government had not yet responded to the REA (app. resp. at 2).   
 
 With respect to the costs associated with the second tensile strength test, we 
hold that the Air Force put JE Sinn on notice of the need to conduct a second tensile 
strength test when it commented on the DOR’s recommendation (tr. 124-25; R4, 
tab 22 at 3).  We also hold that such a test was reasonable and necessary to ensure the 
integrity of the bridge deck (tr. 126-27).  The fact that the Air Force signed the final 
inspection without noting any deficiencies is not dispositive, because final inspection 
is not equivalent to final acceptance (tr. 88-91).  FAR 52.246-12, INSPECTION OF 
CONSTRUCTION (AUG 1996), which is expressly incorporated into Section E of the 
contract (R4, tab 6 at 7), provides that “[g]overnment inspections and tests are for the 
sole benefit of the Government and do not . . .[c]onstitute or imply acceptance.”  
FAR 52.246-12(c)(3).  FAR 52.246-12(e) further states that “[t]he Government may 
charge to the Contractor any additional cost of inspection or test when work is not 
ready at the time specified by the Contractor for inspection or test, or when prior 
rejection makes reinspection or retest necessary.”   

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 Therefore, we conclude that JE Sinn is not entitled to compensation for the cost 
of the second tensile strength test. 
 
CONCLUSION 
 
 For these reasons, these  appeals are denied. 
 
 Dated:  May 5, 2023 
 
 
 
 
 
 
 
 
 
 
 
 
KENNETH D. WOODROW 
Administrative Judge 
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. 63353, 63383, Appeals of 
JE Sinn Consulting, LLC, rendered in conformance with the Board’s Charter. 
 
 Dated:  May 5, 2023 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals