ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
 
OPINION BY ADMINISTRATIVE JUDGE OSTERHOUT 
 
The appeals in this dispute concern the termination for default of a 
$31.5 million construction contract, Contract No. W912TF-15-C-0500 (the contract) 
between Cutter Enterprises, LLC (Cutter or appellant) and the New Hampshire 
Air National Guard (NHANG, the Army, or the government).  The contract 
specifications included altering two existing KC-135R aircraft hangar buildings 
at Pease Air National Guard (ANG) Base, NH:  Fuel Cell Building 253 (Building 253) 
and Maintenance Hangar Building 254 (Building 254).  The alterations would allow 
the ANG to house the new KC-46 tanker.  After a series of delays and other issues, 
the government terminated the contract for default.  Appellant appealed the decision.  
Over time, Cutter filed five appeals.  The five appeals covered the termination for 
default (ASBCA Nos. 61021 and 61146) and the various claims Cutter submitted 
seeking time extensions and associated costs (ASBCA Nos. 61021, 61061, and 
61278).  We deny the appeals. 
  
FINDINGS OF FACT 
 
I.  The Solicitation and the Contract 
 
1.  On January 28, 2015, the NHANG issued Solicitation No. W912TF-15-C-
0500 to alter two existing KC-135R aircraft hangar buildings at Pease ANG Base to 
house the new KC-46 tanker (R4, tab 37 at 1).   
 
Appeals of - )  
 )  
Cutter Enterprises, LLC ) 
) 
ASBCA Nos. 61020, 61021, 61061 
61146, 61278 
 )  
Under Contract No. W912TF-15-C-0500 )  
   
APPEARANCES FOR THE APPELLANT: Timothy T. Corey, Esq.  
Peter J. Martin, Esq. 
    Hinckley, Allen & Snyder LLP 
    Hartford, CT 
 
APPEARANCES FOR THE GOVERNMENT: Dana J. Chase, Esq. 
    Army Chief Trial Attorney 
 LTC Susan Kim, JA 
    Trial Attorney 

2 
 
2.  On February 19, 2015, Cutter’s Chief Executive Officer (CEO), Patrick Dwyer, 
attended a site visit (R4, tab 66 at 3). 
 
3.  On April 28, 2015, Cutter submitted its proposal for the project (R4, tabs 5-6). 
 
4.  On July 27, 2015, the government awarded the contract to appellant (R4, tab 7). 
 
5.  On August 18, 2015, the government issued the notice to proceed to 
appellant and appellant acknowledged receipt (R4, tab 10). 
 
6.  The period of performance was 900 days after notice to proceed.  The date 
by which appellant was required to complete all work was February 3, 2018 (id.). 
 
7.  Cutter was to commence work within 10 days of receipt of the notice to 
proceed (id.). 
 
8.  The contract incorporated by reference Federal Acquisition Regulation 
(FAR) 52.249-10, DEFAULT (FIXED-PRICE CONSTRUCTION (APR 1984) (R4, 
tab 7 at 13). 
 
9.  The contract incorporated by reference, FAR 52.236-5, MATERIAL AND 
WORKMANSHIP (APR 1984) (R4, tab 7 at 12).   
 
10.  The contract incorporated by reference FAR 52.236-15, SCHEDULES 
FOR CONSTRUCTION CONTRACTS (APR 1984) (R4, tab 7 at 13). 
 
11.  The contract incorporated by reference FAR 52.246-12, INSPECTION OF 
CONSTRUCTION (AUG 1996) (R4, tab 7 at 13).   
 
12.  The contract included Special Contract Requirement 27, Contractor Quality 
Control, which stated: 
 
27.1.  The contractor shall comply with the quality control 
provisions as specified herein.  The Contractor shall 
perform all quality control inspection and/or testing 
required by this contract unless specifically designated to 
be performed by the Government.  The quality control 
system consists of plans, workmanship, fabrication, 
construction, and operations that comply with contract 
requirements.  The system shall cover construction 
operations, including fabrication both on-site and off-site, 
and shall be keyed to the proposed construction sequence.  
If the contractor fails to submit an acceptable quality 

3 
 
control plan within the time herein prescribed, the 
Contracting Officer may refuse to allow construction to 
start if an acceptable interim plan is not furnished or may 
withhold funds from progress payments in accordance with 
the contract clause titled, “Payments under Fixed Price 
Construction Contracts”, until such time as the contractor 
submits an acceptable final plan. 
 
27.2  Quality Control Plan 
 
27.2.1.  General.  Upon receipt of the Notice of Contract 
Award, the contractor’s quality control plan electronic 
format shall be submitted for acceptance in accordance 
with Part 1-General para 3.4 of specifications. 
 
27.2.2.  Acceptance.  The Contracting Officer’s 
Representative will review the quality control plan.  
The contractor shall make such changes and additions as 
necessary for clarity and completeness as requested by the 
Contracting Officer’s Representative through the 
Contracting Officer.  Acceptance of the contractor’s plan 
is predicated on satisfactory performance during 
construction.  Acceptance is conditional and the 
Government reserves the right to require the contractor to 
make changes in quality control plans, personnel and 
operations to correct deficiencies and to assure contract 
compliance. 
 
27.2.3.  Changes.  When the contractor proposes changes 
in the quality control plan or implementation during 
construction, the Contracting Officer shall be notified in 
writing.  The contractor shall implement no changes prior 
to acceptance in writing by the Contracting Officer. 
 
(R4, tab 7 at 40-41) (emphasis added) 
 
13.  The specifications included a requirement to survey the site prior to 
demolition and deconstruction work.  The specifications also required Cutter to, 
“Record existing conditions in the presence of the Contracting Officer showing the 
condition of structures and other facilities adjacent to the areas of alteration or 
removal.”  (R4, tab 1 at 229)  Photographs were acceptable to record existing 
conditions and the specifications specifically referenced “conflicting electrical 
conduits” in paragraph 1.11.  Further, the specification directed, “It is the Contractor’s 

4 
 
responsibility to verify and document outages required during the course of work, and 
to note these outages on the record document.”  (Id. at 229-30) 
 
14.  The specifications included instructions and restrictions for paving during 
cold weather for both buildings.  Specification 3.3.4. restricted concrete from being 
placed between October 15 and April 15, excluding certain work from being 
performed during the winter months.  (R4, tab 1 at 1790-91, tab 3 at 1769)  
Specifically, it stated: 
 
3.3.4 Paving in Cold Weather 
 
Concrete shall not be placed during the period of October 15 
through April 15.  From April 16 through October 14, comply 
with the following:  Cold weather paving shall conform to 
ACI 306R. Special protection measures, as specified herein, 
shall be used if freezing temperatures are anticipated before 
the expiration of the specified curing period.  Placement of 
concrete shall not begin unless the ambient temperature is 
at least 35 degrees F and rising.  Thereafter, placement of 
concrete shall be halted whenever the ambient temperature 
drops below 40 degrees F.  When the ambient temperature is 
less than 50 degrees F, the temperature of the concrete when 
placed shall be not less than 50 degrees F nor more than  
75 degrees F.  Heat the mixing water and/or aggregates to 
regulate the concrete placing temperature.  Materials entering 
the mixer shall be free from ice, snow, or frozen lumps.  Salt, 
chemicals or other materials shall not be incorporated in the 
concrete to prevent freezing.  Covering and other means shall 
be provided for maintaining the concrete at a temperature of 
at least 50 degrees F for not less than 72 hours after placing, 
and at a temperature above freezing for the remainder of the 
curing period.  Remove pavement slabs damaged by freezing 
or falling below freezing temperature to full depth, by full 
slab width, to the nearest indicated joint, and replace at the 
Contractor’s expense as specified in paragraph REPAIR, 
REMOVAL, REPLACEMENT OF NEWLY 
CONSTRUCTED SLABS.  Record air and concrete 
temperatures and temperature within the sample holding 
container and submit to Contracting Officer in accordance 
with the approved monitoring plan. 
 

5 
 
(R4, tab 1 at 1790-91)  This appears to be what the parties referred to as the 
“cold weather restriction”  or “winter restriction” throughout the record and 
testimony. 
 
15.  The specifications provided instructions for dealing with existing 
underground utilities at paragraph 1.12: 
 
A.  Verify on-site utilities prior to the start of construction. 
Where existing piping, utilities, oil and gas lines, and 
underground obstructions of any type that are to remain are 
indicated in locations to be traversed by new piping, ducts, 
and other work provided herein, and such are not indicated or 
specified to be removed, the elevations of the existing utilities 
and obstructions shall be determined before the new work is 
laid closer than the nearest manhole or other structure at 
which an adjustment in grade could be made.  Obtain required 
dig permits and notify the Contracting Officer 14 calendar 
days prior to any excavation. 
 
B.  If any utility line not shown on the drawings is found, 
notify the Contracting Officer and Base Civil Engineer’s 
office immediately.  Avoid damaging such line.  Do not alter 
without Contracting Officer’s approval. 
 
C.  If an active line has been inadvertently damaged or 
broken, take actions necessary to safeguard personnel and 
property from immediate harm, including but not limited to 
physiological, physical and environmental damages.  
Otherwise take no action until directed by the Contracting 
Officer. 
 
D.  After disposition is determined and carried out, record on 
the Record Set the nature of the line, original location and any 
changes made to the line. 
 
(R4, tab 1 at 52) 
 
Further, Paragraph 3.1.2 details requirements for utilities and related 
equipment.  In particular, the general requirements state: 

6 
 
 
3.1.2.1 General Requirements 
 
Do not interrupt existing utilities serving occupied or used 
facilities, except when authorized in writing by the 
Contracting Officer.  Do not interrupt existing utilities 
serving facilities occupied and used by the Government 
except when approved in writing and then only after 
temporary utility services have been approved and 
provided.  Do not begin demolition or deconstruction work 
until all utility disconnections have been made.  Shut off 
and cap utilities for future use, as indicated. 
 
3.1.2.2 Disconnecting Existing Utilities 
 
Remove existing utilities, as indicated or if uncovered by 
work and terminate in a manner conforming to the 
nationally recognized code covering the specific utility and 
approved by the Contracting Officer.  When utility lines 
are encountered but are not indicated on the drawings, 
notify the Contracting Officer prior to further work in that 
area.  Remove meters and related equipment and deliver to 
a location in accordance with instructions of the 
Contracting Officer. 
 
(R4, tab 1 at 230-31) 
 
16.  The specifications contained Section 260533 which dealt with raceways 
and boxes for electrical systems.  The section summary included:  “1. Metal conduits, 
tubing, and fittings[;] 2. Metal wireways and auxiliary gutters[;] 3. Surface raceways[; 
and] 4. Boxes, enclosures, and cabinets.”  (R4, tab 1 at 1458)  The section also 
contained a related requirement of Section 270528 which dealt with pathways for 
communications systems.  (Id. at 1458, 1658) 
 
17.  The specifications contained Section 260543 which dealt with underground 
ducts and raceways for electrical systems.  The section summary included:  “1. Direct-
buried conduit, ducts and duct accessories[;] 2. Concrete-encased conduit, ducts, and 
duct accessories[; and] 3. Handholes and boxes.”  (R4, tab 1 at 1474)  While portions 
of the section discussed electrical access outside, such as discussing earthwork (R4, 
tab 1 at 1478) we find that nothing in the section stated that the section solely applied 
outside the building.   
 

7 
 
18.  The specifications required excavation for structures to within a tolerance 
of plus or minus 1 inch. 
 
Excavate to indicated elevations and dimensions within a 
tolerance of plus or minus 1 inch. If applicable, extend 
excavations a sufficient distance from structures for 
placing and removing concrete formwork, for installing 
services and other construction, and for inspections. 
 
1. Excavation for Footings and Foundations:  Do not 
disturb bottom of excavation.  Provide 6-inch thickness 
crushed stone working mat below foundations where 
indicated. Excavate by hand or excavator with smooth-
edge bucket to final grade just before proof compacting 
and placement of crushed stone working mat. 
 
2. Excavation for Basin and Mechanical or Electrical 
Utility Structures: Excavate to elevations and 
dimensions indicated within a tolerance of plus or 
minus 1 inch. Do not disturb bottom of excavations 
intended as bearing surfaces. 
 
(R4, tab 1 at 1747) 
 
19.  The drawings stated that the “FAA 7460-1 ‘Notice of Proposed 
Construction or Alteration’ (For Building)” permit would be obtained by the 
government.  However, the contractor was required to obtain the FAA permit “for 
temporary construction crane.”  (R4, tab 2 at G02-00005)  
 
20.  Cutter did not plan to construct both buildings at the same time.  Instead, 
“[t]he project sequence was that [B]uilding 253, which is the fuel cell maintenance 
hangar, had to be constructed and useable first.  And then the Building 254 
maintenance hangar would then be available for us to begin construction.”  (Tr. 1/38) 
 
21.  Pursuant to the contract, appellant was required to submit its Preliminary 
Project Schedule 15 calendar days after acknowledgement of the notice to proceed 
(R4, tab 1 at 66).  The Preliminary Project Schedule formed the basis for the Initial 
Project Schedule and was to include submissions and approvals required by the 
contract, to include a Quality Control Plan, Safety Plan, Environmental Protection 
Plan, design activities, planned submissions, permits, design reviews, and other 
activities required in the first 90 calendar days of performance (id.).  The preliminary 
schedule was due not later than September 2, 2015 (R4, tab 35 at 7).  Appellant 
submitted the Preliminary Project Schedule on August 28, 2015 (R4, tab 13 at 2). 

8 
 
II.    Project Performance and Contract Administration 
 
  A.  Problems with Establishing Baseline Schedule 
 
22.  Pursuant to the contract, appellant was required to submit an Initial Project 
Schedule 42 calendar days after acknowledgement of the notice to proceed.  The Initial 
Project Schedule, also referred to as a baseline schedule by the parties, was required to 
“demonstrate a reasonable and realistic sequence of activities which represent all work 
through the entire contract performance period.”  (R4, tab 1 at 66)  The Initial Project 
Schedule was due no later than September 29, 2015 (R4, tab 35 at 7).   
 
23.  Appellant submitted the Initial Project Schedule, or NH-03, on November 2, 
2015 (R4, tab 11 at 2, tab 12 at 2).  This was more than one month later than required 
by the contract. 
 
24.  On November 19, 2015, the government rejected NH-03, documenting 
“revise and resubmit” as the final response action.  The government stated that the 
schedule did not comply with section 01 32 01 of the contract and provided examples 
of nonconformance with paragraph references to the section that required each action.  
The government included 14 examples to demonstrate nonconformance but 
specifically stated the rejection was not limited to those 14 examples.  These included 
that it was not cost-loaded, mandatory tasks were not included, third party inspections 
were not identified, a lack of sequencing, showing certain tasks as parallel instead of 
sequential, activities were not properly coded, and the critical path was not apparent.  
(R4, tab 60.013) 
 
25.  On December 15, 2015, appellant provided a revised baseline schedule 
NH-03, which the government rejected on December 30, 2015.  Cutter appeared to 
respond to 11 of the action items from the government’s reasons for rejecting the 
Initial Project Schedule but failed to respond to several items and did not adequately 
respond to several others.  This included that design and permit activities did not 
appear to be clearly tied to the start of work for several items, including, of note for 
these appeals, the structural steel connections, fire suppression sprinklers, and the fire 
alarm and mass notification system.  It also still had problems with demonstrating a 
clear critical path, where the critical path was not apparent and pre-requisites, 
antecedents, or follow-on activities were not clear as well as issues with the critical 
path not being correct in several places.  Sequencing also remained a problem.  
(R4, tab 60.014 at 3-4).  The government also provided several additional comments, 
including concrete for Building 253 being proposed to occur during cold weather, 
problems with the schedule being out of sequence or redundant, and a scheduling 
problem with the fire pumps being demolished in March 2016 and not being 
reconnected until September which was too long to not have fire pumps in place (id. 
at 4). 

9 
 
 
26.  Also in December 2015, the Contracting Officer’s Representative (COR), 
Captain Daniel Trembley, filed a COR Monthly Report where he characterized 
Cutter’s quality of work as satisfactory and wrote that issues were found and corrected 
through daily inspections or visits.  He further wrote that the Site Superintendent had 
been replaced because of concerns with his expertise and knowledge.  He also wrote 
that the government had concerns with Cutter’s Quality Control Manager but that 
Cutter had assigned a senior Quality Control Manager to help.  He calculated that 
Cutter was “[c]urrently estimated to be 3% behind schedule, but difficult to measure 
without approved schedule/baseline.”  (R4, tab 52.02 at 1)  He noted that several 
discrepancies were documented and currently being addressed (id.). 
 
27.  On December 15, 2015, the contracting officer (CO) sent Cutter the first 
letter of concern.  In the letter, the CO expressed his concerns with appellant’s Project 
Superintendent, outlining the deficiencies.  Deficiencies included:  
 
“[i]nability to interpret drawings demonstrated in the 
understanding of how the new footings tied into the 
existing building foundations, and that the tie beams 
needed to be poured before steel and roofing was installed 
over the winter; scheduling a technician to perform an 
additional compaction test when a geotechnical engineer 
for soil bearing capacity analysis was needed and 
requested; using an unapproved set of rebar shop drawings 
for the rebar installation; and ordering, and placing crushed 
stone material on the job site prior to submittal 
review/approval by the government and premature to 
compaction testing.”   
 
(R4, tab 11 at 1)  The CO also expressed concerns with the Quality Control Manager, 
stating the government had wasted time reviewing incomplete submittals, which 
should have been corrected by the Quality Control Manager.  The CO stated that the 
Quality Control Manager should have caught all of the problematic items for the 
Project Superintendent instead of their being pointed out by the government.  Finally, 
the CO also stated, “Lack of an approved project schedule also poses a great concern 
as it makes it very difficult for the [g]overnment to gauge Cutter’s progress on the 
project.”  (R4, tab 11 at 1-2)  The CO then outlined the submission and rejection 
timeline that had occurred with the project schedule.  The CO directed that 1) Cutter 
propose a replacement for the Project Superintendent and relieve the existing one of 
his duties; 2) provide a corrective action plan for better quality control; and 3) expedite 
submission of the final project schedule.  (Id. at 2) 
 

10 
 
28.  On December 23, 2015, Cutter responded to the letter of concern.  
Cutter agreed to replace the Project Superintendent but believed removing him was 
premature.  Further, Cutter agreed to integrate a part-time senior Quality Control 
Manager to assist the Quality Control Manager.  However, Cutter only agreed to 
provide this senior Quality Control Manager temporarily “until such time as Cutter 
determines that it has complied with Section 00800 paragraph 27 of the Prime 
Contract, and those requirements of the contract documents that are not in conflict 
with said section.”  (R4, tab 12 at 2)  Finally, while appellant acknowledged that the 
government had not approved a project schedule, it protested that it was not its fault.  
Cutter stated, “[t]he Prime Contract clearly states that the Contractor shall utilize the 
invoice forms provided at the pre-construction conference.  The only form provided by 
the Government at the pre-construction conference was AF3065 Contractor Progress 
Report.”  (Id.).  Appellant then stated that the government had been unsuccessful in 
using its own project manager software, had taken excessive time approving 
appellant’s Schedule of Values (SOV), incorrectly interpreted its own payment 
application, and caused delays in payment.  All of these items “[r]endered it 
impossible for Cutter to issue the project schedule to the Government prior to receipt 
of the approved SOV.”  (Id.)  Cutter also stated that nothing in its letter waived any 
rights and expressly reserved its rights (id. at 3). 
 
29.  On January 18, 2016, appellant submitted a baseline schedule update, or 
NH04, which the government approved on February 3, 2016 (R4, tab 60.016). 
 
30.  In his February 2016 COR Monthly Report, Captain Trembley downgraded 
Cutter’s quality of work to marginal and noted, “Column line #1 footing depth out of 
tolerance, paid $16K for structural analysis to determine structurally sound” and 
estimated Cutter was in excess of 10%, or at least 45 days, behind schedule.  (R4, 
tab 52.03) 
 
31.  In his March 2016 COR Monthly Report, the COR noted, “Several 
concerns with under slab conduit resulting in having to have the AE [(Architectural 
Engineer)] review (out of scope) and contractor having to make several changes.”  He 
noted that Cutter was nearly two months behind schedule and “slow to react to 
changing conditions.”  He noted an issue with a failing column pier.  (R4, tab 52.04)  
We find that this column pier was Column 12’D’ that is referenced throughout this 
Decision. 
 
32.  On June 5, 2016, Captain Trembley filed his COR Monthly Report for 
May 2016.  Under Contractor’s Quality of Work, he maintained the marginal quality 
of work rating and wrote, “Continued lack of adherence to specification 
requirements.”  (R4, tab 52.05)  He noted that project completion had slipped three 
months.  He also noted a continued lack of quality control by the Quality Control 

11 
 
Manager.  He also wrote, “Contractor cut power to [Building] 254 paint room because 
they didn’t bother to review the as-built plans nor conduct site survey.”  (Id.) 
 
33.  In his June 2016 COR Monthly Report, the COR downgraded Cutter’s 
quality of work to unsatisfactory and noted, “MANY issues with structural steel in 
addition to misalignment at C truss splices, including column flange braces incorrectly 
installed and misalignment of belt holes” (R4, tab 52.06).  He also documented 
“significant honeycombing of poured concrete stem wall, incorrect vertical rebar 
installed in stem walls into CMU, under slab conduit not installed per drawing and 
specification requirements, and incorrect depth of holes drilled for epoxied rebar” (id.).  
He documented concern that a building that met drawing and specification 
requirements would not be delivered.  He documented that Cutter was approximately 
29%, or six months, behind schedule.  He also documented that several quality issues 
were discovered by the COR and the A&E (Architectural and Engineer) 
representative.  Under customer complaints, he noted that Cutter cut power to an 
occupied hangar because of its failure to review as-built drawings and conduct a site 
survey.  (R4, tab 52.06) 
 
34.  In his July 2016 COR Monthly Report, Captain Trembley again 
documented Cutter as unsatisfactory for quality of work and noted issues with the way 
Cutter installed underslab conduit, that seal fittings were not at 18 inches as required, 
that vertical rebars were not installed in accordance with specifications, L-bars were 
not installed at all concrete wall intersections as required, 4000 PSI concrete was used 
instead of the required 5000 PSI, and a lintel over a door opening was installed 
incorrectly.  He was still concerned about Cutter not delivering a building the met the 
requirements of the drawings and specifications.  He noted that Cutter was 34% behind 
schedule, or more than six months behind, and getting worse each month.  He still 
noted that the COR and A&E representative identified several issues.  He also noted, 
“Most days everyone is gone by mid-afternoon, and by noon on Fridays, despite being 
months behind schedule.”  (R4, tab 52.07) 
 
B.  FAA Permits and Steel Fabrication/Erection Orders 
 
35.  On October 13, 2015, Cutter submitted a Notice of Proposed Construction or 
Alteration for a crane, which the parties call a Crane Permit (app. supp. R4, tab 278). 
 
36.  On November 2, 2015, the FAA sent an email to Canatal Industries, Inc. 
(Canatal), Cutter’s subcontractor for steel fabrication and erection, requesting 
additional information (R4, tab 76 at 117280).  The email included an internal FAA 
email asking for details about the crane, noted that the FAA representative did not see 
a filing for any permanent construction associated with the crane work, and asked if it 
was an alteration of an existing hanger or new construction (id. at 117281).   
 

12 
 
37.  On November 3, 2015, Canatal responded in red to a copy of the FAA 
internal email (R4, tab 76 at 117279-81).  Canatal responded that it would have three 
cranes, including two crawler cranes and one hydraulic crane (R4, tab 76 at 0117280-
81).  Canatal also stated that the hangar was new but tied into the existing Building 253 
(id.).  On November 9, 2015, the FAA asked Canatal to confirm there would be three 
cranes on site because they only saw two mentioned (id. at 0117278).  Also on 
November 9, 2015, Canatal confirmed they would have three cranes:  a 230 ton crawler 
crane, a 275 ton hydraulic crane, and an 80 ton crane (id.).  Canatal provided a height 
estimate of 145-160 feet for the height of the 80 ton crane (id.).  On November 10, 2015, 
Canatal sent an email to the FAA informing them that it had made a mistake and the 
height would be 185-200 feet for the 80 ton crane (id.).  Also on November 10, 2015, the 
FAA asked Canatal what the elevation was for the existing buildings (id.).  On 
December 14, 2015, Canatal asked the FAA for an updated status but it did not appear 
that the crane contractor had ever answered the question about the building height (id. 
at CUTTER0117277-78).  There is also no evidence in the record that Canatal informed 
Cutter that it needed to convey these communications to the government, including the 
FAA’s question about the Building Permit from November 2, 2015. 
 
38.  On December 15, 2015, the FAA sent Canatal an email expressing concern 
that using three cranes instead of one, as proposed for the project, would cause a 
significant impact on the function of VOR.  He also asked “if the people proposing the 
structure ever filed a case for the building itself” and asked if Cutter ever filed for the 
other two cranes.  (App. supp. R4, tab 133; R4, tab 76 at 117277)   
 
39.  Also on December 15, 2015, Canatal sent an email to Cutter asking about 
the FAA Building Permit (R4, tab 76 at 117277).  From the record, this appears to be 
the first time Canatal asked Cutter about the Building Permit. 
 
40.  On December 18, 2015, the government requested the FAA approve what 
the government called a Building Permit, or what the FAA called a Construction 
Permit under a Notice of Proposed Construction or Alteration. (app. supp. R4, 
tab 134). 
 
41.  On January 13, 2016, Cutter’s Quality Control Manager sent an email to 
Canatal asking if Canatal submitted all the steel fabrication packages that it planned to 
and if any more would follow for “these Spec sections” (R4, tab 77 at 142706).  
Canatal answered on the same day that it had submitted for the first time everything 
that needed to be for the first building and were working on the resubmittal of the first 
package; however, it needed RFIs 18, 19, and 20 to be answered (id. at 142705-06).  
On January 15, 2016, Canatal sent an email to Mr. Dwyer, Cutter’s CEO, and copied 
three other Cutter employees and a Canatal employee, informing them that it received 
“approval of the shop drawings for division 1 thru 3” but received minor comments 
and asked for confirmation that Canatal could start fabrication (id. at 142705).  That 

13 
 
same day, Mr. Dwyer asked for the comments so he could review them and respond 
(id. 142704-05).  Also that same day, Cutter’s Project Manager informed Canatal and 
Mr.  Dwyer that he had no problem starting fabrication but that the submittal was not 
yet approved and would need to be submitted for approval (id. at 142704).  On 
January 19. 2015, Mr. Dwyer directed Canatal to proceed with fabrication in 
accordance with the shop drawing comments and that Canatal would need to resubmit 
the drawings for approval (id. at 142703-04).  On January 26, 2016, Mr. Dwyer asked 
Canatal to advise him about the schedule for fabrication, erection, and shop drawing 
resubmittals (id. at 142703).  On January 27, 2016, Canatal responded that 
resubmission of batch number 1 would be that day and sequence 1 would be released 
in fabrication the following day (id. at 142703).  Canatal also stated that it scheduled 
erection to start on March 14, 2016 (id.).  Also on January 27, 2016, Canatal informed 
Cutter that the second approval for batch number 1 was posted (R4, tab 78 at 19720-
21). 
 
42.  On February 1, 2016, the FAA contacted the government to ask if the cranes 
would be higher than 125 feet and, if so, how much higher (app. supp. R4, tab 137 
at 2928-29).  The contract specialist forwarded the email requesting the crane height to 
Cutter that same day (id. at 2927-28).  This indicated that neither Canatal nor Cutter 
informed the FAA of all of the crane heights as the FAA asked in November 2015. 
 
43.  On February 3, 2016, the FAA approved the Permanent Construction 
Notice of Proposed Construction or Alteration for Construction, referenced by the 
parties as the Building Permit (app. supp. R4, tabs 134, 187). 
 
44.  On February 3, 2016, the FAA released a DETERMINATION OF 
HAZARD TO AIR NAVIGATION regarding the Crane Permit to erect steel 
at Building 253 (app. supp. R4, tab 135). 
 
45.  On February 4, 2016, Cutter’s crane contractor sent an email to Cutter’s 
Project Manager stating that he filled out the FAA form to propose closing down the 
VOR, projected to begin on March 14, 2016 (app. supp. R4, tab 137 at 2924-25). 
 
46.  On February 25, 2016, Cutter’s Project Manager sent an email to the FAA 
inquiring about the status of the Crane Permit and the VOR shut-down (id. at 2924).   
On the same day and in response, the FAA personnel responded and confirmed that 
the requested date should not be a problem.  Also on February 25, 2016, Cutter’s 
Project Manager sent an email to the Canatal personnel, management for Cutter, and 
the government including a string of emails from the FAA that demonstrated that the 
VOR shutdown was on schedule to start on March 14, 2016.  (Id. at 2922) 
  

14 
 
 C.  Submittals, Initial Letter of Delay, and Modification No . P00001 
 
47.  Between December 2015 and March 2016, appellant filed submittals 48, 
58-59, 48.1, 58.1, 59.1-59.2 (these were all, or almost all, shop drawings).  The 
government rejected all of these and required resubmissions.  (Cutter Stipulated 
Findings of Fact Nos. 122-29)  
 
48.  On March 11, 2016, appellant submitted its first letter of delay to the 
government.  Cutter explained 17 different categories of delay:  1) Projectmates
1 
training; 2) Submittal Register/Log; 3) Preliminary 90 Day Schedule; 4) Foreign 
Object Damage (FOD) or Temporary fencing; 5) Free Zone Letter; 6) Schedule of 
Values; 7) Baseline critical path method (CPM) Schedule; 8) Stormwater Pollution 
Prevention Plan; 9) LEED Submittals; 10) Silt Fence and Temporary Fence related to 
snow removal; 11) Permanent/Temporary Structure FAA Permits; 12) Concrete Mix 
Designs; 13) Scattered Submittal Requirements Throughout Specifications; 14) 
Varying levels of reviews and approvals of submittals; 15) FOD/Temporary Fence and 
Control Technologies; and 17) Re-issued plans and Specifications in Amendment 007 
During Solicitation (R4, tab 13 at 1-7).  Additionally, Cutter complained about “the 
questionable actions” of the Contracting Officer’s Technical Representative (COTR) 
and the A&E representative (id. at 7-8).  Cutter requested that the government remove 
the COTR due to safety concerns (id. at 8).   
 
49.  On March 25, 2016, Cutter notified the government, “The column pier 
at 12’ is in very bad shape” and that it needed “immediate attention.”  (App. supp. R4, 
tab 140 at 2940) 
 
50.  On April 18, 2016, Cutter provided a response to the government’s request 
for proposal to provide temporary shoring for column 12’D for an amount of $61,953 
to cover six months of shoring (app. supp R4, tab 141 at 2946).  The scope of the 
proposal included 
 
 
1 Projectmates was the project management software used in the contract and was used 
by the parties to communicate about the project.  See, e.g., tr. 1/84-85 
(questioning whether reports were uploaded “to Projectmates, to the project 
management software”), 119 (discussing requests for information submitted in 
the system), 201 (referencing a discussion forum), 211 (approving a proposal in 
the system), 220 (discussing a change).  Projectmates is “a comprehensive 
record of what’s occurred in the project” and contains the bulk of the project 
record for the subject contract, all project submittals, all requests for 
information, test reports, and all documents (tr. 4/155).  “There’s a discussion 
board forum which was initially used but that later transitioned to primarily an 
email back and forth to resolve certain issues” (id.).  

15 
 
providing PE stamped shoring drawings, erect, dismantle, 
scaffold rental and trucking for four shoring towers.  Two 
towers will be erected to support the mezzanine deck and 
two towers will be erected to support column.  Bearing 
tabs will be provided and welded to the column for beam 
supports.  Soil bearing surfaces will be prepped by the site 
contractor.  Daily competent person inspections will be 
performed by ARC Safety. 
 
(Id. at 2945)  The response included a rental rate of $28.12 per day (id.). 
 
51.  On April 26, 2016, Cutter submitted a second proposal for three months of 
shoring instead of six months.  The scope of the work remained the same as the 
April 18, 2016 proposal.  As with the proposal for six months, this proposal included a 
statement that schedule modification and further rental duration would “be addressed 
in the subsequent [change order] for the repair of the column footing and pier.”  The 
cost proposed was $39,556.  (App. supp. R4, tab 190 at 3914-15) 
 
52.  On May 20, 2016, the CO issued bilateral Modification No. P00001, 
concerning Hangar 253 and adding $39,556 “to provide temporary shoring and coring 
samples at column 12’D’ to stabilize failing column pier and add clause 252.204-7012 
(dev)” (R4, tab 14 at 1 (emphasis added)).  It also corrected the delivery date to reflect 
900 days from the notice to proceed rather than from contract award.  The corrected 
due date of February 3, 2018, was listed.  The modification included additional 
descriptive language in Contract Line Item Number (CLIN) 0013AA, directing that 
appellant was to:  
 
provide temporary shoring at Column 12’D’ to stabilize 
the current structure and provide structural support during 
existing column pier and footing repair/replacement for a 
period of three (3) months.  Take two (2), 4” core samples 
of the pier and footing, and provide compressive strength 
tests of core samples.  Provide alkali silica reactivity tests 
of the core samples per ASTM 1260, and chloride ion 
content test per ASTM C1543. 
 
(Id. at 3)  The modification also contained a release clause, which stated, “In 
consideration of the modification agreed to herein as complete equitable adjustments 
for the [c]ontractor’s proposal for shoring of column 12’D’, the [c]ontractor hereby 
releases the [g]overnment from any and all liability under this contract for further 
equitable adjustments attributable to such facts or circumstances giving rise to the 
proposal for adjustment” (id.at 1). 
 

16 
 
53.  On May 23, 2016, Cutter signed Modification No. P00001 (R4, tab 14 
at 1). 
 
54.  On June 7, 2016, Cutter noted in Progress Meeting Notes that Cutter had 
“approximately one month left of work that can be done around Col 12’D’ before it 
will result in work stoppage” (app. supp. R4, tab 193 at 3932, 3937). 
 
55.  On June 10, 2016, the CO responded to Cutter’s letter of delay.  The CO 
responded to each of the 17 issues as well as the issues with the COTR and A&E 
representative.  (R4, tab 15 at 1-4)  In some instances, the CO requested more 
information if Cutter wanted to further pursue discussions (id. at 4).  The CO 
concluded, “At this time, based on the facts presented in Cutter’s letter dated 
11 Mar 16, the Government does not agree that any additional compensation or 
extension of time is owed to Cutter due to Government delay” (id.). 
 
D.  The Government’s Second Letter of Concern and Modification  
      Nos. P00002-00004 
 
56.  On July 1, 2016, the CO sent another letter of concern to Cutter.  This letter 
detailed several issues that fell into three categories and the CO required corrective 
actions and a plan to rectify those three categories of:  1) the lack of quality control; 
2) the lack of adherence to specifications; and 3) the lack of timeliness of 
administrative actions.  The CO stated that quality control issues existed both in 
administrative reviews of submittals and the overall quality control of the project and 
then included examples of specific project quality control issues: electrical underslab 
conduit not being spaced or supported properly; underslab conduit hit in Building 254; 
I-beam structural steel misalignment; vertical rebar missing; L-bars missing; and 
interior curb wall problems.  The CO stated that many of the issues listed for quality 
control also concerned the lack of adherence to specifications.  (R4, tab 17 at 1-2) 
 
a.  The electrical under slab conduit was not spaced or supported properly in 
the nose dock area where heavy tugs and aircraft nose gear would pass.  This was 
noted by the government as a deficiency item on May 17, 2016, and was still pending 
at the time of the letter.  (Id. at 1) 
 
b.  The underslab conduit hit in Building 254 concerned a June 2, 2016 conduit 
hit which “seized all power” to the paint booth shop and disrupted the fire alarm 
system.  This happened before coordination with the government prior to saw cutting 
commencement.  (Id.) 
 
c.  The I-beam structural steel misalignment was identified on April 5, 2016, 
by Cutter’s third-party quality control inspector but was not uploaded into 

17 
 
Projectmates until May 17, 2016.  It was not brought to the government’s attention in a 
timely manner.  (Id. at 1-2) 
 
d.  The government COR identified the missing vertical rebar at the sides of 
control joints.  While Cutter fixed the issue in a timely manner, it was brought to 
appellant’s attention by the government.  (Id. at 2) 
 
e.  The L-bars were identified as missing in an already-poured stem wall.  
It was identified by the government COR and was not yet corrected.  (Id.) 
 
f.  The government and A&E contractor representative discovered that 4,000 
PSI concrete had been incorrectly used at all interior cub walls.  This should have been 
5,000 PSI per the specifications.  (Id.) 
 
g.  The CO stated, “When discrepancies are identified, in most instances, rather 
than correcting and complying with the specifications, the Government and the A&E 
team have spent many additional hours researching and analyzing if the alternative 
approaches/methods of Cutter’s installation or construction meet the same intent as 
what was written in the original specification” (R4, tab 17 at 2).  The CO explained 
that this should only be the process if “the specification may be interpreted in two 
different ways” but instead the CO opined that Cutter instead used alternate 
approaches to avoid following the specifications, using Request for Information (RFI) 
147 as an example (id.).  Regarding the third category of concern, timeliness, the CO 
stated, “RFIs are not submitted timely or not submitted at all which creates the 
common occurrence of deviations from the plans and specifications” and provided 
examples (R4, tab 17 at 4).  
 
h.  The CO directed Cutter to respond “with the courses of action Cutter will 
take to correct the deficiencies identified” and informed Cutter that the government 
would retain 10% of the monthly progress payments (R4, tab 17 at 4). 
 
57.  On July 14, 2016, Cutter responded to the letter of concern.  Cutter 
objected to the government “cast[ing] blame” on Cutter “for issues that Cutter does not 
bear responsibility.”  (R4, tab 18 at 1)  Cutter responded to each of the concerns in its  
seven-page response.  Regarding quality control, Cutter stated that many of the issues 
raised by the government were due to poor design documents and “the inexperience of 
the Contracting Officer’s Technical Representative with this type and magnitude of 
construction, not quality control.”  (Id.)  Cutter explained that the quality control 
examples were all fixed by summarizing what happened for each one.  Cutter also 
stated its disagreement with the government’s characterizations regarding adhering to 
the specifications and timelines in administrative tasks (R4, tab 18 at 4-5). 
 

18 
 
58.  In its July 14, 2016 response to the letter of concern, Cutter described its 
proposed plan in two paragraphs.   
 
First, Cutter discussed that it would implement the Army 
Corps of Engineers’ Three Phases of Control in the Quality 
Control Program which it stated would address design 
coordination issues prior to construction “instead of after 
installation of work.”  Cutter suggested that any unresolved 
questions from any preparatory meetings would result in 
Cutter submitting an RFI and no work would commence 
until a resolution was determined.  Cutter stated, “With the 
Government’s representatives taking an active role in the 
preparatory meetings there should be no instances where 
follow-on inspections by the design team result in 
discoveries of apparent deviations from the contract 
documents.”  (R4, tab 18 at 6)   
 
 In its second paragraph, Cutter shifted the burden to the government, stating that 
it would submit change orders and RFIs as quickly as the Government could provide 
more clear scopes of work, “complete[] reviews for requests that need revision and 
provide[] required information and responses” (id.).  Cutter closed with disagreement 
over an interim performance report and the 10% retainage (R4, tab 18 at 7). 
 
59.  On August 5, 2016, the CO executed unilateral Modification No. P00002 to 
Cutter under FAR 52.243-4, CHANGES (JUN 2007).  The purpose of the 
modification was “for Change Orders 253.007, Removal of ACM at Fascia at A’ 
between 8’ & 9’; and 253.009, ACM Mezzanine Hangar door, Under Ground 
Hydronic Pipe and Window.”  The total amount of increase was $17,533.79.  Bond 
increase and consent of the surety was required.  The modification added seven days to 
the contract period of performance, changing the delivery date from February 3, 2018, 
to February 10, 2018.  The modification did not contain a release of claims.  (R4, 
tab 19 at 1)   
 
60.  On August 12, 2016, the CO executed unilateral Modification No. P00003 
to Cutter under FAR 52.243-4, CHANGES (JUNE 2007).  This modification 
incorporated “Change Order 253.018, Grade Beam Additional Demolition.”  Bond 
increase and consent of the surety was required.  The modification added CLIN 
0013AD in the amount of $30,605.45 and added five days to the delivery schedule, 
making the delivery date February 15, 2018.  The modification did not contain a 
release of claims.  (R4, tab 20 at 1)  
 
61.  On August 23, 2016, the CO issued bilateral Modification No. P00004 
under FAR 52.243-4, CHANGES (JUN 2007).  This modification incorporated change 

19 
 
orders “253.003-Water & Sewer piping, 253.008-ACM at exterior wall, 253.010-Silt 
fence, 253.014-Wall Packs, 253.016-Receptacles, 253.017-VFDs for Fans, 253.020-
Emergency Shoring, and 254.002-Water & Sewer piping.”  (R4, tab 21 at 1)  The 
modification added CLIN 0013AE for all of the change orders for Building 253, which 
increased the amount of the contract by $36,132.46.  The modification also added 
CLIN 0014AA for the Hangar 254 item, which increased the amount of the contract by 
an additional $1,504.00, for a total increase of $37,636.46.  Thus, the additional CLINs 
added by this modification increased the total contract price to $31,720,031.70.  The 
delivery date remained the same.  Bond increase and consent of the surety was 
required.  The modification included the language, “In consideration of the 
modification agreed to herein as complete equitable adjustments for the contractor’s 
proposal for adjustment for aforementioned change orders the contractor hereby 
releases the [g]overnment from any and all liability under this contract for further 
equitable adjustments.”  (Id.) 
 
62.  On August 29, 2016, Cutter signed Modification No. P00004 (id.). 
 
E.  Appellant’s Schedule Status Letter 
 
63.  On August 29, 2016, Cutter’s CEO, Mr. Dwyer, sent a schedule status 
letter to the CO (R4, tab 222). 
 
64.  First, Mr. Dwyer outlined the contractually-required schedule 
documentation and the need to use more than the method that was required in the 
contract to document the schedule.  He used this section to explain various ways to 
determine amount complete as well as the difference between his estimate of project 
completion (16.8%) and the government’s estimates of project completion (4.08%) 
and why those differences existed.  (R4, tab 22 at 1-3)  Mr. Dwyer included 
documentation to demonstrate his calculations.  (R4, tab 22 at 10-287)  He disagreed 
with exclusively using the CPM schedule, as he discussed limitations with solely using 
the CPM schedule, ran what he called “fictitious” schedules imagining if everything 
had been performed without alleged government delays, and was overall critical of the 
contractually-required schedule (R4, tab 22 at 3).  The contract should have been at 
least 42% complete by that point in time according to the fictitious schedule (R4, 
tab 22 at 2).  
 
 
2 This is also in appellant’s Rule 4 File at 204.  For ease of reading the Decision and as 
discussed at the hearing, the Board will only reference the government Rule 4 
File submissions rather than citing to the duplicated Rule 4 File submissions.  
However, the Board did not realize the duplicated Rule 4 File submissions until 
partway through the hearing so some of the documents were referred to in the 
Record of Hearing as appellant’s numbering system. 

20 
 
65.  Second, Mr. Dwyer discussed quality control concerns.  Mr. Dwyer stated 
that he understood the government’s concern with Cutter’s third-party special 
inspection laboratory, stating that Cutter was “addressing the clarity of their reporting 
as well as the attention to detail in the field related to their inspections.”  (R4, tab 22 
at 3)  The letter also stated, “Additionally, we are also addressing our internal concerns 
with our ready mix concrete supplier regarding the timeliness of concrete deliveries as 
well as batching the incorrect mix in the trucks for one of our concrete pours recently” 
(id.).  Further, he stated, “we have consistently maintained that the COR personnel on 
the project have not adhered to the Quality Assurance aspects of their responsibilities 
in performance of this contract” and requested that the government’s COR and A&E 
personnel include Cutter’s Quality Control Manager when conducting inspections, in 
order to reduce issues between the parties (id. at 3-4, 7) 
 
66.  Third, Mr. Dwyer discussed RFI submissions, stating that over 270 bid 
phase RFIs and almost 300 RFIs during performance demonstrated that the contract 
requirements were not clear.  He also expected more RFIs.  “Considering that we are 
only 21% through the total contract, we can anticipate substantially more RFIs being 
required.”  (Id.at 4) 
 
67.  Fourth, Mr. Dwyer stated that a communication and trust issue existed 
between Cutter and NHANG and asserted that he would personally be more involved 
in the project going forward.  Cutter again attempted to shift the burden to the 
government.  Mr. Dwyer outlined the distrust with the COR’s inability to make “field 
decisions on the numerous issues with the contract documents that plague the project . 
. . .”  (Id.)  He further requested that experienced government personnel be present on 
site and that the A&E firm personnel be readily available for teleconferences when 
required (id. at 5). 
 
68.  Fifth, Mr. Dwyer listed eleven “Action Items” that were causing delays in 
the project and suggested resolutions, including:  1) fire protection system design; 
2) simplex fire alarm/mass notification system; 3) Building 254 EPDM roof versus 
electrical conduits; 4) Building 253 duct bank clearance at new transformer; 5) 
security and vetting of contractor personnel; 6) a request for an experienced 
government person be assigned to the project for quicker resolution of issues; 7) a 
request to include the Cutter Quality Control Manager in all inspections going forward 
so that deficiencies can be corrected more quickly; 8) Building 253 insulated metal 
wall panels (requesting that the submittal Cutter submitted be reviewed quickly); 9) 
Building 253 existing to remain slabs; 10) a lack of revit/autocad files; and 11) failure 
of existing column 12’D’.  Mr. Dwyer repeatedly mentioned the design deficiencies 
and differing site conditions, suggesting actions the government had to take to correct 
the designs.  (Id. at 5-8)  Mr. Dwyer closed by stating that he believed, after meeting 
and conversations with the government, that the design lacked clarity and the omission 
in the documents related to the existing concrete grade beam posed a serious impact to 

21 
 
the schedule.  Mr. Dwyer stated he elected to move forward with completely removing 
this grade beam to be able to warranty that the concrete floors, trench drains, and 
jacking slabs would perform as they should.  Mr. Dwyer stated this was an added cost 
to Cutter, but the only way he could warrant the work and put the project back on 
schedule.  (Id. at 9) 
 
69.  On October 17, 2016, Cutter submitted a cost proposal for permanent 
repairs to Column 12’D’ in the amount of $653,978 with a contract extension of 194 
days (app. supp. R4, tab 148 at 2999-3001). 
 
F.  The Contracting Officer’s Cure Notice 
 
70.  On October 26, 2016, the CO issued a cure notice to Cutter.  The CO 
warned, “The [g]overnment considers your firm’s lack of compliance with the subject 
contract’s requirements and adherence to plans and specifications as listed below, to 
be a condition that is endangering performance of the contract.”  (R4, tab 23 at 1)  The 
CO stated that there had been “very few subcontractors performing work on the job 
site, and the [g]overnment ha[d] observed the workers, who are on the job site, leaving 
for the day at 1500 hours and working only half days on Fridays, despite the fact that 
your firm is behind schedule” (id. at 1-2).  The items that the CO categorized as “listed 
below” included: CPM schedule delays (should have been 42% complete but was only 
20% complete); grade beam schedule delay (referencing drawings SD-101 and SD-
501); deficient installation of electrical conduit underslab Building 253; recurring 
deficient installation of electrical conduit underslab Building 253 required in 
specification section 260543; conduit severed in Building 254 which was the second 
underslab conduit hit and impacted the paint booth and the fire alarm system; I-Beam 
structural steel; vertical rebar missing; L-Bars missing; and interior curb walls using 
4,000 PSI instead of 5,000 PSI concrete.  The CO explained in detail why each of 
these areas were problematic.  (Id. at 1-13)  At the end of the cure notice, the CO 
stated,  
 
The Government is entitled to work that strictly adheres to 
the Contract plans and specifications.  Notwithstanding, 
while each deviation described throughout this Cure Notice 
Letter [may] not solely affect the structural integrity of the 
building, the culmination of each deviation from the 
contract plans and specifications creates more undue risk 
that will undoubtedly have substantial impact on the 
structure integrity and/or the useful life of the building. 
  
(Id. at 13)  The CO requested a plan to cure Cutter’s failures and stated that Cutter 
must, at a minimum address three items:  1) specific remedial measures to address the 
issues; 2) interim milestones for curing the deficiencies and expected dates of 

22 
 
completion; and 3) descriptions of corrective actions taken to prevent future failures in 
quality control.  (Id. at 14-15) 
 
 Specifically regarding the grade beam, the CO wrote that after receiving 
Cutter’s December 2015 request, RFI 253.015, to modify the requirements at no cost, 
the government agreed that the change was “acceptable” (id. at 2).  After receiving 
Cutter’s January 2016 request, RFI 253.038, to further modify the requirements for the 
grade beam to completely remove the existing grade beam, the CO again stated the 
change was acceptable “and also that the acceptance be contingent upon no additional 
cost to the Government” (id. at 2).  After receiving Cutter’s March 2016 request, RFI 
253.101, to modify the requirements for the grade beam for additional demolition, the 
government determined that removing the top eight inches of grade beam was 
appropriate and that “additional drawings and compensation would be given for 
demolition that was not captured in the drawing SD-101 to include greater demolition 
depth to accommodate trench drains and jack pads” (id. at 3).  On July 1, 2016, Cutter 
submitted a cost estimate proposal for complete removal of the grade beam, 98 days 
after the government responded to RFI 101 (id. at 3).  The CO issued Modification 
No. P00003 in August 2016 and again stated the work was “at the contractor’s 
convenience and at no additional cost to the Government” (id. at 2-3).  In September 
2016, the government reviewed the grade beam removal with Mr. Dwyer and “from 
the additional review found that portions of the grade beam can effectively be removed 
as shown on S-SK-06 & S-SK-07 without causing cracking in the finished concrete 
floor and overlaying epoxy finish” (id. at 4-5).  Thus, the CO informed Cutter that an 
additional modification would be forthcoming to remove the note that said complete 
removal of the grade beam was acceptable from CLIN 0013AB and insist Cutter 
comply with the contract specifications (id. at 5). 
 
71.  On November 4, 2016, Cutter responded to the CO’s cure notice.  Cutter 
explained that it was not in default and disagreed with the statement that Cutter had 
failed to comply with contract requirements or adhere to the drawings and 
specifications.  While Cutter admitted to being behind schedule, Cutter disputed that it 
was the sole cause of delays (R4, tab 24 at 1).  Cutter explained how the government, 
in its opinion, had also caused delay, including failing to provide information to 
Cutter, delays in government responses, and the government’s failure to address 
problems with the specification (id. at 1-4).  Cutter argued that the FOD fence caused 
delay because “The Government over-scrutinized the temporary fence system” and 
caused it to incur additional unnecessary costs (id. at 2).  Cutter argued that the trench 
drains had a discrepancy in the requirements where the specifications called for 
modular trench drains and the drawings called for cast in place trench drains, so the 
government allowed Cutter to choose.  Cutter explained that it chose the modular 
trench drain and the A&E contractor was requiring Cutter to install rebar around it.  
Cutter refused to move forward with the trench drain as a result.  (Id. at 3)  Cutter 

23 
 
further explained that all of its work complied with the contract plans and 
specifications and that any deficiencies were resolved (id. at 4-6).  
 
72.  Cutter further explained that the Building 253 insulated metal wall panels 
had a design conflict between structural and architectural drawings, where the two 
drawings depicted different sized openings.  Cutter submitted a request for information 
and the government, through the A&E firm, responded with a revised design.  “Cutter 
responded with an alternative solution.  The Government agrees with Cutter’s 
proposed alternative solution.”  Cutter added that it was in the process of pricing a 
construction change order request (CCOR) for submission.  (Id. at 3) 
 
73.  Regarding grade beam schedule delays, Cutter alleged the government was 
responsible for the delays, not Cutter.  Cutter claimed it could not install jacking pads 
in the hangar due to clearance conflicts and the contract requirement to remove eight 
inches from the top of the grade beams would impact the integrity of the slab and 
epoxy flooring system.  While Cutter proposed removing the entire beam, Cutter 
included in the cure notice response that it did not agree to do so at no cost or no time.  
(Id. at 3-4)  The government continued to direct Cutter to follow the specifications but 
Cutter “kept pressing the issue to deliver a better end product to the [g]overnment” (id. 
at 4).  Cutter wrote that it “knew from years of experience in construction that the 
original plan to remove the top 8” of grade beam would impact the integrity of the slab 
and floor system” (id.).  
 
74.  As Cutter noted in its cure notice response, three RFIs addressed the grade 
beam (id. at 3).
3  Although Cutter claimed it “never advised the [g]overnment that this 
work would be no cost or no time” (R4, tab 24 at 3), in RFI 15, under the “Cost 
Change” category, Cutter stated “Cost Increase of US $0.00” and under the “Time 
Change” category, Cutter stated “Increase of 0 days” (R4, tab 73 RFI Bldg 253 
SCZQ139901 – 015 at 1).  In RFI 38, in the “Cost Change” category, Cutter included 
“Yes, may be” and in the “Time Change” category, Cutter included “Increase of 
0 days” (R4, tab 73 RFI Bldg 253 SCZQ139901 – 038 at 1).  Further, in response, the 
government directed Cutter to the specific location of requirements in the 
specifications but allowed Cutter to make the changes it requested (id. at 2).  The 
government closed the comment with “This proposed solution is not expected to 
increase the construction cost” (id. at 2).  In RFI 101, Cutter stated “Yes, may be” in 
both the “Cost Change” and “Time Change” categories (R4, tab 73 RFI Bldg 253 
SCZQ139901 – 101 at 1).   
 
 
3 While Cutter cited RFIs 15, 28, and 101, the RFIs are actually 15, 38, and 101 (R4, 
tab 73 RFI Bldg 253 SCZQ139901 – 015 (submitted December 2015), RFI 
Bldg 253 SCZQ139901 – 038 (submitted January 2016), RFI Bldg 253 
SCZQ139901 – 101 (submitted March 2016).   

24 
 
 In its response to the CO’s requirement in the cure notice for a remedial plan, 
Cutter stated that it has already addressed the deficiencies the government presented 
and that there were only two open items: the interior curb wall analysis and issues with 
quality control.  Regarding the interior curb wall analysis, Cutter stated that it was 
awaiting the results of the structural engineer’s review.  Regarding the quality control, 
Cutter stated that while it believed it was already providing “more than adequate” 
quality control, it would supplement the site personnel with an additional quality 
control team member.  (R4, tab 24 at 6-7)  We find that Cutter failed to provide a 
remedial plan, the first requirement in the CO’s direction and failed to address how it 
would prevent such failures from happening in the future, the third requirement in the 
CO’s direction in the cure notice. 
 
75.  In its cure notice response, Cutter acknowledged the delay and stated, 
“Cutter believes the schedule impacts are due to design conflicts and changes, 
unforeseen conditions, and delayed responses by the [g]overnment” (id. at 7).  
Appellant stated, “Cutter is committed to a recovery schedule and mitigating further 
delays” but failed to provide such a schedule or mitigation plan (id.).  Instead of 
presenting any proposed course of action, Cutter requested a meeting with the 
government and design team to discuss how to get back on track (id.).  We find that 
Cutter failed to submit any plan to remedy the schedule delays and did not provide any 
interim schedules or completion dates. 
 
76.  On November 4, 2016, Cutter submitted a cost proposal for repairs to the 
footing and pier at Column 12’D’ for $256,460 and 74 calendar days.  It also stated 
that Cutter reserved the right to request additional time and compensation as a result of 
time impacts caused by the column repair and that a Request for Equitable Adjustment 
was pending submission.  Cutter included that the critical path of the schedule was 
significantly impacted by the column issues, stating that it caused work stoppage in 
seven areas and that additional time and costs would be submitted once Cutter could 
quantify those.  (App. supp. R4, tab 151 at 3053-55) 
 
77.  On November 10, 2016, the CO unilaterally executed Modification  
No. P00005 under FAR 52.243-4, CHANGES (JUN 2007).  This modification 
incorporated the changes in change order 253.024, Column 12’D’ repair.  It added 
CLIN 0013AF and increased the contract amount by $77,859.  It also extended the 
period of performance by 21 days, making the delivery date March 8, 2018.  Bond 
increase and consent of the surety was required for the modification.  The modification 
did not contain a release of claims.  (R4, tab 25)   
 

25 
 
G.  Appellant’s Delay Notices to the Government 
 
78.  On November 13, 2016, Cutter submitted its first request for equitable 
adjustment (REA), that was effectively a certified claim,4 requesting a compensable 
extension of time of 223 days and an increase of $1,125,266.20 in the cost of the 
contract.  According to Cutter, the reason for this request was “Government caused 
issues” that included “temporary construction fencing design issues, FAA permit 
delays, fire pump design revisions, fire alarm sole source vendor change, existing 
grade beam demolition design revisions, column 12D shoring and repairs, and 
unforeseen site conditions encountered while performing demolition for under slab 
electrical conduits.”  (R4, tab 26 at 14 (time impact analysis prepared by RECON 
International)) 
 
 Concerning the fire alarm sole source vendor change, Cutter claimed 149 days 
of delay at the beginning of the section and 197 days of delay at the end of the section 
without explanation (id. at 9-10).  This was due to the sole source manufacturer 
changing from Simplex to Monaco Enterprises (id.).  The solicitation documents 
required “specified Simplex Fire Alarm Components” (id. at 9).  Cutter issued a 
submittal on February 23, 2016, for the system (R4, tab 26 at 144-46).  On March 23, 
2016, the government rejected it, stating, “Submittal not reviewed by A&E per 
direction of contracting since it will change based on the pending design change that is 
not yet awarded.”  (Id. at 9, 146)  On June 10, 2016, the government changed the sole 
source vendor to Monaco System via CCOR 253-011 (id. at 9-10, 147).  Cutter alleged 
that it repeatedly requested a point of contact for Monaco until August 23, 2016, so it 
was unable to secure a cost proposal for the system (id. at 10).  On October 5, 2016, 
Cutter provided a cost proposal for the Fire Alarm/Mass Notification System 
(FAMNS) to provide and install the Monaco system which included adding an 
unknown number of days to the project and cost $81,626.  (Id. at 10, 148-50)  Cutter 
noted this delay was concurrent with the underslab conduit delay, the column shoring 
delay, and the grade beam demolition delay (id. at 10). 
 
79.  On November 17, 2016, Cutter sent the government a second letter 
concerning the cure notice.  In it, Cutter explained that at the time of its cure notice 
response, two items were still open.  Regarding the I-Beam structural steel issues, 
Cutter stated that the five outstanding issues were resolved but not documented so 
 
4 Cutter used “Request for Equitable Adjustment” in the subject of the letter but the 
contents of the letter, including a sum certain and certification, and a demand 
for a CO’s final decision (see R4, tab 26) support our finding this to be a 
certified claim.  See Hejran Hejrat Co. v. United States Army Corps of 
Engineers, 930 F.3d 1354, 1357-58 (Fed. Cir. 2019).  Thus, for clarity, we refer 
to the letter as “the November 13, 2016 certified claim” throughout this 
Decision. 

26 
 
Cutter uploaded the information to Projectmates, which fully resolved the issues.  
Regarding the interior curb wall concrete report, Cutter explained that it had hired 
Davey Associates, Inc., to evaluate the compressive strength of the wall and provide a 
report of findings.  This report was completed on November 7, 2016 and uploaded to 
Projectmates on November 17, 2016.  Finally, Cutter again addressed the quality 
control personnel and said it intended to supplement on site personnel with an 
additional quality control team member.  (R4, tab 27 at 1-2)  Specifically, Cutter stated 
it engaged a recruiter and “Cutter is committed to attempting to bring another team 
member on board by the end of the year” (id.at 2). 
 
80.  On November 23, 2016, Cutter sent a notice of delay and intent to request 
additional time and compensation to the CO.  Cutter explained that more delays 
occurred since October 1, 2016.  Specific delays included a dimension conflict 
concerning translucent fiberglass wall panels and contaminated settled dust on the 
existing structure that indicated asbestos and numerous heavy metals.  Cutter included 
the report, dated September 22, 2016, with the letter.  (R4, tab 28 at 1-2, 4, 6-8) 
 
81.  Specifically regarding the contaminated dust, Cutter recommended that the 
dust be removed by a licensed asbestos and lead contractor after testing demonstrated 
asbestos and other heavy metals.  The dust impacted “install[ing] beam clamps for 
suspended piping and equipment, welding of modified structural elements, and various 
other items connected to the existing structure” as well as painting (id. at 2).  Cutter 
wrote, “This remediation work cannot be completed by a non-licensed asbestos 
worker, and must be performed in an isolated environment with the necessary controls 
and air monitoring per OSHA regulations” and warned that it had the potential to 
negatively impact the schedule (id.).  Cutter requested the government provide 
direction on how to proceed (id.).  On November 30, 2016, Cutter requested that the 
CO release all retainage currently being withheld on prior Cutter invoices and cease 
retaining money on future invoices.  Cutter stated that there was no basis to withhold 
the retainage because all of the cure notice items were addressed.  (R4, tab 29) 
 
82.  On December 15, 2016, Cutter sent a letter to the CO requesting a 
suspension of work order or stop work order on “certain aspects of the [p]roject” 
discussed in the letter to allow the government to resolve the issues for which Cutter 
previously notified the government (R4, tab 30 at 1).  Specifically, Cutter remained 
concerned about the column 12’D’ failure in Building 253, the fire alarm sole source 
vendor change, the fire pump delay, the dimension conflict concerning translucent 
fiberglass wall panels, contaminated settled dust on the existing structure, and hangar 
bay floor slabs and trench drains.  Cutter listed the portions of the contract that it could 
continue working on if the government did not suspend performance of the contract.  
(R4, tab 30 at 1-4) 
 

27 
 
 Concerning the contaminated dust, Cutter stated that it discovered the dust 
during the week of September 15, 2016, and directed its environmental consultant to 
conduct tests.  Cutter also wrote that it informed the government and provided the test 
results on November 23, 2016.  Cutter again noted that remediation work needed to be 
completed by an expert and wrote that the government had not responded or 
acknowledged the issue.  (R4, tab 30 at 3)  We take judicial notice that the amount of 
time between September 15, 2016, and November 23, 2016, was 69 days.  We also 
find that Cutter did not do anything to mitigate the contamination issue during the over 
two months it took to notify the government or at any time prior to termination, other 
than have an environmental consultant conduct tests. 
 
83.  On December 23, 2016, Cutter sent the CO another letter concerning 
government delays.  These delays concerned column 12’D’ shoring costs and an 
increased rental period, fire water standpipe break, withholding of payment, fire 
protection coordination drawings, and grade beam work.  (R4, tab 31 at 1-4) 
 
III.  The Termination For Default 
 
84.  On December 29, 2016, the CO sent Cutter a notice of termination for 
default, in which it also responded to Cutter’s delay assertions.  The CO listed three 
reasons for termination:  1) failure to make sufficient progress, which endangered 
performance of the contract; 2) failure to provide adequate assurances that it would 
complete the construction on time; and 3) failure to comply with various contract 
provisions, including FAR 52.236-5, MATERIAL AND WORKMANSHIP (APR 
1984), FAR 52.236-15, SCHEDULES FOR CONSTRUCTION CONTRACTS (APR 
1984), FAR 52.246-12, INSPECTION OF CONSTRUCTION (AUG 1996), and 
Special Contract Requirement 27, Contractor Quality Control.  (R4, tab 32 at 1)  In the 
notice of termination for default, the CO reviewed what had happened on the contract, 
including summarizing the cure notices.  In short, the CO was not convinced that 
Cutter “provided adequate assurance of successful future contract performance,” (R4, 
tab 32 at 15)  Specifically, the CO found that Cutter did not adequately address 
deficiencies stated in the cure notice because:  1) Cutter had several schedule delays 
(id. at 16-36); 2) Cutter’s workmanship was substandard and failed to abide by 
contract plans and specifications (id. at 36); 3) Cutter failed to prosecute the work with 
diligence that would ensure the project’s completion within the period of performance 
specified in the contract (id. at 39); 4) Cutter failed to provide adequate assurances 
(id.); and 5) Cutter failed to comply with several contract provisions and clauses 
(id.(referencing FAR “52.236-5 Material and Workmanship, 52.236-3 Site 
Investigation and Conditions Affecting the Work, 52.246-12 Inspection of 
Construction, and 52.236-15 Schedules for Construction Contracts”)).   
 

28 
 
A.  Failure to Make Sufficient Progress 
 
85.  The CO listed thirteen schedule delay allegations from Cutter and 
described the government’s position on each (R4, tab 32 at 16-36, ¶¶ 1.i through 
1.xiii).  
 
86.  In its general section concerning the reasons for termination, the CO stated 
that Cutter performed the project for 491 days, as of December 21, 2016.  The CO 
stated that the project should have been approximately 47% complete but was only 
23% complete.  The CO stated that the parties appeared to agree on the percentage of 
completion.  However, the CO believed that while Cutter assigned all of the delay to 
the government, the government believed the delays were “almost wholly attributable 
to Cutter.”  (Id. at 16, ¶ 1)  The CO addressed each of Cutter’s delay allegations in its 
termination letter and referenced the parties’ various communications throughout the 
termination letter, demonstrating further notice of the problems and issues prior to 
termination.   
 
87.  The first delay allegation the CO discussed was the untimely responses by 
the government to RFIs submitted in Projectmates.  The CO stated that the average 
response time to RFIs was 12 days, with approximately 122 of them (or 45%) 
responded to in fewer than seven days.  Thus, the CO believed the response time was 
reasonable.  (Id. at 16) 
 
88.  The second delay allegation the CO discussed was that Cutter attributed 
delay due to the untimely issuance of CCORs.  The CO stated that the contract did not 
require the government to issue CCORs and referenced section 012663 of the contract, 
relevant to changes and quoted the Changes Clause and other requirements in the 
contract.  Instead, the CO argued, Cutter did not meet its notice obligations for 
changes, which the CO believed was the reason for delays.  Thus, the CO believed 
delays related to CCORs were Cutter’s fault.  (Id. at 16-17) 
 
89.  The third delay allegation the CO discussed was Cutter’s allegation of 
schedule delays due to conflicting contract documents and design changes.  The CO 
referenced the contract’s affirmative instructions concerning defective specifications in 
section 012663, paragraph 1.1 of the contract.  According to the CO, Cutter did not 
meet its obligations regarding defective specifications under the Changes clause.  (Id. 
at 17-18) 
 
90.  The fourth delay allegation the CO discussed was the unforeseen site 
condition of the deteriorated footing/pier at column 12’D’ in Hangar 253.  According 
to the CO, Cutter discovered the problem on March 25, 2016.  Then, on April 5, 2016, 
the government’s A&E firm provided a sketch to brace the column to prevent 
movement.  The CO stated that Cutter claimed the government was responsible for 

29 
 
153 days of delay for the process to obtain the shoring drawings.  The CO stated that 
the government attributed at least 195 days of delay to Cutter, from April 5, 2016, 
when Cutter received the sketch design, until October 17, 2016, when Cutter provided 
the government with a complete cost proposal.  The CO further stated that the 
government executed bilateral Modification No. P00001 on May 20, 2016, to include 
the shoring and bracing for column 12’D’ and added more work in unilateral 
Modification No. P00005 on November 10, 2016.  According to the CO, work 
resumed in Hangar 253 as early as April 11, 2016, and other critical path construction 
resumed as early as April 7, 2016.  The CO included a timeline chart of the column 
12’D’ issues.  The government believed it provided responses in a reasonable time but 
that Cutter excessively delayed its submissions.  Further, the government was unsure 
which responses Cutter believed the government unreasonably delayed.  Finally, the 
CO opined that Cutter did not follow the contractual notice requirements for a 
government-caused delay.  (R4, tab 32 at 18-22)  Specifically, the CO stated, “Cutter 
has failed to furnish the requisite notice that would have set the predicate for 
Government-caused, or excusable delay” (id. at 22). 
 
91.  The fifth delay allegation the CO discussed was the fire protection system 
design (id. at 22-25).  The CO stated that Cutter provided “very little information” 
about this delay claim (id. at 22).  The CO provided a chart outlining the various 
communications held concerning the fire protection system.  The CO stated that “the 
contracting parties worked together to facilitate the work” but that Cutter stalled this 
work from March 11, 2016, until August 25, 2016, and the government did not receive 
a cost proposal until December 7, 2016.  Thus, the CO attributed 271 days of delay to 
Cutter instead of the government.  (Id. at 25)  
 
92.  The sixth delay allegation the CO discussed was the fire alarm and mass 
notification system.  The CO stated that Cutter claimed 197 calendar days delay for the 
change in the fire alarm company.  The CO believed that at least 116 calendar days 
were delayed by Cutter due to Cutter’s delay in providing a cost proposal.  The CO 
included a chart with the dates and various actions regarding the fire alarm and mass 
notification system.  The CO stated that Cutter failed to include a line item in the 
“prepare and submit” section of the schedule and did not identify this issue on the 
critical path.  The CO stated that Cutter’s failure to adequately explain this delay 
rendered it impossible for the government to determine how much of a delay was 
possibly attributed to the government.  (Id. at 25-26) 
 
93.  The seventh delay allegation the CO discussed was a delay based on the 
grade beam (R4, tab 32 at 26-29).  The CO stated that the record of the project 
demonstrated that Cutter ineffectively prosecuted this work and the government did 
not cause a delay.  The CO included a chart with dates and actions for this issue, 
complete with screenshots of the relevant RFIs.  In its first RFI, submitted on 
December 4, 2015, appellant proposed an increase to the removal width and stated the 

30 
 
change was no cost and no time change to complete the work (id. at 26).  The CO 
accepted the change the same day (id. at 26-27).  In January 2016, appellant proposed 
via RFI the complete removal of the grade beam, stating that there “may be” a cost 
increase but still a time change increase of 0 days (id. at 27).  The government 
concurred in February 2016 but stated the “proposed solution is not expected to 
increase the construction cost” (id.).  In March 2016, appellant submitted another RFI, 
asking if the intent was to install a fill depth foundation and said there may be a cost 
change and a time change (id.).  The government answered the following week (id.).  
On July 1, 2016, Cutter submitted a CCOR with a cost estimate for complete removal 
of the grade beam and requested 53 additional days (id.; app. supp. R4, tab 127 
at 0864-66).  On July 28, 2016, the government rejected the CCOR because of 
unreasonable costs and time extension.  On August 12, 2016, the government issued 
Modification No. P000003 to allow the additional demolition of the grade beam, 
adding $30,605.45 and five days and further allowed for complete removal at 
appellant’s convenience but at no additional cost to the government.  (Id.; see also R4, 
tab 20)  Further, the CO stated that Cutter never informed the government that 
additional time was required, other than an annotation of “Yes, may be” in answer to 
the “time change” category.  The CO stated that this vague note was not enough to 
record a delay.  While Cutter alleged that the government caused 148 calendar days of 
delay, the CO believed that Cutter’s ineffective project management caused the delay.  
The CO believed that Cutter was responsible for 168 days of delay for not prosecuting 
the work.  (Id. at 28-29) 
 
94.  The eighth delay allegation the CO discussed was Cutter’s allegation of 
delay due to the FOD fence.  The CO stated that the plans and specifications required a 
FOD fence at section 024100, Demolition.  The initial fences Cutter submitted did not 
meet the requirements in the contract, according to the CO.  The CO outlined the 
timeline for the FOD fence submittal and responses.  When the FOD fence was 
approved on October 15, 2015, the government provided comments informing 
appellant that it retained liability because this was not an engineered submittal.  Even 
after working with appellant to approve an acceptable fence, according to the CO, 
appellant still deviated from the requirement.  While the fence was required to 
withstand 80 mph winds, weather data demonstrated that 31-45mph winds toppled 
portions of the fence on September 11, 2016.  (R4, tab 32 at 29-32)   
 
95.  The ninth delay allegation the CO discussed was the FAA permits.  Cutter 
alleged that the government did not secure the proper FAA permits to start 
construction, causing a delay.  (Id. at 32) 
 
a.  The CO stated that the government did not cause any 
delay because Cutter was required to obtain all licenses and 
permits to perform the work, pursuant to section 1.4 
Permits, of the solicitation.  The CO agreed that the 

31 
 
government was required to obtain a permit called the 
Notice of Proposed Construction/Alteration of Building 
from the FAA but noted that Cutter was required to obtain 
the permits for the temporary crane. The CO stated that it 
submitted the Notice on December 18, 2015, making it a 
timely request.  The permit request the government 
submitted was approved on February 3, 2016.  (Id. 
at 32-33; see also app. supp. R4, tabs 134, 187) 
 
b.  The CO further explained that Cutter applied for FAA 
permits between October 22, 2015, and December 15, 
2015.  On January 22, 2016, the FAA informed appellant 
that there were airspace concerns about the height of the 
cranes Cutter planned to use.  On February 3, 2016, the 
FAA determined a hazard to air navigation and advised 
that airspace would be impacted.  The temporary 
construction crane permit required the VOR Facility at 
Pease/Portsmouth of the National Air Space System 
navigational equipment to be shut down.  Cutter submitted 
a request to shut down the VOR, beginning on March 14, 
2016.  The CO noted that the FAA only required 30 days 
notice for the shut down and it was unclear why Cutter 
opted to ask for a later date. (R4, tab 32 at 32-33) 
 
c.  The CO opined that there was no impact on the 
schedule because the two parties’ permits were submitted 
at nearly the same time (id.) 
 
96.  The tenth delay allegation the CO discussed was the Building 253 duct 
bank clearance at the new transformer.  The CO stated that the government was unable 
to understand this claim because it was too vague.  However, the CO reviewed the 
project record to determine if delay existed.  The CO quoted RFI 253.171, which was 
submitted on August 22, 2016, where Cutter asked the government to provide details 
about where to set the transformer pad.  The CO stated the government provided a 
final response on August 30, 2016, and discussed the transformer location on-site with 
Cutter’s Site Superintendent.  The CO noted that no further RFIs related to the issue 
were submitted and the parties closed out the issue in project documents.  The CO 
concluded that there was no indication of “slow decision making” as Cutter alleged.  
(Id. at 33-34) 
 
97.  The eleventh delay allegation the CO discussed involved the Building 253 
insulated metal wall panels.  The CO opined that this claim was not ripe for discussion 

32 
 
because Cutter was still in the process of pricing the CCOR.  Still, the government 
explained: 
 
On February 23, 2016, Cutter provided, submittals for the 
translucent walls panels, and the Government approved the 
submittal on March 3, 2016.  On September 30, 2016 (after 
174 days), Cutter first alerted the Government to conflicts 
in the design relating to this work—namely the dimensions 
of the openings for installation.  The Government 
responded by October 14, 2016, and accepted the proposed 
detail, and also required re-verification of certain details 
(girt elevations and girt types).  Cutter provided an 
incomplete response to the Government on November 15, 
2016, which did not clearly address the girt re-verification 
requirements.  The design issues were resolved by 
November 25, 2016, when the Government provided 
sketches requested by Cutter. 
 
(R4, tab 32 at 34)  
 
 The government stated in the termination letter that it intended to consider an 
adjustment request from Cutter and intended “to render a determination that 
reasonably compensate[d] Cutter for this additional work relating to this design issue” 
but because Cutter was still in the process of pricing a CCOR for submission, the 
“issue was not ripe for consideration or action.”  (Id.) 
 
98.  The twelfth delay allegation the CO discussed was the trench drains.  The 
CO stated that drawings that were provided required reinforcements, but it appeared 
that Cutter planned to disregard the directions regarding reinforcements.  Further, on at 
least two occasions, the government found that Cutter failed to use reinforcements in 
the trench drains.  According to the CO, Cutter affirmed the refusal to include 
reinforcements in its cure notice response.  The CO noted that he did not construe the 
actions described as repudiation but reserved all remedies for the nonconforming 
work.  (Id. at 34-35) 
 
99.  The thirteenth delay allegation the CO discussed was the stored equipment 
claim.  The CO stated that the allegation was “convoluted and vague.”  The CO stated 
that the allegation lacked merit.  (Id. at 35) 
 
100.  Next, the CO stated his findings on the schedule delays experienced on 
the project, as noted in the cure notice and identified as conditions that endangered 
performance on the contract.  The CO stated that the conditions had not been cured 
and that Cutter had not furnished a plan to cure the delays.  According to the CO, 

33 
 
Cutter instead appeared to assert excusable delay for all of the delays and assigned the 
blame to the government.  The CO stated that even if the government caused the 
delays, Cutter was still required to submit a plan and schedule as required by the cure 
notice.  (R4, tab 32 at 35-36)   
 
101.  Regarding the delay allegations, the CO found “the facts do not support 
the allegation that the Government is the sole and exclusive cause of delays on this 
construction project, as Cutter seemingly alleges; the facts also indicate that the delays 
experienced on this construction project arose from causes plainly within control of 
Cutter.”  (Id. at 36) 
 
B.  Substandard Workmanship and Failure to Follow the Contract Plans  
and Specifications 
 
102.  The CO then opined that Cutter had provided substandard workmanship 
and failed to abide by the contract’s plans and specifications.  The CO stated that the 
cure notice required Cutter to provide remedial measures to address the areas of 
concern, including describing corrective measures that would be taken to prevent such 
future failures.  However, the government alleged that instead of providing a 
meaningful response, the CO stated that Cutter dismissed the section by stating that the 
conditions had been remedied.  While the CO was aware that some of the issues were 
remedied, “the primary purpose to describing the nonconforming work in the Cure 
Notice was to describe the repeated failure in project management and contract 
performance.”  (R4, tab 32 at 36, ¶ 2.i-vi)  The repeated problems outlined in the cure 
notice included several issues. 
 
103.  Regarding recurring deficiencies with installation of electrical conduit 
underslab in Building 253, the CO stated this had been remedied but that Cutter did 
not provide any response to explain how it would control quality issues such as the one 
here, which led to delay of four months, from happening in the future.  (Id. at 36-37) 
 
104.  Regarding the severed conduit in Building 254, the CO stated that Cutter 
did not appear to dispute the contract’s requirement but also failed to respond to this 
concern (id. at 37). 
 
105.  Regarding the I-beam structural steel, the CO was very concerned with 
the poor quality of the work and was not reassured by Cutter’s cure notice response 
that adequate quality control measures were in place to preclude this from happening 
again throughout the life of the project.  The CO stated that structural steel deficiencies 
still remained unresolved by Cutter.  The CO concluded, “Cutter’s Cure Notice 
Response provides no plan to prevent future occurrences of substandard work, and 
provides no responsive information or explanation for quality control issues.”  (Id. 
at 37-38) 

34 
 
 
106.  Regarding the missing vertical rebar, the CO stated that Cutter admitted to 
improperly installing the rebar but asserted that it was not a quality control issue and 
was corrected.  The CO expected Cutter to provide a plan to prevent future 
occurrences such as this one but Cutter provided no response.  (Id. at 38) 
 
107.  Regarding missing L-bars, the CO stated that Cutter alleged a safety issue 
but never submitted an RFI or request to deviate from the plans and specifications 
concerning the issue.  The CO stated that Cutter did not believe this was an issue and 
provided no remedial or corrective measure for “this blatant disregard for the Contract 
Specifications.”  (Id.) 
 
108.  Regarding the interior curb walls, the CO stated that Cutter did not appear 
to dispute the government’s description of nonconforming work.  The CO stated that 
the nonconformance was further proof of Cutter’s lack of understanding of the 
requirements in the contract.  The CO also stated that Cutter failed to provide any 
response to prevent further occurrences of substandard work.  (Id.) 
 
109.  The CO found that the cure notice identified several substandard 
workmanship issues and failures to abide by the contract but that Cutter did not 
provide any proof or reassurances that the conditions had been cured.  The CO stated 
that Cutter failed to provide information that responded to the government’s requests 
for remedial or corrective measures, as well as actions to prevent such occurrences in 
the future.  The CO was particularly concerned with quality control issues that Cutter 
failed to address.  The CO found that the conditions had not been cured.  (Id. at 38-39) 
 
C.  Failure to Prosecute Work 
 
110.  As the third area of concern, the CO stated, “As the record of this project 
demonstrates, Cutter has not prosecuted the work with the diligence that will insure the 
project’s completion within the time specified in the Contract” (id. at 39).  The CO 
stated that Cutter requested over 200 days for a time extension, which Cutter 
calculated as 233 days which was requested in the REA and 211 days which was 
analyzed by a time analyst.  The CO stated, “By any metric, Cutter is significantly 
behind schedule.  For the reasons stated above, I find it reasonable to believe that there 
is no likelihood that Cutter can perform the entire contract effort within the time 
remaining for contract performance.”  (Id.) 
 
D.  Failure to Provide Adequate Assurances 
 
111.  As the fourth area of concern, the CO stated that Cutter did not provide 
adequate assurances.  The CO stated, “If Cutter had formulated a realistic and 
workable plan to return the project to timely performance, or otherwise provided 

35 
 
convincing support that it would indeed get this project back on track and moving 
forward, this would weigh in favor of not terminating the contract for default.”  (R4, 
tab 32 at 39)  Instead, the CO found, “Cutter has altogether refrained from providing a 
plan and schedule for project recovery, as requested by the Cure Notice” (id.at 39). 
 
E.  Failure to Comply with Contract Provisions 
 
112.  As the fifth area of concern, the CO found that Cutter failed to comply 
with contract provisions.  Specifically, the CO opined that Cutter failed to comply with 
FAR 52.236-5, Material and Workmanship; FAR 52.236-3, Site Investigation and 
Conditions Affecting the Work; FAR 52.246-12, Inspection of Construction; and 
FAR 52.236-15, Schedules for Construction Contracts.  The CO further opined that 
failure to follow these provisions caused delays.  The CO concluded, “I find that 
Cutter’s failure to perform in accordance with contractual obligations is a material 
deviance from the contractual bargain between the parties, and constitutes a separate 
ground for default.”  (Id.) 
 
F.  Termination for Default Decision 
 
113.  The CO stated that he decided to terminate the contract for default for 
several reasons and attempted to resolve the problems at the lowest level possible, with 
multiple cure notices, after attempting to work with Cutter.  The CO found that most 
of the issues in the cure notices were still uncured at the time of termination and led to 
the decision to terminate.  The CO found that Cutter’s actual performance was 22.5% 
complete instead of the 47.2% scheduled to be complete.  The CO stated that Cutter 
claimed to be 223 days behind schedule, which Cutter attributed to the government.  
The CO stated that Cutter did not provide a plan to recover lost time on the project and 
was not able to stop additional delays.  Additionally, the CO decided to terminate 
because of substandard workmanship and quality concerns.  (R4, tab 32 at 40) 
 
114.  As of the termination date on December 29, 2016, approximately 
14 months remained until the March 8, 2018 completion date. 
 
IV.    After the Termination 
 
115.  On January 4, 2017, Cutter responded to the termination for default, 
stating that a more detailed response would be forthcoming.  Cutter claimed that it was 
not in default and that the termination was wrongful.  Cutter stated that it addressed 
and fixed any issues identified by the government in the October 25, 2016 cure notice.  
Cutter stated that the project was behind due to excusable and compensable delays.  
Cutter stated that it thought the parties were partnering and discussing how to deliver a 
successful project.  Cutter closed by requesting that the government rescind the 
termination and requested a meeting.  (R4, tab 33) 

36 
 
 
116.  On January 13, 2017, the CO sent Cutter a letter stating that it would 
respond to Cutter’s November 13, 2016 certified claim by January 31, 2017.  (R4, 
tab 34) 
 
117.  On January 17, 2017, Cutter sent a more detailed response to the CO’s 
termination notice.  Cutter stated that it was not in default and did not commit a 
material breach.  Regarding workmanship problems, Cutter stated that the government 
was rehashing already-remedied issues.  Regarding schedule delays, Cutter stated that 
the government was the cause of the delays due to “conflicts in the Contract 
Documents, ongoing design changes, unforeseen site conditions and failures by the 
Government to provide requested information and approvals.”  (R4, tab 43 at 1)  
Cutter addressed the following areas in detail:  1) RFI impacts; 2) column 12’D’; 
3) fire pump; 4) fire alarm/mass notification system; 4) Grade Beam; 5) FOD, or 
temporary, fence; 6) FAA permits; 7) Building 253 duct bank clearance at new 
transformer; 8) Building 253 insulated metal wall panel; 9) trench drains; and 10) 
stored equipment.  Cutter also included a section entitled “Prior Workmanship Issues 
Have Been Resolved” but again failed to explain how it would prevent these issues 
from occurring in the future with any of the problems.  Cutter’s classification of 
resolved issues included:  1) installation of electrical conduit underslab Building 253; 
2) conduit severed in Building 254; 3) I-beam structural steel; 4) vertical rebar 
missing; 5) L-bars missing; and 6) interior curb walls.  (R4 tab 43)  
 
118.  On January 19, 2017, Cutter appealed the termination for default decision 
to the Board.  The Board docketed the appeal with two ASBCA numbers: ASBCA 
No. 61020 concerned the termination for default; ASBCA No. 61021 concerned 
Cutter’s claim for time extension and associated costs. 
 
119.  On January 31, 2017, the CO issued a final decision on the November 13, 
2016 certified claim.  The CO denied the claim.  First, the CO stated that he denied the 
claim because Cutter misinterpreted or ignored the contract requirements to submit 
project schedules.  Second, the CO stated that project schedule submittals were 
deficient.  Third, the CO stated that Cutter relied upon a “Time Impact Analysis” that 
was fundamentally flawed because it did not cite to any portions of the contract or 
plans and specifications.  (R4, tab 35 at 7-8)  Finally, the CO reviewed each claim and 
provided his analysis, which was very similar to the termination for default notice.  
(Id. at 9-26) 
 
120.  On February 10, 2017, Cutter filed an appeal with the Board based on the 
CO’s final decision for the November 13, 2016 certified claim.  The Board docketed 
this appeal as ASBCA No. 61061.  
 

37 
 
121.  Also on February 10, 2017, Cutter requested a final decision from the 
contracting officer on the termination for default.  Cutter stated that it had “responded 
to the December 29, 2016 purported termination notice.”  (R4, tab 45)  Cutter stated 
that it responded to the notice on January 4, 2017, and January 17, 2017, and appealed 
the decision on January 19, 2017.  Cutter stated that while it believed the December 29, 
2016 letter was a final decision, it was asking for a final decision to avoid ambiguity 
and confusion.  (Id.) 
 
122.  On April 24, 2017, Cutter filed an appeal with the Board for what it called 
a deemed denial of its request that the government reconsider the termination for 
default.  The Board docketed this appeal as ASBCA No. 61146. 
 
123.  On April 7, 2017, Cutter submitted a claim to the CO seeking 76 calendar 
days extension (October 2, 2016 through December 29, 2016) and requested a CO’s 
final decision (R4, tab 47 at 1). 
 
124.  On August 7, 2017, the CO issued a final decision denying the April 7, 
2017 claim (R4, tab 48 at 2). 
 
125.  On August 11, 2017, Cutter appealed the August 7, 2017 CO’s final 
decision for the April 7, 2017 claim.  The Board docketed this appeal as ASBCA 
No. 61278. 
 
V.     Hearing Testimony and Expert Reports  
 
126.  During the hearing, several witnesses testified concerning the events 
leading to the termination.  This testimony largely restated, reiterated, and further 
reenforced the parties’ versions of their arguments as stated in the written 
documentation previously discussed and summarized above.  However, during the 
hearing, a few items were discussed that expanded upon the Rule 4 file.  The largest 
differences in testimony were from appellant’s CEO and the expert reports which 
contained additional analysis.  The parties stipulated to admitting the expert reports as 
proffered testimony so the experts did not need to explain their entire reports on the 
record and largely provided testimony through cross-examination and redirect during 
the hearing.  (Tr. 3/5) 
 
A.  Relevant Testimony from Cutter’s CEO 
 
127.  Appellant’s CEO, Mr. Dwyer, testified regarding the severed conduit in 
Building 254, stating, “Cutter severed electrical conduits in the floor and the issue 
turned into an ordeal, and essentially made its way into a termination letter against me 
even though what was depicted in the contract documents reflected nothing that I 
encountered and ultimately was held accountable for, an existing differing site 

38 
 
condition” (tr. 1/99).  Mr. Dwyer testified that underslab conduits were not identified 
in the contract documents (tr. 1/99-100).  Mr. Dwyer testified that Cutter conducted 
site visits and used the as-built drawings to determine where conduit existed (tr. 
1/100).  Mr. Dwyer stated that the as-built drawings did not indicate anything being 
under the slab.  Mr. Dwyer testified that the government stated that the as-built 
drawings might not be helpful and to proceed with caution.  (Tr. 1/102)  Mr. Dwyer 
testified that the as-built drawing contained a conflict with what they saw in that a 
single circuit to a duplex convenient outlet existed but there was no indication of it or 
its presence “being underslab, overhead, within the wall, or anything else” (tr. 1/103-
04).  Mr. Dwyer testified that power was disrupted for one area but that Cutter restored 
the power and he believed the issue was resolved (tr. 1/108–09). 
 
 During cross-examination in which he was directed to different pages of the 
contract, Mr. Dwyer testified that he did not know when a site survey was performed 
for Building 253 (tr. 2/19-20; R4, tab 1 at 229).  Mr. Dwyer also admitted he did not 
know when his company recorded existing conditions in the presence of the 
contracting officer prior to demolition (tr. 2/20-21).  Mr. Dwyer answered “no” in 
response to the government’s question:  
 
Going back to the contract specification, I believe it’s the 
fourth sentence says, “Include in the record the elevation 
of the top of foundation walls, finished floor elevations, 
possible conflicting electrical conduits, plumbing lines, 
alarm systems, the location and extent of existing cracks 
and other damage and description of surface conditions 
that exist prior to starting work.” 
 
Do you know whether that was done by Cutter for 
Building 253? 
 
(Tr. 2/23) 
 
 Mr. Dwyer also testified about the grade beam, which he characterized as a 
government delay (tr. 1/212).  He testified that the grade beam ran across the entire 
front of the building and bore the weight of the hangar doors (tr. 1/212).  He testified 
that the drawings indicated Cutter was to “cut and remove a 14-foot-six-inch wide 
section of the existing grade beam” but Cutter discovered a conflict with the design 
(tr. 1/215).  Mr. Dwyer testified that Cutter and its subcontractor needed “to remove 
more of that grade beam so that workmen could get into that area and install form 
work the full width of that” and requested approval to remove it, which was granted 
(tr. 1/216).  Mr. Dwyer testified that Cutter submitted RFI 38, indicating “further 
design ambiguities related to the existing grade beam” which specifically sought 
direction on removing the top eight inches (tr. 1/216).  He testified that the government 

39 
 
agreed with removing more of the grade beam and that the government indicated the 
proposed solution should not increase the cost of the project (tr. 1/217).  He testified 
that on July 1, 2016, Cutter submitted its cost proposal for $234,838 and 53 calendar 
days extension for the grade beam removal (tr. 1/218).  Mr. Dwyer testified that Cutter 
did not agree with the government’s Modification No. P00003, dated August 12, 2016, 
to increase the cost of the project by $30,605.46 and five calendar days and notified 
the government of the disagreement (tr. 1/220-21).  He testified that there were 
additional issues with the east end of the grade beam, as indicated in RFI 188 
(tr. 1/221).  Cutter was terminated before being able to complete the east end grade 
beam changes (tr. 1/223). 
 
128.  Regarding missing vertical rebar (finding 46.d.), Mr. Dwyer testified from 
Cutter’s notice of termination response letter (tr. 1/51 (citing app. supp. R4, tab 109)) 
and RFI 145 (tr. 1/54 (citing app. supp. R4, tab 220)).  Mr. Dwyer admitted, “On those 
four control joints, Cutter’s masonry subcontractor omitted . . . one of those two bars 
on each side of the control joint.  It was caught during installation.”  (Tr. 1/53-54)  The 
RFI included a statement that demonstrated that Jason Karlin from Oak Point 
discovered the error (app. supp. R4, tab 220 at 4068).  Mr. Dwyer later testified that 
Mr. Karlin was the government inspector (tr. 1/64).  Mr. Dwyer also testified that the 
issue was resolved in June 2016 (tr. 1/55).  We find that Cutter failed to follow the 
specification during these concrete pours.  Further, we find that it was Cutter’s 
responsibility to follow the specification. 
 
129.  Regarding the interior curb walls section B-1 (finding 46.f.), Mr. Dwyer 
admitted,  
In prosecuting the work of placing the concrete foundation 
walls, Cutter, its subcontractor, and the team on the ground 
in error placed 4,000 PSI concrete on several different days 
totaling 38 cubic yards of 4,000 PSI concrete being placed 
where the contract indicated 5,000 PSI concrete. 
 
(Tr. 1/62)  This mistake included approximately six pours of concrete (tr. 1/64).  
Mr. Dwyer testified that the government’s inspector and the contracting officer’s 
technical representative were in attendance at the pours but did not provide Cutter 
notice of the error until the sixth pour (id.).  Further, Mr. Dwyer testified that Cutter 
hired a structural engineer, at the government’s request, and that structural engineer 
determined that the 4,000 PSI concrete was acceptable and structurally adequate 
(tr. 1/65– 66).  It was Mr. Dwyer’s opinion that the government accepted the 4,000 PSI 
mix (tr. 1/68). 
 
130.  Mr. Dwyer testified at length about the impacts of column 12’D’ using 
marked up specifications to demonstrate the issues that occurred and the impacts of the 
problem (tr. 1/153-60).  He continued discussing the schedule and submissions he 

40 
 
made to the CO concerning the impact (tr. 1/161).  He further discussed the submittal 
process surrounding column 12’D’ which included submittals and rejections and 
resubmittals through to the modification and work that occurred pertaining to the issue 
(tr. 1/162-82). 
 
131.  Mr. Dwyer testified concerning the general schedule and what schedule 
should have been used to determine the actual status of the project (tr. 1/111-13).  
Specifically, he testified that he believed Cutter was further along than the baseline 
CPM schedule indicated (tr. 1/112).  He testified, “The [g]overnment didn’t provide us 
any actual analysis at any point during the project based on the CPM schedule itself” 
(tr. 1/113).  Instead, according to Mr. Dwyer, the government used applications for 
payment (id.).  He testified that the CO requested he perform an analysis to 
demonstrate the status of the project and compare it to the status of the original 
schedule (tr. 1/113-14 (referencing app. supp. R4, tab 204)).  He testified that the 
analysis he prepared demonstrated the differences between the initial schedule and the 
payment requests (tr. 1/114-15).  He testified that he created a fictitious schedule per 
the CO’s request based on the assumption that everything had gone as planned from 
the baseline CPM schedule (tr. 1/115 (referencing app. supp. R4, tab 420)).  Further, 
he created a fictious payment application per the CO’s request reflecting percent 
complete if the project had gone as planned (tr 1/115-16 (referencing app. supp. R4, 
tab 421)).  He opined that these two fictitious schedules revealed “that the project 
ha[d] not gone as planned” and “where the project would be if it had gone as planned” 
(tr 1/116).  He agreed with the government attorney that under these fictitious 
schedules, he would have billed 33.49% and the progress would have been 42% 
(tr. 1/117). 
 
 Mr. Dwyer further testified that he did not provide a recovery schedule or 
recovery plan and explained in detail why he did not do so (tr. 1/251-53).  He testified 
that he could not provide a recovery plan or recovery schedule without the delay items 
he identified being fixed (tr. 1/252-53).  He testified about why he requested a 
suspension of work, so the “project stakeholders could regroup and, as a team, resolve 
those issues, create a plan to move forward, possibly even partner for the first time on 
the job and ultimately, God willing, build the buildings I was hired to build” (tr. 1/253). 
 
132.  In cross-examination, Mr. Dwyer agreed that he was included on a 
December 15, 2015 email from a Cutter subcontractor concerning the FAA permits, 
that included attached emails dated between November 3, 2015, and November 10, 
2015.  Specifically, the November emails pertained to the FAA permits and notified 
appellant that the FAA did not see a filing for permanent construction and requesting 
the height of the building being constructed.  (Tr. 2/26-27; R4, tab 76 at 117278-81)  
The November emails demonstrated that Cutter’s subcontractor was notified by the 
FAA about the lack of filing for permanent construction as early as November 3, 2015 
(R4, tab 76 at 117280-81).  There was no evidence that Cutter’s subcontractor 

41 
 
responded to FAA questions about the height of the building and Mr. Dwyer testified 
that he did not know whether the question was ever answered (tr. 2/27-28; R4, tab 76).  
On November 10, 2015, the FAA asked for the elevation of the existing buildings 
again (R4, tab 76 at 117278).  Further, Mr. Dwyer admitted that he knew as early as 
the end of January 2016 that the structural steel subcontractor had just released its steel 
sequence into fabrication with a scheduled steel erection start date of March 14, 2016 
(tr 2/32 at 16-22; app. supp. R4, tab 133). 
 
133.  Mr. Dwyer admitted during cross-examination that for column 12’D’, 
temporary shoring was installed the day after the deficiency was discovered and that 
workers continued to work in the vicinity of column 12’D’ shortly after the shoring 
was completed (tr 2/34). 
 
B.  Relevant Testimony from the Contract Specialist, Amanda Bogue 
 
134.  Ms. Bogue was the government’s contract specialist for the duration of 
the project and was a contracting officer at the time of the hearing (tr 3/13, 15). 
 
135.  Ms. Bogue visited the project approximately once per week in the 
beginning but “started having a much stronger presence on the project” once the first 
letter of concern was issued (tr. 3/18).   
 
136.  Ms. Bogue testified that Cutter’s employee, Pat Briggs, seemed to become 
adversarial with some government personnel once the first letter of concern was issued 
(tr. 3/20).  The government removed the alternate COR from the project at Cutter’s 
insistence but the contracting officer and contract specialist maintained a good 
working relationship with Mr. Dwyer 
 (tr. 3/19-21). 
 
137.  In response to a question about what issues caused problems between 
Cutter and the government, Ms. Bogue testified, “I think the actual issue stemmed 
from Cutter wanting to run forward with the project and do the project, construction 
projects in their terms, rather than complying with what our contract specifications 
stated” (tr. 3/25-26).  She testified that Cutter, for example, kept referencing industry 
standards instead of the specifications regarding electrical conduits in Building 253 
(tr. 3/26). 
 
138.  Ms. Bogue testified that Cutter’s project manager was not effective 
because he did not appear to be authorized to make decision on Cutter’s behalf 
(tr. 3/28).  She also testified that Mr. Dwyer did not see everything happening on the 
project because there were times he was not on site (tr. 3/28-29).  When Mr. Dwyer 
did visit the site, he acted like the project manager (tr 3/29). 
 

42 
 
139.  Ms. Bogue testified that she believed Cutter abused the Request for 
Information system by submitting RFIs that were incomplete and submitting multiple 
RFIs for the same issue, trying to “get us to respond with an answer they had been 
seeking” (tr. 3/30-31).  This included objecting to the specifications (tr. 3/31).  Using 
RFIs in appellant’s supplemental Rule 4, tabs 162, 163, and 164, Ms. Bogue 
demonstrated that Cutter used four RFIs to disagree with the government’s 
specifications for the fire pump system; however, the government directed Cutter to 
proceed with the current specifications (tr. 3/31-35).  She testified that this level of 
disagreement and argument that the government was wrong, was not common with 
other contractors, and it caused delay with every issue because the government 
believed it gave Cutter a final answer but Cutter kept submitting new RFIs to argue 
their point (tr. 3/35).  The Board agrees that Cutter excessively used the RFI System 
and frequently disagreed with the specifications. 
 
140.  Ms. Bogue testified that the government made the decision to concede to 
Cutter’s work as they requested “so that we could together move the ball forward” 
(tr. 3/36)  She did not believe Cutter would move forward with the government’s 
direction to use the specifications provided (id.).   
 
141.  Ms. Bogue testified that she and the CO initially believed that Cutter and 
the government suffered from personality conflicts and attempted to resolve those.  
They wanted to see Cutter succeed as a small business.  They had many conversations 
with Mr. Dwyer about what needed to be done.  This included during the time 
surrounding the government issuing the cure notice, when Ms. Bogue and the CO 
“personally followed up with Mr. Dwyer before we sent that email, trying to convey to 
him what we needed him to respond with, the plan that we needed him to respond 
with, so that we could get this project back on track.”  (Tr. 3/37-38) 
 
142.  Ms. Bogue outlined that the project schedule was a problem because 
neither the initial schedule nor the full schedule were submitted on time (tr. 3/38-39). 
 
143.  Ms. Bogue stated that the government conceded to what Cutter 
recommended for the FOD fence because Cutter did not produce a submittal that 
showed it could achieve the contract specifications of withstanding winds to 80 miles 
per hour (tr. 3/39). 
 
144.  Ms. Bogue testified that she sent a letter to Cutter expressing concerns 
that they were at least 30 days behind schedule by October 30, 2015 (tr. 3/39-40). 
 
145.  Ms. Bogue testified that there were constant delays in submittal packages 
and submittal reviews became emergencies due to not being submitted on time (tr. 3/44). 
 

43 
 
146.  She testified that she did not agree with Mr. Dwyer’s testimony that the 
structural steel deficiencies did not delay the project because the structural steel 
deficiencies were still ongoing (tr. 3/45). 
 
147.  Regarding quality control, Ms. Bogue testified that government facility 
maintainers informed her of the conduit severing in Building 254 instead of Cutter 
informing the government.  When she arrived at the site after notification, she 
discovered that Cutter’s Quality Control Manager did not know that Cutter had 
severed the conduit.  This concerned her because she would have expected Cutter’s 
quality control person to be on site at any time Cutter was cutting concrete because of 
the prior conduit hit in Building 253.  From her observations, the quality control 
person was at his desk instead of observing the work 95% of the time.  (Tr. 3/45-47) 
 
148.  Ms. Bogue also testified that the quality control surrounding using 4,000 
PSI instead of 5,000 PSI concerned her because the government discovered that 
deficiency as well.  It made her, as the contract specialist, concerned that Cutter might 
have more deficiencies because government inspectors were not on-site 24 hours a 
day, seven days a week.  She was very concerned that a catastrophic event might occur 
because the government missed finding a discrepancy.  (Tr. 3/49-53) 
 
149.  Referencing meeting minutes that Cutter prepared, on June 7, 2016, 
Ms. Bogue testified that there was “approximately one month left of work of what can 
be done before the Column 12D issue [wa]s resulting in work stoppage” (tr. 3/54-55; 
app. supp. R4, tab 193 at 3937) 
 
150.  Ms. Bogue testified that Cutter never got to the point that they could not 
perform work due to Column 12’D’ prior to termination (tr. 3/55). 
 
151.  Ms. Bogue testified that she believed the government made the right 
decision in terminating the contract because even after issuing the first letter of 
concern in December 2015, the project continued to worsen.  The schedule kept 
slipping, there was poor workmanship and a lack of quality control.  There was no way 
they could see that Cutter would be able to complete the project on time.  (Tr. 3/56-57) 
 
152.  On cross examination, Ms. Bogue agreed some of the conflicts 
surrounded design errors (tr. 3/58-59).  She agreed that the girt misalignment issue and 
Column 12’D’ concerned specification issues; however, the underslab utilities were 
not (tr. 3/60-61). 
 
153.  During most of cross-examination, Ms. Bogue could not remember if she 
wrote particular portions of emails or other details counsel asked her about.  
Ms. Bogue’s testimony during cross-examination was not particularly helpful and we 

44 
 
find that the documents are more accurate than Ms. Bogue’s testimony regarding the 
specific phrases about which she was questioned. 
 
154.  During redirect concerning the government’s July 1, 2016 Letter of 
Concern and Cutter’s response, Ms. Bogue testified that she was concerned about 
Cutter not addressing the Site Superintendent disregarding the specifications of the 
contract (tr. 3/188-89 (citing R4, tab 17; app. supp. R4, tab 203 at 2)). 
 
155.  During redirect, Ms. Bogue testified concerning a December 7, 2016 
email that stated Cutter was nearly at a standstill, which Ms. Bogue understood was 
because subcontractors were not on site.  She testified that this was not because of a 
delay issue but a mismanagement issue and that it was at Cutter’s choice.  (Tr. 3/189-
90; app. supp. R4, tab 430 at 8904) 
 
156.  During redirect examination, Ms. Bogue testified about the specifications 
concerning the fire suppression system where the government first told Cutter to 
follow the specifications and then responded on March 11, 2016, to the third RFI that 
Cutter could provide a cost proposal so the government could fully review the 
proposal.  The government did not receive the proposal until August 24, 2016.  
(Tr. 3/194-96; app. supp. R4, tab 164 at 3244, tab 165))  Cutter included the time 
period between March and August 2016 in its 190-day delay claim (tr. 3/196 (citing 
R4, tab 26 at 10)).  The government stated in answer to the third RFI that the 
government did not concur with Cutter’s characterizations of the design, but that 
Cutter was proposing an alternative approach that could be considered if Cutter could 
demonstrate it was viable (R4, tab 164 at 3244).  The government stated that a change 
order including a list of requirements “may be submitted for consideration” (id.).  We 
take judicial notice that the time between March 11, 2016, and August 25, 2016, is 
167 days.  We find that the government directed Cutter to follow the specifications, the 
government did not require or direct a proposed redesign, that Cutter had the choice to 
submit this change order, and that Cutter incurred the time to create said change order 
at no fault to the government.   
 
C.  Relevant Testimony from Major Daniel Trembley, The Contracting 
Officer’s Representative                                                                                                     
 
157.  Major Trembley testified that he approved a change to the FOD Fence 
because Cutter could not find anyone to provide one that could withstand 80 mph 
winds.  This was required in the specification but the government made an exception 
and approved a replacement because it appeared sufficient.  He expected Cutter to 
have initiated the paperwork for the subcontractor but that did not happen so 
mobilization could not proceed immediately upon approval.  (Tr. 4/14-15)  Major 
Trembley did not remember any wind damage but there was damage from sandbags 
decaying and creating a foreign object debris hazard (tr. 4/16). 

45 
 
 
158.  Major Trembley testified that he had concerns with the qualifications of 
the initial Site Supervisor.  He provided an example that the Site Supervisor failed to 
have proctor tests performed on the subgrade soils and failed to engage a geotechnical 
firm to perform a geotechnical analysis required by the contract.  This caused a 10 
working-day delay.  (Tr. 4/18 (citing R4, tab 63. 45))  The Site Superintendent was 
replaced due to concerns with the level of expertise and knowledge (tr. 4/20). 
 
159.  Using Hearing Exhibit 6,6 Major Trembley testified about concrete pour 
quality control issues (tr. 4/30-34).  The specification stated the pours should have 
been between 37 and 41 inches (tr. 4/31-32).  But the pours reflected in the exhibit 
included pours that were not thick enough (tr. 4/32) and pours that were thicker than 
Cutter stated they were (tr. 4/33).  He was particularly concerned with the pours at 
columns D, E, and F because they were lower than the specification tolerance of 37 to 
41 inches (tr. 4/33-34).  There were also issues with the rebar mass location, which 
should have been 33 inches but was actually 31 inches (tr. 4/34). 
 
160.  Major Trembley was concerned about the grade beam because fully 
loaded dump trucks drove over it within five days of pouring, which is a very minimal 
cure time.  He testified that the bonds do not form for 28 days and that if they are 
broken, they will never reform so the government had to present the situation to the 
architectural engineers to clear the activity and make sure permanent damage did not 
happen.  (Tr. 4/36-37) 
 
 Also concerning the grade beam, Major Trembley testified that Cutter presented 
an RFI to remove the entire grade beam instead of the top eight inches (tr. 4/55).  This 
was a common request he has seen throughout his career because the government 
frequently would not call for an entire foundation to be removed, especially if it 
supported something like hydraulic or electrical equipment; however, contractors 
frequently say they know it does not have to come out but it is easier to take the whole 
thing out (tr. 4/55-56).  Because this is a common occurrence, when the government 
received Cutter’s RFI to remove the grade beam, the answer was, “yes, of course you 
can take the entire grade beam if you’d like at your own convenience and at no 
 
5 While the transcript indicates that counsel directed the witness to R4, tab 63.04, that 
tab does not exist.  The correct tab is 63.4, which is consistent with the 
testimony. 
6 Throughout the hearing, witnesses periodically discussed documents provided in the 
parties’ Rule 4 submissions, as well as documents submitted as hearing 
exhibits.  In those situations, we have cited to the transcript and have included a 
citation to the Rule 4 document and/or the hearing exhibit discussed during the 
testimony. 
 

46 
 
additional cost to the government.”  (Tr. 4/56)  Major Trembley testified that three 
months passed without further discussion when Cutter submitted a change proposal for 
approximately $250,000 and a 60-day extension (tr. 4/56).  Because Cutter was 
adamant that the entire grade beam needed to be removed, the government met with 
the designer to make certain the engineers had not missed anything (tr.4/56).  He 
testified, “We did determine that there were four locations there were going to be 
trench drainage running through the grade beam at which point they would have to 
take out more than the 8 inch depth.”  (Tr. 4/56)  At that point, they modified the 
contract for around $32,000 and an extension of 7 days to accommodate that change 
(tr. 4/56-57)  When Cutter remained adamant that the entire grade beam was required 
to be removed, the CO directed the government personnel to take another look at the 
specifications so the civil engineers, contracting personnel, and design contractor again 
looked at the design and determined the entire grade beam was not required to be 
removed (tr. 4/57-58). 
 
161.  Major Trembley testified that there was a delay between January 13, 
2016, and February 24, 2016, because of Cutter’s lack of planning when constructing 
the tie beams, that prevented Cutter from being able to work inside the building (tr. 
4/38-39).  We take judicial notice that the number of days between January 13, 2016, 
and February 24, 2016, was 43 days. 
 
162.  Major Trembley testified that Cutter did not adhere to specifications as 
demonstrated by the structural steel misalignment and the underslab conduit, which 
had already had issues that had to be reworked previously so Cutter should have fixed 
that process (tr. 4/42). 
 
163.  Major Trembley testified that because there had been issues in Building 
253 with the electrical conduit, the government took extra precautions for Building 
254 but Cutter still cut the conduit in the slab (tr. 4/42-43). 
 
164.  Major Trembley testified that as of April 30, 2016, Cutter was supposed 
to have been 48% complete with Building 253 but was only 21% complete, so the 
estimated completed date had slipped from December 22, 2016 to March 10, 2017.  
Further, Building 254 had slipped from February 3, 2017 to April 18, 2017.  (Tr. 4/45-
46) 
 
165.  Major Trembley testified that Cutter had an opportunity to work on both 
buildings at the same time but that the new schedule never materialized.  Further, 
Cutter had the opportunity to work weekends but it did not do so.  Additionally, 
everyone was gone from the construction site by midday Fridays and ended their days 
at 3:30 p.m. every Monday through Thursday.  This caused significant frustration 
because Cutter did not seem to exhibit a sense of urgency on a contract that was 
behind schedule.  (Tr. 4/46-47)  He testified that other people also noticed, “We had 

47 
 
people from all over the wing inquiring why, if the contractor was behind schedule, 
was nobody there on Friday afternoon and why they were leaving mid-afternoon on 
many days.”  (Tr. 4/51-52) 
 
166.  Major Trembley testified that in June 2016, Cutter was approximately 
six months behind schedule and that the issues were not minor issues but were 
significant enough that the designer of record stated “that it’s a major concern with 
misalignment at the C truss splice screening a stress concentration” (tr. 4/48)  Further 
Cutter failed to install rebar as required in the drawing specifications.  “At that point it 
was getting to the point where it was a daily thing where I’d go out on the job site and 
find[] deficiencies versus what the drawings and specifications required” (tr. 4/48-49). 
 
167.  Major Trembley testified that in July 2016, the incorrect lintel was 
installed over a wide door opening and he pointed it out to Cutter.  He testified that 
Cutter submitted an RFI asking if the wrong lintel was acceptable and, before getting 
an answer, installed a second incorrect lintel.  (Tr. 4/49-50) 
 
168.  Major Trembley testified that the schedule slipped three weeks during one 
month in the summer of 2016 and slipped five weeks in a four-week month.  He 
testified it was very difficult to explain to wing leadership how a project slipped 
five weeks over the course of four weeks.  (Tr. 4/52-53)  He also testified that he 
discussed this issue with Cutter personnel (tr. 4/53 (referencing R4, tab 62.20 (emails 
demonstrating those discussions)). 
 
169.  In cross-examination, Major Trembley responded that he did not know for 
many questions because he was not present at the time.  He also answered 
affirmatively that documents said what appellant read to him.  (Tr. 4/61-78) 
 
170.  During redirect examination, Major Trembley testified that several issues 
existed regarding a third-party inspection report from John Turner Consulting (JTC), 
to the extent that he reported the quality concerns to the contracting office.  The issues 
dealt with signing off on something being done within specifications when they were 
actually not, like not installing required rebar.  (Tr. 4/83-84 (citing app. supp. R4, 
tab 493)) 
 
D.  Relevant Testimony from Lieutenant Colonel Eugene Mozzoni, the 
Base Civil Engineer 
 
171.  Lieutenant Colonel (Lt Col) Eugene Mozzoni was the Base Civil Engineer 
during the project and was in charge of the civil engineering unit at Pease (tr. 4/92).  
He testified that Cutter did not manage its subcontractors (tr. 4/101 (“It was  
non-existent.”)).  He also testified that he did not see Cutter exhibit appropriate quality 
control either.  He stated Cutter’s Quality Control Manager was mostly in his office 

48 
 
doing paperwork and that even for pours, he would not be on the site but would be in 
his office.  He testified that this was significant because it meant the government was 
doing the contractor’s job.  He expected a larger staff for the size of the job.  
(Tr. 4/102-03)  He also did not believe Cutter prosecuted work in a timely manner 
because Cutter seemed to do only one thing at a time instead of having multiple jobs 
being completed at the same time.  He questioned how Cutter could possibly get 
everything done if it only had “one subcontractor doing one thing at one time.”  
(Tr. 4/103) 
 
172.  Lieutenant Colonel Mozzoni testified that to keep the project moving 
along, the government frequently “allow[ed] the contractor to install something less 
than was required.” (tr. 4/103-04).  He used the FOD fence and the 4000 PSI concrete 
installed versus 5000 PSI required as examples (tr. 4/104).  He testified that the 
government acquiesced so Cutter could proceed (tr. 4/103). 
 
173.  Lt Col Mizzoni testified that this contract was different than other 
contracts he worked on because when there were arguments, with the government 
engineers, the engineer of record, and the representative from Oak Point all saying the 
same thing, while Cutter saying another thing (tr. 4/106). 
 
E.  Relevant Testimony from Major Autumn Ricker, Deputy Base Civil 
Engineer 
 
174.  Major Ricker testified that he was involved with the project during the 
design phase as well as during Cutter’s contract performance until the end of January 
2016.  He testified he was also involved after termination.  (Tr. 4/151-53)  He testified 
that he is the COR on the follow-on contract with Vertex, the company the surety 
selected to complete the work post-termination (tr. 4/153-54). 
 
175.  Major Ricker testified that during the time he worked on the subject 
contract, he visited the project site several times a week and his presence increased to 
typically daily during the month of January 2016 (tr. 4/160).  
 
176.  Major Ricker testified that the contract required Cutter to design some 
items, like trapeze hangers for piping systems for the FOD fence, fire protection work, 
and vibration and seismic isolation pipe anchors (tr. 4/161-62).  Structural steel 
connections were one of the more significant design components of this contract and 
Canatal, the steel fabricator, had professional engineers on staff to perform design 
work (tr. 4/162). 
 
177.  Major Ricker testified that the FOD fence was important because it is a 
temporary construction fence, but it prevents small items, like coffee cups or 
insulation, from getting blown away from the construction area, which was important 

49 
 
in this project because of the construction’s proximity to an active airport (tr. 4/165-
66).  The government rejected the plans for first FOD fence Cutter submitted because 
the fence did not meet the specifications in the contract: the plans did not demonstrate 
it could withstand 80 mph winds and did not show back stays or blocks used to support 
the fence (tr. 4/168-69).  In the resubmittal, Cutter addressed the block issue but not 
the 80 mph winds requirement and did not consider the three feet of silt fence at the 
bottom.  Nevertheless, the government accepted the resubmittal.  (Tr. 4/169)  The 
fence failed in several locations on a weekend with high winds of about 30-40 mph 
(tr. 4/170).  Major Ricker testified that he and Lt Col Mozzoni did a perimeter walk 
after receiving a call about the failed fence and noticed several other issues with 
improperly and dangerously stored items like an oxygen cylinder, an acetylene bottle, 
and a diesel tank sitting on pavement with a battery on top of it (tr. 4/170-72 (citing 
R4, tab 68 at 3-6)).  Further, the relaxed fence the government approved did not 
comply with Cutter’s proposed fence because back stays that were proposed were not 
included properly as part of the fence (tr. 4/171-72). 
 
178.  Regarding the underslab electrical conduit hit in Building 253 
Major Ricker testified that even without as-built drawings, Cutter should have seen 
that underground service was there based on the electric room and paint in the hanger 
indicating electrical, which would have been discovered had Cutter performed a proper 
site survey (tr. 4/176-79).  There were no wires above the electrical room or going to 
the building so everything was obviously underground (tr. 4/179-80). 
 
179.  Regarding the trench drain in relation to the conduit hit, Major Rickers 
testified that the top 13-inch portion of the trench drain was supposed to be demolished 
but the lower part was to remain, according to drawing SD501 (tr. 4/184-85 (citing R4, 
tab 2 at 30).  If the trench drain had been cut in that manner, the conduits would not 
likely have been hit (tr. 4/185). 
 
180.  Major Ricker testified that he did not recall any pre-demolition walk-
through with the CO or even the COR for either Building 253 (tr. 4/187-88) or 
Building 254 (tr. 4/188-89).  This is something that Cutter should have noted in its 
superintendent daily report and the Quality Control Manager daily report, but nothing 
was noted (tr. 4/189-90). 
 
181.  Counsel directed Major Ricker to testify concerning another area that 
concerned him, specifically regarding segments of the footing.  Regarding the concrete 
pour for the footing on column line 1, Major Ricker testified that he went to the 
construction site because he was notified that it was ready for inspection (tr. 4/202).  He 
explained that the column line 1 footing was the second footing being placed, and that 
number 7 had been completed earlier (id.).  He explained that the purpose of a building’s 
footing is to support the entire structure above. It is a critical element to ensuring the 
entire weight of the building is supported.  (Tr. 4/208)  He testified that he discovered 

50 
 
that many areas were not the required three feet, three inches thick and not within 
tolerance (tr. 4/202).  Further, he testified that the rebar cage was too close together inside 
of the footing profile (tr. 4/203).  On January 15, 2016, the government discovered too 
much stone underneath the footing on column line 1 and Cutter took action to correct the 
deficiency which was annotated in the superintendent daily report for January 19, 2016 
(tr. 4/204).  Major Ricker testified that by January 25, 2016, the deficiencies still existed 
but he was unable to fully inspect the area because Cutter refused to remove the thermal 
blankets that kept the rebar and concrete warm (tr. 4/211-14) 
 
F.  Relevant Testimony from Chief Master Sergeant Bussell Concerning       
     Issues Discovered After Termination  
 
182.  The alternate COR, Chief Master Sergeant (CMSgt) Brett Bussell, 
testified about his experience with the project’s termination.  He became the alternate 
COR approximately a week after the government terminated Cutter.  (Tr. 5/6-7) 
 
183.  CMSgt Bussell testified that he prepared a slideshow with some of the 
observations he had since being part of the project and also reports from third parties 
that had been given to Vertex.  This slideshow was admitted into the record with no 
objection by Cutter as Hearing Exhibit 10 and included photographs of various 
portions of the project.  (Tr. 5/14-16) 
 
184.  After termination, the government discovered several problems with 
Cutter’s workmanship.  These included:  1) inadequately tightened bolts; 2) gaps in the 
installation of the pan decking; 3) failure to properly compact soil; 4) exterior wall 
penetrations caused damage to insulation; 5) Lintel above door opening improperly 
installed; 6) underslab electrical conduit not installed according to specifications; and 
7) lack of survey, or grade, control in the structural steel alignment, grade beam height, 
trench drain sewer line, and CMU wall footings.  (Ex. 10) We find that all of these 
items required remedial work or correction by the follow-on contractor.   
 
185.  CMSgt Bussell testified that he worked with Tetra Tech (the design firm) 
to do a report of the work that remained and any deficiencies.  He testified that he was 
involved with exploratory work, potholing, trenching, utilities, and ensuring 
everything was installed correctly.  He also worked with Vertex once they were hired 
to continue the project.  (Tr. 5/7-8)  He testified that the exploratory work was visual 
inspections and running cameras through some of the lines but that the government did 
not damage anything (tr. 5/12-13). 
 
186.  CMSgt Bussell testified that he broke the concerns into three areas:  
1) lack of quality control; 2) lack of adherence to specifications; and 3) lack of survey 
(grade) control (tr. 5/16, 26, 32; ex. 10 at 10). 
 

51 
 
187.  CMSgt Bussell testified that over 1,000 of the bolts were hand tightened 
instead of torqued, which was reported to the government by Vertex and Neil White, 
Construction Steel Inspector.  This was important because hand tightened bolts could 
fall out and weaken the structure.  One can tell from the photographs that the bolts 
were not tightened with a torque wrench because the splines were showing and would 
have been sheared off if torqued.  (Tr. 5/16-18; ex. 10 at 3)  When asked how many 
bolts were found with the splines still on, CMSgt Bussell responded that there were 
over 1,000 and stated, “I witnessed probably – approximately five or six five-gallon 
buckets full of bolts that were taken out and replaced.”  (Tr. 5/18)   
 
 CMSgt Bussell further testified that a report written by JTC, dated June 23, 
2016, demonstrated that splines were still on the bolt in the photograph and that there 
were not visible paint marks to indicate that the turn-of-the-nut method was authorized 
on it (tr. 5/18-19 (citing app. supp. R4, tab 255 at 4282)).  On cross-examination, 
CMSgt Bussell admitted that Cutter was authorized to use the turn-of-nut method 
when they could not use the tension control wrench (tr. 5/63).  On redirect, CMSgt 
Bussell stated that Vertex found bolts had not even been tightened to the turn-of-nut 
standard (tr. 5/120).   
 
 Based on CMSgt Bussell’s testimony and the evidence in the record, we find 
that Vertex had to remove and replace over 1,000 bolts that Cutter had not properly 
torqued.    
 
188.  CMSgt Bussell testified that he and Vertex uncovered issues with pan 
decking, where the specification required a minimum end-bearing of an inch and a half 
and end joints are required to be lapped, where one sheet is supposed to be over the top 
of the other.  Instead, you can clearly see light to the floor below, indicating that the 
specifications were not followed.  (Tr. 5/19-20; ex. 10 at 4 (citing the requirement in 
R4, tab 1 at 353)).  In cross-examination, CMSgt Bussell admitted that if Cutter had 
not been terminated, it could have fixed the issue with the pan decking (tr. 5/66-67).  
Further, he agreed that the shop drawings were approved and that deck ends shall be 
butted over supports (tr. 5/70-71, 76-77; ex. 13 at 18).  He also testified that a zero lap 
where Cutter would butt the ends was in violation and was a variation of the contract, 
without any marking for the variation (tr. 5/76).  In redirect, CMSgt Bussell testified 
that a lap of zero inches does not have a gap and that the photograph in Hearing 
Exhibit 10 did not meet the requirement for a lap of zero inches (tr. 5/126; ex. 10 at 4). 
 
189.  CMSgt Bussell testified that there were issues with soil compaction where 
Cutter supplied sporadic reports about soil compaction so Vertex and JTC did 
compacting testing.  The testing revealed that several areas had no compaction.  This 
was a problem because if the soil is not compact to the specified levels and later a 
concrete slab is placed on top of it, that slab will settle over time, possibly cracking or 
causing structural issues.  He testified that every layer needed to be compacted 

52 
 
properly.  Because they did not have the proper documentation to demonstrate the 
compacting, that had to be reworked so they knew for certain it was built correctly.  
(Tr. 5/20-22)  JTC should have provided the test report and those were required to be 
uploaded into Projectmates but nothing was in Projectmates.  Unless they had their 
own testing lab onsite, there would not be a way for Cutter to know how compact the 
soil was.  He also testified that the requirement was for not more than a six-inch lift for 
hand-operated tamp equipment being used but the lift was much more than six inches.  
(Tr. 5/22-24 (citing hearing ex. 10))     
 
 In cross-examination, CMSgt Bussell admitted that the area had been backfilled 
with no test reports but also testified that some areas had insufficient compaction or 
compaction failed testing (tr. 5/79-80).  He testified that the government did not have a 
report that demonstrated corrective work or recompacted work but that did not mean 
recompacting did not occur (tr. 5/81-82).  CMSgt Bussell further admitted that he did 
not know what type of equipment was used for soil compaction without going back to 
the test reports from that day (tr. 5/90-91). 
 
 In redirect, CMSgt Bussell stated that JTC did the testing for both Cutter and 
Vertex.  Further, JTC lacked data that demonstrated that soil compaction testing had 
been done in the appropriate areas.  (Tr. 5/127) 
 
190.  CMSgt Bussell testified that there were exterior penetration issues based 
on photographs throughout the construction where you can see daylight out of holes 
left open to the elements and insulation on the inside of the facility was damaged.  He 
testified that leaving the exterior penetrations open was a problem because it can cause 
mold, mildew, rust, and other issues inside the building.  He could not say how long 
the penetrations were open because they were demolished but he testified about 
problems from the penetrations.  (Tr. 5/25-26; ex. 10 at 6 (citing the requirement 
at R4, tab 1 at 51)) 
 
191.  CMSgt Bussell testified that the lintel bearing plates still had issues that 
needed to be resolved even though Mr. Dwyer testified that these were no longer 
issues (tr. 5/26).  He testified that he has been at the site and you can see a visible 
crack in the concrete “all the way up that wall and that goes from one joint, through 
the center of the next block, to the joint, through the center of the next block, to this 
joint, center of the next block, all the way above” in the photograph he referenced. 
(tr. 5/29; ex. 10 at 8).  He testified that the cracking indicated that the wall settled from 
when it was placed because there are not enough bearing plates where the wall shifted 
(tr. 5/29-30).  In cross-examination, CMSgt Bussell agreed that the project sat for 
almost one year without work, that Cutter was not permitted to return to the project, 
and that the government did not cover the project at all (tr. 5/47-51).  Specifically, the 
government did not make efforts to close the penetrations (tr. 5/51). 
 

53 
 
192.  CMSgt Bussell testified that there were several areas with issues 
regarding underslab conduit.  In some areas, there was no sand bedding under the 
conduit as required by the contract (tr. 5/30-31; ex. 10 at 9).  Further, because pipes 
were stacked next to each other, there was not room for sand bedding (tr. 5/31).  He 
testified that not doing this properly will typically result in cracking in a slab when 
aircraft, vehicles, and materials drive over the area (tr. 5/32). 
 
193.  CMSgt Bussell testified that there was a lack of survey control in several 
areas at the site.  There were areas that were not plumb that were outside of the 
American Institute of Steel Constructions Code of Standard Practices that defined 
tolerances.  He testified that the wall panel manufacturer that Cutter used specified no 
more than one-eighth inch variation at ten feet but Cutter had one inch.  This meant 
that the panels Cutter chose could not be affixed to the girts because the panels would 
bend or kink.  (Tr. 5/32-36; ex. 10 at 10-12)  
 
194.  When asked about Column 12’D’, CMSgt Bussell testified that Vertex 
was able to work on the project because shoring was put in place so the structure was 
rendered safe.  He testified that it may have been more cumbersome or tedious to work 
in the area, but work continued.  Vertex safely worked in the area with only the 
shoring for approximately a year as the column was not repaired until two weeks 
before he testified.  The repair took one week to accomplish.  (Tr. 5/36-38)  We find 
that it was safe to work in the area with only a shored column, which occurred during 
Cutter’s performance of the contract and was the subject of Modification No. P00001 
(see finding 41). 
 
195.  Regarding grade beam removal, CMSgt Bussell testified from tab 127 of 
appellant’s Rule 4 file (tr. 5/38-39).  Appellant requested 53 days and $234,838 for the 
change (app. supp. R4, tab 127 at 0866).  Vertex removed the grade beam in all the 
locations inside the facility in three days (tr. 5/39).  Vertex used the trench drain that 
Cutter left behind at the site, a Zurn pre-fabrication, pre-formed plastic trench drain.  
CMSgt Bussell testified that this was a drain meant to be cast in the concrete.  They set 
it in place, to grade, placed reinforcing steel (or rebar) around it, placed their forms 
and cast the drains in concrete.  (Tr. 5/39-40) 
 
G.  Appellant’s Expert Report and Testimony 
 
196.  Appellant proffered, and the government did not object to, Russell Berner 
of Construction Claims Group (CCG) as an expert witness in the area of forensic 
schedule analysis (tr. 2/71-72, 75-79; app. supp. R4, tab 296; ex. 4).  The Board 
admitted appellant’s expert report per the parties’ request (tr. 2/78; app. supp. R4, 
tab 295 (appellant’s expert report)). 
 

54 
 
197.  Mr. Berner’s methodology in his report used the Association for the 
Advancement of Cost Engineers International (AACE), Recommended Practice 
No. 29R-03, Retrospective-Modeled-Additive-Single Base technique.  “This technique 
consists of the insertion of activities representing delays into a critical path method 
(‘cpm’) schedule that will model and calculate the effect of the impact.”  (App. supp. 
R4, tab 295 at 4479)  Mr. Berner confirmed this during cross-examination (tr. 2/87-
88).    
 
198.  During his testimony, Mr. Berner stated that the schedules were 
problematic and not very helpful in performing the analysis.  Thus, he used an 
impacted as-planned analysis.  He opined that “the overall project was delayed through 
termination 393 days or so, which is about January 7, I believe, 2019.  So, my analysis 
indicated that there is a basis for a non-compensable contract extension, for the 
impacts that were encountered during the project.”  (Tr. 2/73-74)  
 
199.  During cross-examination, Mr. Berner stated that he used an “impacted 
as-planned” analysis which was not listed as a matter in which he had expertise in his 
CV (tr. 2/84, 86).  
 
200.  In his executive summary of his report, Mr. Berner stated that the project 
was significantly delayed by many design changes and unforeseen differing site 
conditions (app. supp. R4, tab 295 at 4472).  He posited that Cutter issued several 
letters to the government, requesting 299 days of delay, but that the government only 
granted 33 days of extensions, which was inadequate (id. at 4473).  He opined that the 
COTR had personality conflicts with appellant’s personnel and delayed the project by 
unreasonably denying contract extension requests (id.).  Mr. Berner concluded that 
Cutter was entitled to a compensable time extension of 299 days as opposed to the 33 
days awarded by the government (id. at 4475).  He opined that the government ignored 
the concept of a concurrent delay (id.). 
 
201.  The expert report provided a timeline chart to demonstrate his opinion that 
appellant was not responsible for the delays (app. supp. R4, tab 295 at 4477-78). 
 
202.  In his report, Mr. Berner assumed that the baseline schedule was approved 
late, thus placing blame on the government although he wrote about both sides’ 
arguments.  However, at the end of that analysis, he stated, “Ultimately, the argument 
regarding who is culpable for the delayed schedule approval (NHANG or Cutter) is 
not germane to this forensic schedule analysis because the Project records show work 
progressed even without an approved schedule.”  (App. supp. R4, tab 295 at 4481) 
 
203.  In his expert report, Mr. Berner created three categories:  1) 
“Major Discrete Delays”; 2) “Ongoing Concurrent Delays as of Termination”; and 
3) “Other Delays” (app. supp. R4, tab 295 at 4486).  He defined the Major Discrete 

55 
 
Delays as: 1) FAA Permit Delays; 2) Column 12’D’ Issues; and 3) Severing of 
UnderSlab Electric Conduit.  He opined that the Ongoing Concurrent Delays as of 
Termination consisted of:  1) owner caused delay to FAMNS; 2) fire pump design 
delay; 3) asbestos contaminated material (ACM) dust; and 4) trench drain issues.  He 
explained Other Delays meant “[b]y themselves, but-for the over-arching delays 
caused by the above ‘Major Impacts’, each of these ‘Other Impacts’ would have 
caused extensions to the Project’s completion date” (id.).  Mr. Berner described the 
Other Delays as issues with the metal wall panel and grade beam demolition (id. 
at 4486-87) 
 
204.  In his report, Mr. Berner opined that according to his schedule analysis, 
appellant was entitled to 339 calendar days of delay due to the column 12’D’ issues 
and the FAA permit issue in the Major Impacts category (app. supp. R4, tab 295 
at 4477-78).  Specifically, Mr. Berner opined that the FAA permit issues caused 
46 days of delay and the column 12’D’ issues caused 293 days of delay, both of which 
should be attributed to the government (id. at 4488-97).  If Cutter was not granted an 
extension of time for the FAA permits and column 12’D’ issues, Mr. Berner opined 
that Cutter would be entitled to “not less than 150 days” of delay for demolition of 
unmarked underslab conduits (id. at 4497-99). 
 
a.  Regarding the FAA permits, Mr. Berner opined that the government 
admitted it was responsible for submitting the building designs and admitted it was 
late.  According to Mr. Berner, this caused the construction crane permits to be 
delayed.  He opined that the delay impacted steel erection so it could not commence on 
March 14, 2016, and the government should be responsible for one and a half months 
of delay.  (Id. at 4488-90) 
 
b.  Regarding column 12’D’, Mr. Berner opined that on March 25, 2016, 
during excavation, appellant discovered deficiencies with column 12’D’ in Building 
253 (app. supp. R4, tab 295 at 4491).  Cutter sent the government an email and 
immediately installed emergency shoring.  Mr. Berner described in his report the 
actions taken to install new shoring and taking core samples.  (App. supp. R4, tab 295 
at 4491-93)  Further, Mr. Berner summarized that the column sprang loose during 
foundation demolition in December 2016 and before Cutter could start any repairs, the 
contract was terminated (id. at 4493).  According to the expert, column 12’D’ impact 
“held up a portion of activity 135 ‘FRP Composite Shop Walls’” (id. at 4493). 
 
c.  Mr. Berner opined that the government’s position was incorrect.  He 
characterized the government’s position as being that the government acknowledged 
the unforeseen site condition but then denying that Cutter was entitled to any extension 
because:  1) the government response was timely; 2) the repair was not contingent on 
shoring the column; and 3) appellant was responsible for 195 days of delay measured 
from April 5, 2016, when the sketch was provided to Cutter, through October 17, 

56 
 
2016, when a cost proposal was provided.  Mr. Berner opined that the government was 
incorrect because the government did not provide immediate direction to make the 
repairs and that 195 days of delay attributable to Cutter was inaccurate.  For the 
repairs, the government did not direct appellant to perform work according to the 
sketch it provided.  Further, the sketch was an outline of one possible solution and was 
marked tentative and not for construction.  (App. supp. R4, tab 295 at 4494-96) 
 
d.  Mr. Berner attributed 293 days as incremental compensable contract 
extension as a result of the unforeseen condition of column 12’D’.  Basically, 
Mr. Berner calculated the time from March 25, 2016, through December 29, 2016.  If 
the FAA permits are not acknowledged as delay, then Mr. Berner opined that Cutter is 
entitled to a contract extension of 339 days of delay for column 12’D’.  (App. supp. 
R4, tab 295 at 4496-97)  
 
e.  Regarding severing the conduit in Building 253, Mr. Berner opined, 
“The Contract Documents did not show any existing underslab electrical conduits” 
(app. supp. R4, tab 295 at 4497).  Cutter requested as-builts, but the government did 
not provide any that showed underslab conduit and appellant unintentionally cut 
conduits buried under the slab (app. supp. R4, tab 295 at 4497-98).  On November 9, 
2015, appellant started demolition of the concrete slab in Building 253.  On January 
12, 2016, appellant severed numerous electrical conduits that were in the 14-inch 
concrete slab.  On March 18, 2016, appellant performed emergency repairs and 
procured a generator to provide temporary power.  On September 30, 2016, appellant 
completed the slab demolition at Building 253.  On November 4, 2016, appellant 
restored permanent power.  (App. supp. R4, tab 295 at 4497-98) 
 
f.  Mr. Berner considered the conduit severing completely the fault of the 
government.  Mr. Berner opined that the work was on the NH04 critical path with 
zero days float and was supposed to be performed from December 17, 2015, through 
December 29, 2015.  However, appellant started early but was not able to finish until 
September 30, 2016, which Mr. Berner claimed would be a delay of 288 days as one 
way to measure the delay.  Mr. Berner also opined that the conduit issue was 
concurrent to the FAA permit and column 12’D’ delays, but if Cutter was not 
considered entitled to recovery on those issues, it would be entitled to an extension of 
time of at least 150 days, from June 23, 2016, through November 25, 2016, for the 
underslab conduit issue.  (App. supp. R4, tab 295 at 44989) 
 
205.  Mr. Berner opined that further delays, in the category of Ongoing 
Concurrent Delays as of Termination (FAMNS, fire pump, ACM, and trench drain), 
were also the fault of the government but were concurrent with the column 12’D’ 
issues and the FAA permit issue.  He opined that Cutter would have been entitled to a 
339-day contract extension.   
 

57 
 
a.  For FAMNS, Mr. Berner opined that Cutter was entitled 
to at least 305 days because of what amounted to a sole 
source requirement for the system.  According to the 
expert, the subcontractor was not responsive and the 
government failed to approve an alternate.  It still had not 
been approved at the time of termination.  (App. supp. R4, 
tab 295 at 4499-03) 
 
b.  For the fire pump, according to Mr. Berner, Cutter 
informed the government that the current system would not 
pass current code requirements.  After some argument 
from the government about whether the system met the 
code requirements, appellant provided four options and the 
government selected one, but did not provide drawings for 
several months.  On March 11, 2016, the government 
requested Cutter submit a cost proposal and the revised 
pump design.  Cutter could not submit a cost proposal until 
it received the design drawings, which it did not receive 
until October 11, 2016.  Cutter submitted a proposal on 
December 7, 2016.  Mr. Berner opined that this was a 
critical delay, although concurrent, and would have 
resulted in a delay of at least 259 days, with more probable 
due to it not being resolved at the time of termination.  
(App. supp. R4, tab 295 at 4503-05) 
 
c.  For the ACM, Mr. Berner reported that Cutter notified 
the government about the presence of asbestos and heavy 
metals after its painting subcontractor mobilized and tested 
the area, providing the results of the testing on November 
23, 2016.  Mr. Berner opined that the dust impacted several 
other areas, including: Column 12’D’; preparation of 
surfaces; installation of mechanical, electrical, fire 
protection, and other equipment; foundation excavation, 
including trench drain installation; placement and finishing 
of the mezzanine concrete slab deck; and installation of 
mezzanine mounted equipment.  Mr. Berner stated the 
government did not respond from November 23, 2016, 
through December 29, 2016 (termination).  The 
government had not responded to Cutter’s concerns by the 
time termination occurred.  Mr. Berner attributed at least 
143 days of critical delay to the government.  (App. supp. 
R4, tab 295 at 4506-07) 
 

58 
 
d.  Regarding the trench drain, Mr. Berner stated that there 
was originally a design discrepancy and the government 
answered an RFI that led to Cutter using a modular trench 
drain system instead of a cast-in-place drain.  The 
government stopped installation because the structural 
engineer alleged it was noncompliant with the 
requirements.  According to the expert, this would have 
caused a contract extension of 181 days.  (App. supp. R4, 
tab 295 at 4507-09) 
 
206.  Mr. Berner included a category called “Other Delays” in which he 
included two items: the metal wall panel and grade beam demolition.  Mr. Berner 
opined that the government should have extended the contract for each of these alleged 
delays; however, they were concurrent delays with the other delays, so no additional 
delays occurred to the schedule.  If the government had not terminated the contract and 
all other delays were ignored, Mr. Berner opined that contract extensions of 256 days 
for the wall panel and 126 days of delay for the grade beam demolition would have 
been required.  (App. supp. R4, tab 295 at 4509-13) 
 
 Regarding the grade beam demolition, Mr. Berner summarized the 
communications between the parties.  Mr. Berner stated that Cutter notified the 
government of the cost and 53-day request for extension on July 1, 2016.  Mr. Berner 
stated that Cutter completed the work in Modification No. P00003 on September 30, 
2016, but reserved the rights to seek additional time and compensation.  Mr. Berner also 
opined that the topping slab impacted the grade beam and that Modification 
No. P00003 did not address that issue.  He opined that the 126-day delay was 
concurrent with other delays but would have increased if the contract had not been 
terminated and would stand alone without the other claimed delays.  (App. supp. R4, 
tab 295 at 4511-13) 
 
207.  During his testimony, Mr. Berner stated that there were a number of 
procurement activities that did not have a direct nexus to the construction activities.  
He further stated that there were constraints within the schedule that he did not list in 
his report because he did not view them as important.  (Tr 2/91) 
 
208.  Mr. Berner stated that neither the structural steel submittal process nor the 
steel fabrication time were on the driving critical path (tr. 2/100).  Further, the 
construction of footings related to the structural steel were not reflected in the critical 
path because, at worst, any delay would be non-compensable and concurrent with the 
delay caused by “the FAA situation” (tr. 2/100-01). 
 
209.  Mr. Berner testified that one could not tell whether a particular activity 
was critical, and his response demonstrated the problems with appellant’s schedule and 

59 
 
provided insight as to why he analyzed the delay as he did.  Specifically, Mr. Berner 
stated,  
 
From a scheduling update perspective, it’s hard to tell, 
which is why I chose the approach I did in impacted as-
planned.  Because while you use these schedule 
contemporaneously for project management purposes to 
get a gauge of where you are in the project, but to look at it 
forensically, in order to determine what is the critical path 
of the project in an after-the-fact analysis, you can’t 
answer that question because of all of the activities that are 
missing from this schedule, which I believe probably 
would have overridden whatever was critical.  But you 
can’t tell because they’re not in this schedule.  
 
(Tr. 2/102-03) 
 
210.  Mr. Berner testified that actualized dates could not be included in the 
baseline because it would impact the internal logic (tr. 2/104-05). 
 
211.  When asked whether he reviewed the RECON analysis (the company who 
assisted with appellant’s REA), Mr. Berner responded that he considered it but “went his 
own way” although he thought his analysis was similar to RECON’s.  (Tr. 2/113-14) 
 
212.  Mr. Berner had no knowledge of why there were 5-digit and 3-digit 
activity codes (tr. 2/115). 
 
H.  The Government’s Expert Report and Testimony 
 
213.  The government proffered, and appellant did not object to, Joseph 
McFadden, of Capital Project Management, Inc. (CPMI), as an expert witness in the 
area of forensic schedule analysis (tr. 2/76-79; R4, tab 60.000; ex. 5).  The parties 
requested to admit, and the Board so admitted, the government’s expert report 
contained in the Rule 4 file (tr. 2/78). 
 
214.  According to the government’s expert report, CPMI’s methodology was a 
Schedule Analysis that was a retrospective methodology using the contemporaneous 
schedule updates: 
 
CPMI prepared this Schedule Analysis to quantify and 
allocate the delay that occurred on the Project.  This 
analysis is a retrospective methodology that utilizes the 
contemporaneous schedule updates to analyze the Project 

60 
 
in succinct time periods over the course of the entire 
Project.  CPMI utilized this methodology to assess the 
causes of and the duration of delay emanating from project 
issues to determine the effect of delay-causing events to 
the contract completion date.  Under this methodology, 
periods of time are evaluated, allowing for an assessment 
of the work completed during the period between updates, 
as well as a forecast of the balance of the work yet to 
complete.  Specifically, the delay to the project is 
measured by examining the actual progress of the critical 
path from the update at the start of the period and changes 
to the critical path forecast as of the schedule update at the 
end of the period.  By analyzing the project history at 
appropriate successive intervals starting with the baseline 
schedule and working chronologically to the schedule at 
termination, this process normally allows for the 
determination and assessment of specific delaying events 
in the context of the project at the time the events occurred.  
This is a preferred method of analyzing delay because it 
considers the contemporaneous schedules and attempts to 
measure delay against the schedule in effect at the time of 
delay. 
 
CPMI utilized the contemporaneous Cutter schedule 
updates to derive the sequence or path of activities that 
controlled the completion of the project. 
 
(R4, tab 60.000 at 10-11) 
 
215.  Mr. McFadden testified that he used the Critical Path Method to analyze 
the schedule.  He explained 
 
So, Critical Path Method is a type of calculation that is 
done on a schedule.  A schedule is made up of tasks that 
defined the work items.  Those work items are assigned a 
duration.  They’re logically tied together in a network and 
then the software does this process of calculating the start 
and finish dates for each of the activities, based on that 
network and it can determine the sequence of work through 
that network. 
 

61 
 
So there’s many paths of work and then the critical path is 
the longest path through the schedule and that’s what we 
focus our efforts on analyzing. 
(Tr. 5/145) 
 
Mr. McFadden was asked in cross-examination, “And you would agree with 
me, would you not, that the base international recommended practice number 29R-03 
is the protocol that good forensic schedule analysis stems from?”  (Tr. 5/173)  
Mr. McFadden answered, “So the RP 29 is just what it states.  It’s a recommended 
practice.  It’s not a standard.  It’s not something that would be followed without 
exception, there is judgment in doing this type of work . . . .” (id.).  When asked if he 
followed AACE in performing his schedule analysis, Mr. McFadden answered that he 
did not. 
 
In redirect, Mr. McFadden testified about the recommended practice further, 
acknowledging that the AACE International Recommended Practice No. 29R-03 even 
states at the beginning of it that it is a recommended practice not intended to establish 
a standard of practice (tr. 5/201 (referencing app. supp. R4, tab 359 at 8685). 
 
The AACE International Recommended Practice No. 29R-03 contained in its 
introduction, “This RP is not intended to establish a standard of practice, nor is it 
intended to be a prescriptive document applied without exception.  Therefore, a 
departure from the recommended protocols should not be automatically treated as an 
error or a deficiency as long as such departure is based on a conscious and sound 
application of schedule analysis principles.  As with any other recommended practice, 
the RP should be used in conjunction with professional judgement and knowledge of 
the subject matter.  While the recommended protocols contained herein are intended to 
aid the practitioner in creating a competent work product it may, in some cases, require 
additional or fewer steps.”  (App. supp. R4, tab 359 at 8685 (emphasis added)) 
 
Mr. McFadden agreed that adopting use of 29R-03 did not assure the soundness 
of substantive content (tr. 5/201-02 (citing app. supp. R4, tab 359 at 8714)).  He 
further testified that the recommended procedure did not endorse any one 
methodology over another (tr. 5/202). 
 
 Mr. McFadden further testified that the American Society of Civil Engineers, of 
which he was also a member, had publications concerning schedule-delay analysis and 
that it was similar to the recommended procedures for AACE (tr. 5/202). 
 
216.  Mr. McFadden used P6 software by Primavera, then bought out by Oracle, 
to conduct the analysis.  Mr. McFadden testified that Mr. Berner used P3, an earlier 
version of the software, which has been phased out of being used.  (Tr. 5/145-46) 
 

62 
 
217.  Mr. McFadden testified that his approach was “to use the 
contemporaneous schedules to the fullest extent possible . . . .” (tr. 5/151).  He also 
called this a time-impact analysis (id.).  He testified that his approach was “to utilize 
the schedules as they existed and walk through those schedules to assess delay” 
(tr. 5/152).  We find that this time-impact analysis was an appropriate way to approach 
the analysis, given the circumstances with missing or incomplete schedules. 
 
218.  Mr. McFadden’s report stated, “To analyze delays to the overall project 
completion, I have evaluated nine (9) distinct periods from the contemporaneous 
schedule updates, which cover the performance period from August 18, 2015 (Award) 
through December 29, 2016 (termination)” (R4, tab 60.000 at 13)  The 9 periods were: 
1) Baseline Schedule Update NH04 through Schedule Update NH06 (id. at 13-29); 
2) Schedule Update NH06 through Schedule Update NH07 (id. at 29-35); 3) Schedule 
Update NH07 through Schedule Update NH08 (id. at 35-41); 4) Schedule Update 
NH08 through Schedule Update NH09 (id. at 41-48); 5) Schedule Update NH09 
through Schedule Update NH10 (id. at 49-53); 6) Schedule Update NH10 through 
Schedule Update NH11 (id. at 53-57); 7) Schedule Update NH11 through Schedule 
Update NH13 (id. at 58-66); 8) Schedule Update NH13 through Schedule Update 
NH14 (id. at 66-75); and 9) Schedule Update NH14 through termination (id. at 75-90).  
We find this breakdown of the timeline useful in our analysis of the case. 
 
219.  Mr. McFadden testified that he reviewed how the actual work aligned 
against the delay allocations that Cutter presented in its REA (tr. 5/156-57).  He stated 
 
That there were many things that impacted the progress of 
the work that were not mentioned within the REAs, 
particularly material conformance issues, subcontractor 
availability issues.  There were things with fixing 
deficiencies with installed work.  There were temperature-
sensitive items that were slipping into winter-restricted 
periods and all those things impacted the ability to assess 
delay as you walked through the scheduling. 
 
(Tr. 5/157)  Mr. McFadden testified that the flaws in the schedule affected the critical 
path, making it difficult to assign any specific delay to those issues (tr. 5/157-58).  
He also testified that he “noted that the concrete paving items were one of those 
significant tasks that was affected by a winter restriction within the contract” and he 
re-ran the schedules with the dates of the provided schedule (tr. 5/158).  We agree with 
Mr. McFadden that Cutter failed to consider the winter restriction when determining 
the schedule. 
 

63 
 
220.  When asked whether consequential issues7 created problems in the 
schedule, as Mr. Berner testified, Mr. McFadden testified that he would not agree with 
that statement 
 
Because flaws within the schedule were already there 
before the consequential issues that Mr. Berner is 
referencing arose on the project.  So, the duplicative 
activities, the fact that procurement activities were not tied 
to install activities, that third-party inspection activities 
were not logically tied to run parallel to construction tasks, 
that weather calendars were not in place for weather-
sensitive work, you know, such as the concrete paving, but 
also for things like landscaping and painting, which were 
also affected by weather-time constraints. 
 
(Tr. 5/203) 
 
Mr. McFadden testified that the structural-steel submittal process started late 
and required a second submittal, which pushed release of fabrication out from mid-
December to February (tr. 5/204). 
 
221.  CPMI’s analysis yielded the following expert opinions as outlined in the 
executive summary of Mr. McFadden’s report: 
 
o Subcontractor performance issues related to:  (sic) 
slow progress, availability, nonconforming 
materials and installations contributed to impacting 
various portions of the work; 
 
o By July 2016, the Cutter delays to the tail dock 
hangar addition had already pushed the hangar bay 
and apron slabs into the winter exclusionary period, 
which meant the start of floor slabs and finishes 
would not commence until spring of 2017; 
 
o After July 2016, the Cutter-alleged delay issues that 
arose were not on the critical path because months 
 
7 Mr. Berner testified that the schedules were “missing certain activities, the most of 
which happen to deal with what I call the consequential activities, the 
consequential events that would occur as a result of design issues or unforeseen 
conditions that impacted the work.”  (Tr. 2/73-74) 

64 
 
of float were available before the restart of floor 
slab and finish work in the spring of 2017; 
 
o Regarding the Cutter REAs, the alleged delays are 
duplicative and overstated.  The delay compilations 
ignored the contemporaneous schedules and 
disregarded any contribution that Cutter or its 
subcontractors had in completion of the alleged 
delayed work; 
 
o Finally, CPMI finds that no entitlement to 
additional time is due Cutter for performance of the 
work under the contract. 
 
(R4, tab 60.0000 at 6-7) 
 
222.  In his report, Mr. McFadden stated that he analyzed appellant’s REA, 
which included a schedule analysis prepared by RECON International, Inc. (RECON).  
The expert pointed out a major issue with the RECON report in that RECON initiated 
its analysis by developing a “Summarized Baseline Schedule” using two baseline 
schedules submitted by appellant, NH02 and NH04.  (Id. at 8)  Mr. McFadden stated, 
“NH04 was the baseline schedule that was approved by NHANG, it is unclear why the 
earlier unapproved NH02 was considered in RECON’s modelled baseline, and 
RECON provided no explanation for its inclusion” (id.).  Then RECON inserted the 
as-built information to create an “Impacted As Built Schedule to Oct 1
st” to 
demonstrate the issue of delay periods with as-built tasks.  RECON derived the delay 
periods with each issue and ultimately determined which issues introduced project 
delay and then considered with issues were concurrent.  “RECON determined that 
Cutter experienced 223 calendar days of excusable delay, while two (2) modifications 
had previously addressed 12 calendar days, leaving a balance of 211 excusable 
calendar days.”  (Id.)  In the REA, Cutter determined that the delays were fully 
compensable (as opposed to RECON’s determination that the delays were excusable) 
and applied a daily general conditions rate and an unabsorbed home office overhead 
rate. However, while the two alleged delay cost components totaled $1,061,071.38, 
Cutter alleged the two components were $1,125,266.20, which left $64,198.82 
unexplained.  (Id.) 
 
223.  Mr. McFadden explained that Cutter’s second certified claim sought an 
extension of 76 calendar days for performance from October to December 2016, also 
using RECON to analyze the situation.  Of those 76 days, RECON admitted that a 
modification addressed 21 days, leaving an alleged 55 excusable calendar days, now 
totaling 299 calendar days of excusable time; however, 33 calendar days were 

65 
 
addressed by Modifications Nos. P00002, -03, and -05 which resulted in 266 calendar 
days and the above compensation request of $1,125,266.20.  (Id. at 9-10) 
 
224.  In his expert report, Mr. McFadden listed several problems with the 
schedule. 
 
These problems included: 
 
- Duplicative Tasks; 
 
- Monitoring tasks became part of the critical sequence of 
installation work; 
 
- Material payment tasks became part of the critical 
sequence of installation work; 
 
- Lack of a weather calendar for temperature sensitive 
work; 
 
- Preferential logic restraining out of sequence work; 
 
- Failing to correct repeated out of sequence work; 
 
- Missing schedule narratives reflecting schedule changes, 
progress achieved, and an accurate status of the remaining 
work; 
 
- Procurement Tasks (Submittal Prepare & Submit, Review 
& Approve, Fabricate & Deliver) not logically tied to 
installation tasks, but rather to a single finish constraint. 
 
(Id. at 11-12) (footnote omitted) 
 
225.  Mr. McFadden testified that appellant’s REA delay allegations were 
overstated, in part because appellant failed to incorporate the requirements from the 
specifications to avoid the winter period for concrete paving.  Thus, Cutter had not 
proven entitlement to those delays.  (Tr. 5/165-66) 
 
226.  Mr. McFadden admitted that his expert report was limited to analysis of 
appellant’s two REAs.  It did not rebut appellant’s expert report by CCG.  (Tr. 5/171) 
 
227.  Mr. McFadden admitted that Cutter could not move forward to complete 
the column 12’D’ work until it received responses to the two RFIs pertaining to it.  

66 
 
Until the 12’D’ repair was done, the mezzanine work could not commence.  The 
support area could commence but the mezzanine work could not.  The new area deck 
that was being poured above the support area was proceeding.  (Tr. 5/197-99) 
 
228.  Mr. McFadden broke the schedule down into nine periods from the 
contemporaneous schedule updates, covering the period from contract award to 
termination (R4, tab 60.000 at 13).  This breakdown assisted us in finding that Cutter 
was unable to recover from early delays and demonstrated the cumulative effect of the 
early delays, including those due to the issues surrounding creating a viable schedule. 
 
229.  In the first period, which was baseline schedule update NH04 through 
NH06, Mr. McFadden explained that NH04 forecasted a contract completion date of 
February 2, 2018.  “[T]he primary critical path ran through securing permits, 
preconstruction preparation, and set up and mobilization prior to diverging what are, 
effectively, interior and exterior construction paths.”  (Id. at 13) 
 
230.  By schedule update NH06, the Building 253 schedule had already slipped 
69 calendar days and project completion had slipped 66 calendar days.  “Activity 
12268, Demolition of Existing Slab on Grade-Bldg 253, was the activity that 
commenced the most critical path float, followed by support area footings, composite 
shop footings, gutter/downspout foundations, backfilling of foundations, 
dampproofing, and start of structural steel. . . .”  (Id. at 14)  Structural steel erection 
relied upon several predecessor activities including “demolition of existing slab on 
grade, support area footings, composite shop footings, gutter/downspout and FRP 
concrete shop” (id.).  However, structural steel erection did not rely upon “the existing 
hangar bay demolition, foundations within the existing hangar bay, miscellaneous 
concrete structures or dampproofing” (id.).  The remaining critical path remained as 
reported in NH04 (id. at 15). 
 
231.  Appellant alleged 26 calendar days delay because of the foreign object 
damage (FOD) fencing.  The delay was actually nine calendar days.  Cutter stated the 
delay was October 26, 2015, through November 21, 2015, when completion actually 
occurred.  However, enough FOD fencing was in place by November 4, 2015, which 
resulted in the nine days of delay “until the critical successor activity could proceed.” 
(Id. at 15)  Further, Mr. McFadden’s report stated that, according to the COFD,  it was 
ultimately Cutter’s responsibility to provide an acceptable design for the FOD fencing 
and the government approved the revised submittal on October 15, 2015, also allowing 
a relaxed specification to allow for the revised submittal in a timely manner (id.). 
 
232.  Mr. McFadden also reviewed the FAA permits, agreeing that the 
government was responsible to provide the FAA permit associated with the new 
hangar building and Cutter was responsible to obtain the construction crane permit.  
The expert reiterated what was stated in the drawings and largely matched what the 

67 
 
CO stated in the COFD regarding the dates the permits were requested and granted.  
(R4, tabs 35 at 11-13, 60.000 at 15-16). 
 
233.  The FAA permits and structural steel procurement are tied together.  For 
the structural steel procurement, Mr. McFadden explained, “The structural steel had to 
commence delivery by January 29, 2016 to support the start of steel erection, however, 
the structural steel procurement process (submittal preparation, approval, fabrication 
and delivery) was not logically tied to the start of steel erection within schedule update 
NH04.”  (Id. at 22)  His report  opined that if the structural steel had been properly tied 
to the start of the structural steel erection, the criticality of the submittal would have 
been clear in schedule NH04 but, as it stood, steel was not delivered until mid-March 
2016, far after the January 29, 2016 critical start of steel erection (id.). 
 
234.  Mr. McFadden opined that the FAA Building permits (the government’s 
responsibility) were complete by January 22, 2016, which would have allowed critical 
steel erection starting January 29, 2016.  However, all of the other predecessor work 
was not completed timely, including the VOR System shutdown required with the 
FAA crane permit (which was appellant’s responsibility).  Thus, Mr. McFadden found 
no merit with Cutter’s 45 calendar days of delay for the FAA building permits.  (Id. 
at 25)  Further, Mr. McFadden noted that the RECON analysis concluded that the FAA 
building permit caused zero calendar days of delay (id. at 25 n.6).   
 
The RECON analysis Mr. McFadden referenced stated that the activity delay 
(measured from the planned start of steel erection, January 29, 2016, until the FAA 
permit was received with authorization, March 14, 2016) was 45 calendar days (R4, 
tab 26 at 25).  In contrast, “[t]he project delay account[ed] for concurrent and prior 
delays, re-sequenced logic and activity production” (id. at 25).  The RECON analysis 
continued, “The project delay is 0 calendar days because of the late FAA permit” (id. 
(emphasis in original)).  Further, in its breakdown of delays chart, RECON reiterated 
that the FAA Permit was 0 days of delay, 0 days of concurrency, and 0 days of 
non-concurrent project delay (id. at 37).  
 
235.  Mr. McFadden’s report explained that Cutter alleged 44 calendar days of 
delay on the critical path slab on grade demolition because of a power outage (R4, 
tab 60.000 at 25).  On January 12, 2016, Cutter caused an electric outage within the 
hangar, which appellant reported was severed.  However, the saw cutting 
subcontractor was not present on site that day, according to the government’s expert.  
“Additionally, the live electric conduit in question resided beneath the existing floor 
slab that [appellant’s subcontractor] had previously saw cut directly over in this area.”  
(Id. at 25)  Thus, Mr. McFadden calls this issue “Hangar Power Outage – Under Slab 
Electric Break” instead of underslab severing (id.)  He opined Cutter was actually 
responsible for the power outage because Cutter and its subcontractors failed to 
remove the underlying conduit during the slab demolition and failed to protect, 

68 
 
disconnect, and avoid the interruption of service.  Further, during subsequent slab 
removal by appellant’s subcontractor, “the wire terminal was pulled off the 
transformer a distance away from the removed conduit causing fluid to leak from the 
transformer, and . . . the underlying conduit was ripped up from beneath the adjacent 
hangar slab during slab removal.”  (Id.)  According to Mr. McFadden, it was also 
unclear why the main electrical service remained energized during slab removal when 
the electrical subcontractor was onsite in October and November for other demolition 
work (id. at 27).  This is especially problematic because specification 0241000 
Demolition, subsection 3.1.2.1 indicated that demolition would not commence until all 
utility disconnections had been made (id.). 
 
236.  Mr. McFadden opined that Cutter overstated the 66-day NH04 to NH06 
delay and that it should have been attributed “to the equipment and materials necessary 
to commence steel erection which was the responsibility of Cutter and its 
subcontractors” (id.). 
 
237.  In Mr. McFadden’s second delay period, NH06 to NH07 schedule update, 
he opined that the Phase I completion and project completion had slipped nine 
calendar days (id.).  He explained that no progress was made on the critical path item, 
Demolition of Existing Slab on Grade (id. at 27-28).  “Following completion of slab 
on grade activities, the critical path transitioned into interior finishes” (id. at 30).  The 
interior finishes time was reduced by overlapping with other activities that had 
previously been sequential (id. at 28).  The steel erection began earlier than projected 
and overlapped with the sequential interior finishes, in reality (id.).  Cutter adjusted 
some schedule issues, reducing ready-mix concrete materials from 100 days to 
five days, which Mr. McFadden classified as Cutter performing “normal schedule 
maintenance necessary in the schedule updating process” (id. at 29-30). 
 
238.  Mr. McFadden reviewed the column 12’D’ impact in this NH06 to NH07 
section, opining that protracted demolition of the existing slab delayed the start to 
excavation and backfill activities, rather than column 12’D’ being the problem.  He 
specifically stated 
 
A comparison between schedule updates NH06 and NH07 
indicates that the overall delay during this period was nine 
(9) calendar days.  While about a week was initially lost 
during the excavation around column 12’D’ for an 
emergency repair and investigation, work quickly resumed 
on the Composite Shop.  The schedules indicated that the 
protracted demolition of the existing slab on grade delayed 
the start to the excavation and backfill activities for the 
composite shop foundation, downspout support foundation, 
dampproofing and through retained logic the completion of 

69 
 
structural steel erection at the tail dock addition.  Within 
NH07, the retained logic was effectively suspending the 
remaining steel erection work until May 6, 2016.  The 
reality was that steel erection was not restrained by any 
interior predecessor work and steel erection on the new 
hangar bay addition (tail dock) progressed through this 
time period and eliminate any project delay in NH07. 
 
(Id. at 35) 
 
239.  In Mr. McFadden’s third time period, schedule update NH07 through 
NH08, the government’s expert explained that Phase I completion slipped 24 calendar 
days and, in total, project completion slipped 22 calendar days due to excavation and 
backfill activities for the downspout support foundations (id. at 36-37).  Additionally, 
work was being performed out of sequence without prior CO approval, which was 
required by the contract specifications (id. at 37). 
 
240.  In Mr. McFadden’s fourth time period, by schedule update NH09, 
he calculated that Phase I completion slipped two days, project completion had slipped 
another four days, and that multiple activities had become critical.  Now, the Tail 
Dock Structure—Install Metal Decking activity was driving the critical path but it was 
not shown in appellant’s critical activities schedule.  (R4, tab 60.000 at 41)  This 
activity was tied into other activities which also became critical (R4, tab 60.000 
at 42-43).  
 
241.  Mr. McFadden’s report also again addressed the Column 12’D’ repair in 
this section.  The report explained that Modification No. P000001 was issued on 
May 20, 2016, to provide the temporary shoring and on May 31, 2016, the government 
provided planning designs for permanent repair because the final design was 
dependent upon the outcome of the core sample tests.  Mr. McFadden explained that 
despite the unresolved issues with column 12’D’, foundation work continued around 
the compositive shop area.  (Id. at 46-47) 
 
242.  In Mr. McFadden’s fifth timeframe, NH09 through NH10 schedule 
update, Phase I completion slipped 28 calendar days and project completion slipped 
29 calendar days.  Within the NH10 schedule update, activities driving the critical path 
were concrete, asphalt testing and inspection.   
 
While schedules indicated that inspection/testing and 
material supply activities became the drivers to the critical 
path work, other performance issues arose with 
construction tasks that included ongoing correction of 
structural steel deficiencies, concrete mix submittals, 

70 
 
material conformance issues with installed foundation 
walls and under slab conduit, and subcontractor 
availability.  These performance issues were detrimental to 
the ongoing construction of both the new tail dock 
addition, as well as construction within the existing hangar 
bay.  While non-construction activities improperly drove 
the critical path within the schedules and misrepresented 
the delay during this period, CPMI considers the time lost 
during this period the responsibility of Cutter for the 
performance issues of its subcontractors. 
 
(Id. at 52-53) 
 
243.  In Mr. McFadden’s sixth time period, Schedule Update NH10 through 
NH11, the government’s expert opined that Phase I and project completion slipped 
another 29 days because no significant progress was made on the critical path 
activities in that time.  “The entirety of the 29 calendar day delay to Project 
Completion during this period is the result of erroneous and protracted paving 
inspection and testing activities and ready mix concrete foundation activities.”  (Id. 
at 53)  Mr. McFadden opined that the tasks were not properly tied to installation tasks 
or were “not properly statused so as to avoid becoming critical path activities” (id.).  
He further opined that, “[w]hile non-construction activities improperly drove the 
critical path within the schedules and misrepresented the delay during the period, 
CPMI considers the time lost during this period the responsibility of Cutter for the 
continued performance issues of its subcontractors” (R4, tab 60.000 at 57. 
 
Specifically concerning the fire protection subcontractor for the fire pump, 
Mr. McFadden summarized that Cutter submitted CCOR 253-021 on August 25, 2016, 
requesting to downsize the fire pump after raising concerns in earlier RFIs.  Appellant 
submitted a value engineering cost proposal with provided a net credit of $26,315.  
However, the government could not approve the cost savings until electrical work was 
addressed, and informed appellant of that fact on September 16, 2016.  On October 11, 
2016, the government provided a design to address the electrical work.  Mr. McFadden 
opined that Cutter and RECON measured the fire pump delay issue from October 1, 
2016, and assumed that the fire pump issue caused the entire delay but disregarded that 
the fire pump was not on the critical path and “ignored the installed work deficiencies, 
slow progress and material conformance issues of Cutter and its subcontractors that 
had impacted critical path work during the project.”  (Id. at 65) 
 
244.  In its seventh time frame, Schedule Update NH11 through NH13, 
the Phase I completion and project completion slipped another 62 days.  Asphalt and 
concrete testing and inspection activities slipped 68 days but Cutter mitigated that by 
reducing the overall duration of the interior finish activities.  Mr. McFadden explained 

71 
 
that “[t]he entire 62 calendar day delay to Project Completion during this period is the 
result of the erroneous logic that forced the paving inspection and testing activities 
onto the critical path.”  (Id. at 58)  Because the tasks were not properly tied to 
installation tasks or properly statused to avoid becoming part of the critical path, the 
critical path was corrupted by the secondary support tasks (id.).  Mr. McFadden 
considered the delays to be appellant’s responsibility (id. at 64).  We agree and 
determine that the delays were Cutter’s responsibility. 
 
 Regarding the column 12’D’ issue, appellant submitted in its November REA 
that it “measured the delay for the column 12’D’ issue as the difference between the 
amount of schedule slippage prior to the discovery of the issue and the schedule 
slippage as of October 1, 2016 within schedule update NH13” (id. at 61).  
Mr. McFadden stated that appellant measured this at 153 calendar days of delay and 
appellant “assumed that the column 12’D’ issue caused the entire delay to the project, 
which disregarded the work completed in the Support Area and ignored the installed 
work deficiencies, slow progress and material conformance issues of Cutter and its 
subcontractors that had impacted critical path work during the project” (id.).  We agree 
with Mr. McFadden and find that Cutter ignored multiple causes of delay attributable 
to Cutter. 
 
Regarding the FAMNS, Mr. McFadden noted that on October 5, 2016, 
Cutter submitted a proposal to use Monaco instead of the originally specified Simplex 
System.  The location and control panel remained unchanged.  The Monaco panel 
required an additional eave-mounted antenna.  Cutter’s subcontractor had already 
begun the rough-in of the system based on the contract documents.  Neither the system 
nor installation of the panel were on the critical path at the time of the Cutter’s 
October 5, 2016 proposal.  (Id. at 64)  We agree, and find that neither the system nor 
installation of the panel were on the critical path at the time of Cutter’s proposal. 
 
Mr. McFadden noted that Cutter and RECON measured the delay for the 
FAMNS as 197 days, with an assumption that this delayed the entire project.  
However, Cutter disregarded that the rough-in of the fire alarm system or the fire 
alarm panel were not on the critical path and ignored work deficiencies, slow progress, 
and nonconformance with the specifications that impacted the critical path.  (Id. at 65)  
We agree and find that Cutter ignored other delay factors. 
 
245.  For its eighth time period, Schedule Update NH13 through NH14, Phase I 
and project completion both slipped additional calendar days because “asphalt and 
concrete testing and inspection activities were still driving the critical path with a total 
float value of -170 workdays” by NH14 (id. at 66).  While the completion date of 
asphalt and concrete testing and inspection activities slipped 29 calendar days, the 
slabs on grade complete milestone slipped just 23 calendar days, which suggested that 
the “electrical under slab activities that were driving the slabs on grade activity path 

72 
 
were progressing independently of the Support Area Slabs activity that was impacted 
by the delays to the asphalt and concrete testing activities” (id. at 66-67).  “The 
23 calendar day delay to Project Completion during this period within schedule update 
NH14 [wa]s the result of the erroneous logic that forced the paving inspection and 
testing activities onto the critical path” (id. at 67).  This caused the critical path for 
NH14 to be corrupted by the secondary support tasks (id.). 
 
246.  Further, the painting structural steel task was not properly placed in the 
schedule.  The recorded start of structural steel painting appeared to be October 3, 
2016, and was included within “the interior construction/finishes portion of the 
schedule” which caused the painting work to be out of sequence.  (Id. at 67-68)  In 
reality, the building enclosure was dependent upon the completion of field painting 
and was also mischaracterized in the schedule.  The mischaracterized painting tasks 
had no winter weather restrictions where the specification stated the exterior paint of 
the structural steel had a temperature range restriction of 50 to 95 degrees.  (Id. at 68) 
 
247.  Mr. McFadden also reviewed the impact of column 12’D’ Repair, Under 
Slab Electrical Conduit, Grade Beam, and Trench Drains (id. at 68-75). 
 
Regarding the grade beam, Mr. McFadden stated that Cutter submitted an 
inquiry on October 13, 2016, via “RFI #188 which inquired about the grade beam 
elevation east of column line 15’ and the elevation of the asphalt paving in the same 
area” (id. at 70).  The government responded on October 31, 2016, informing appellant 
that it “could cut down or remove the grade beam at that location to accommodate the 
new paving” (id.).  According to Mr. McFadden, it appeared that Cutter’s 
subcontractor “had already opted to vertically cut the grade beam just east of column 
line 15’ and not remove the top 8” as indicated by the contract drawings” and he 
provided a photograph, dated October 13, 2016, to demonstrate this (id. at 70-71).  
According to Mr. McFadden, the subcontractor demobilized from the project on 
October 18, 2016 (id. at 71).  
 
248.  For the trench drains, in particular, Cutter requested an extension to 
continue placing concrete throughout the winter season within a heated hangar, from 
October 15, 2016 to November 18, 2016 (R4, tab 60.000 at 72-73).  The COR, Tetra 
Tech, and Cutter discussed the requirement for rebar and the width of the trench drains 
(id. at 73-74).  However, Cutter did not comply with the rebar requirements, even 
though the discussion included that rebar was required for either cast-in-place or 
modular trench drains, which caused a work stoppage (id. at 74) 
 
249.  Mr. McFadden’s report considered the time lost for problems with the 
trench drains to be Cutter’s responsibility (id. at 74-75).  “While the schedules 
continued to indicate that inspection/testing activities were the drivers to the critical 
path work, other performance issues continued with the slow progress of foundation 

73 
 
work, non-conforming work with the trench drain installation and the painting of the 
structural steel prior to enclosure [none of which were] addressed within the 
contemporaneous schedules” (id. at 74).  We agree with Mr. McFadden and find the 
lost time for the trench drains were Cutter’s responsibility. 
 
250.  For the ninth timeframe, Schedule Update NH14 through termination, 
Mr. McFadden opined that Phase I completion had slipped another 56 calendar days 
and project completion had slipped 57 calendar days (id. at 75).  Mr. McFadden 
opined that the fire alarm panel was unresolved in November and December 2016 
prior to termination but was not on the critical path during schedule update NH13 and 
remained off the critical path schedule update NH 16 (id. at 85).  Erroneous logic in 
the schedule update pushed construction administration and paving inspection and 
testing activities onto the critical path, as previously noted (id. at 75).  Further, the 
critical path for NH16 was corrupted by the secondary tasks (id. at 75-88). 
 
251.  Regarding ACM dust, according to Mr. McFadden, Cutter notified the 
government of the results of a dust sampling test on November 23, 2016.  The 
sampling test was performed on September 8, 2016, and a laboratory analysis was 
completed on September 22, 2016, indicating the presence of asbestos and heavy 
metals in the dust at four locations within the roof support beams.  Work had 
continued through November after the laboratory analysis was complete.  Still, 
appellant asserted that the slippage was from October 1 through December 29, 2016.  
Appellant’s alleged delay disregarded other work being completed during this period 
due to shutdowns due to temperature restrictions of weather sensitive work.  (Id. 
at 86-88) 
 
252.  Regarding appellant’s contention that the insulated wall panels also 
caused delay, Mr. McFadden’s report explained that on September 16, 2016, Cutter’s 
metal panel subcontractor notified appellant about a problem with the drawings that 
impacted the attachment and size of the translucent wall panels.  On September 22, 
2016, Cutter coordinated with its translucent panel supplier to determine if the size 
could change, and the subcontractor responded that it could but it would require a cost 
increase.  On September 30, 2016, Cutter notified the government about the dimension 
issue.  The government and the A&E contractor considered a solution that would 
resolve the issue without the additional cost.  (Id. at 88-89) 
 
“On an October 6, 2016 conference call, the architect presented the simplified 
solution with angles attached to the existing girts to extend the bearing surface inward 
at the translucent panels, without making modifications to the existing girt steel” (id. 
at 89)  The design was also sent to appellant on the same date.  Cutter acknowledged the 
design.  On October 7, 2016, Cutter’s metal panel subcontractor confirmed that it had 
completed the revised cut list for the adjacent metal wall and the panels were ready to be 
fabricated.  (Id.) 

74 
 
 
On October 12, 2016, Cutter discussed changes with the translucent panel 
subcontractor, exchanging communication that jamb details were never installed, 
detailed, or fabricated.  That same day, the subcontractor informed Cutter that all of 
the details concerning drawing S-516 were excluded from the subcontract.  “Those 
details included the translucent panel jambs, door frames (2 each) and louver frames 
(10 each) that attached to the structural steel at the tail dock addition.”  (Id. at 89-90) 
During October and November, more communication occurred between appellant and 
the government to discuss the girt elevations and spacings.  On December 15, 2016, 
appellant executed a change order to install the missing jambs at the translucent wall 
panels.  Cutter did not provide the government with any cost proposals about this prior 
to the termination.  (Id. at 90) 
 
 Mr. McFadden pointed out that Cutter waited two weeks to formally notify the 
government of the problem.   Cutter chose a more complicated design.  “Then, after 
weeks of discussion, the resolution ultimately reverted back to the simplified design 
that the architect had conceived the same day of the notification.  The alleged delay 
also disregards the progress of other work during this period and the status of the 
project at termination, as the building enclosure and airfield paving work had been 
shut down due to temperature restrictions on weather sensitive work.”  (Id. at 90) 
 
253.  More broadly, in the conclusion of his report, Mr. McFadden opined, 
“Within the REAs, Cutter has formulated its claimed costs around compensable delay 
and its complaint allegations around an improper termination for default” (id. at 91).  
He further  stated that Cutter did not incur the extended general conditions costs 
associate with the delays and that Cutter’s delay methodology was faulty.  
Specifically, “Cutter and RECON’s delay methodology ignores critical path method 
schedule analysis by attributing the entire alleged delay for each issue as the difference 
between the project completion date before the issue arose and after the issue was 
complete (or at termination).”  (Id. at 91)  He argued that Cutter did not make any 
effort to determine if or when an issue became critical and that RECON explained the 
delays as concurrent.  He further opined that the reality may have been that the activity 
delay had no correlation with the project delay because other items were controlling 
the critical path.  (Id. at 91)   
 
We agree with Mr. McFadden’s analysis about Cutter ignoring the critical path 
and find that Cutter failed to demonstrate that the delays they claimed were on the 
critical path. 
 
254.  One of the major flaws in Cutter’s delay analysis was associated with 
concrete pavement, where specification section 32 13 11, subsection 3.3.4 addressed 
restrictions on cold weather (id.)  Cutter’s lack of establishing a winter calendar to 
exclude airfield paving between October 15 and April 15 was detrimental to its 

75 
 
performance because it pushed paving into the Spring of 2017 (id. at 91-92).  The 
work moved into the exclusionary winter period as the schedule began to slip and 
caused 71 calendar days of delay for five activities:  139 Place & Finish Slab on Grade 
– Tail Dock; 145 Place & Finish Slab on Grade – Exist Hangar Bay; 10169 Pour Slabs 
on Grade; 154 FRP Aircraft Apron Pavement; and 70121 Site Concrete/New Apron.  
(Id.)  We find that Cutter failed to account for the cold weather restricted period and 
caused the delay in these areas.   
 
255.  Mr. McFadden also opined that “the schedule projection for the corrected 
NH10 schedule pushed the start of finishes for the hangar into the spring of 2017 and 
introduced another 169 calendar days of delay for the performance of work through 
July 1, 2016, over the flawed NH10 schedule” (id. at 93).  This is significant because 
Cutter’s schedules should have indicated by July 1, 2016, that the finish work for 
Hangar 253 was already being pushed into the spring of 2017.  Based on this, “the 
issues that arose between July and December 2016 would not have impacted the 
completion date, as finish work would not commence until spring of 2017 and months 
of float were available to resolve the alleged delay issues within the Cutter REAs that 
arose in the second half of 2016.”  (Id. at 93) 
 
256.  Overall, Mr. McFadden opined that appellant caused 301 days of delay 
according to the baseline schedule between when Phase 1 of the contract should have 
been completed and what would have been completion of the contract, which included 
the 71 days of delay from schedule update NH08 and 169 days of delay from schedule 
update NH10.  (R4, tab 60.000 at 143)  As discussed above, we find Mr. McFadden’s 
analysis to be more persuasive than Cutter’s and hereby adopt his findings on delay as 
ours. 
 
THE PARTIES’ BRIEFED POSITIONS 
 
A.  The Government’s Post-Hearing Brief 
 
The government essentially followed the termination notice in its position.  It 
outlined five reasons for the termination for default:  1) appellant failed to adequately 
investigate the site conditions which led to what appellant classified as design 
deficiencies; 2) appellant failed to conduct adequate inspections of its own 
construction, leading to deficiencies that required repair; 3) appellant conducted 
shoddy workmanship; 4) appellant provided worthless schedules which both experts 
recognized and addressed; and 5) the CO lost confidence that appellant could complete 
the contract in the time provided (gov’t br. at 99-100).   
 
The government reviewed the burdens for both parties.  The government also 
summarized testimony provided by the various witnesses.  (Id. at 101-06)  The 
government heavily relied upon ECC CENTCOM Constructors, LLC, ASBCA 

76 
 
No. 60647, 18-1 BCA ¶ 37,133 to demonstrate that it met the burden of proving 
appellant did not perform in a timely manner so the burden shifted to appellant to 
demonstrate that non-performance was excusable (id. at 101-02).  The government 
argued that Cutter is similar to the appellant in ECC CENTCOM because the Board 
noted that it believed it was ‘“unlikely that a time extension request covering only a 
fraction of the time needed to complete would have any effect on the outcome’” (id. 
at 102 (quoting ECC CENTCOM, 18-1 BCA ¶37,133 at 180,715).  The government 
also noted that in ECC CENTCOM, the Board found that the contracting officer 
performed the evaluation factors in FAR 49.402-3(f) but that those factors were not a 
prerequisite to accomplish a valid termination for default (id.).  The government also 
relied upon MOQA-AQYOL JV, LTD., ASBCA Nos. 57963, 60456, 17-1 BCA ¶ 36,909 
at 179,826 and Donald L. Mooney Enters., LLC, ASBCA No. 60574, 18-1 BCA 
¶ 36,941 at 179,969.  The government argued it had several reasons to terminate the 
contract.  (Id. at 102-04) 
 
The government contended that it had met the prima facie case for a termination 
for default because “appellant failed to complete work on time; failed to proceed with 
work after the government rejected appellant’s proposed changes to the project; and 
failed to furnish some submittals and failed to gain approval over other submittals” (id. 
at 106). 
 
The government then summarized how appellant failed to follow terms and 
conditions of the contract (id. at 107-09).  This essentially followed the contracting 
officer’s termination for default notification. 
 
The government argued that Mr. Berner selectively analyzed delay without 
analyzing delays caused by appellant (id. at 111-13).  Additionally, the government 
urged us to give no weight to Mt. Berner’s analysis because he utilized impacted 
methods to justify the critical path when “[i]t is well established that this method is of 
little value” (id. at 113-14 (citing Titan Pacific Cons. Corp. v. United States, 17 Cl. Ct. 
630, 637-38 (1989), aff’d 899 F.2d 1297 (Fed. Cir. 1990) (Table)).  The government 
continued to criticize the expert report and schedule (gov’t br. at 114-17). 
 
Regarding the specific amount of time required to complete the project, the 
government argued, “The record in this case shows that by the summer of 2016, 
completion of this project was already pushed from February into the Spring of 2017, 
and the issues that arose between July and December 2016 would not have impacted 
the completion date” (gov’t br. at 119). 
 
The government argued that Cutter’s expert used an “as-planned” analysis and 
“cherry-picked two issues and inserted them back into the schedule to argue that they 
altered the critical path” (id.).  The government argued that expertise was not needed 
to see the flaws in appellant’s expert.  The government further argued that Cutter’s 

77 
 
expert reports by RECON included in the REAs were also not compelling because 
RECON based its report on a schedule that was not approved by the government.  (Id.)   
 
In contrast, the government argued that its expert fully explored the critical path 
and then tracked it through each of the schedules that Cutter submitted.  The 
government argued that by summer 2016, completion was already pushed from 
February to the spring of 2017.  The government argued it was justified in its decision 
“because it had justifiably lost faith in both appellant’s ability to timely complete the 
project and appellant’s ability to complete the project in accordance with the Contract 
requirements.”  (Id.) 
 
The government requested the Board deny ASBCA Nos. 61020 and 61146 
related to the termination for default; dismiss as moot the delay claims in ASBCA 
Nos. 61021, 61061, and 61278, and deny the breach claims in ASBCA Nos. 61021, 
61061, and 61278 (id. at 120). 
 
B.  Cutter’s Post-Hearing Brief 
 
Cutter argued that it “demonstrated entitlement to an excusable time extension 
of at least 299 days.”  (App. br. at 1)  Appellant argued that the government failed to 
respond to its concerns and ignored design errors (id.).  Cutter argued that it resolved 
every alleged issue concerning workmanship (id.). 
 
 Appellant’s first main argument was that there was an inherent unfairness in the 
way Cutter was treated during the contract, including that Civil Engineering and the 
COR seemed to be overly critical of Cutter and design issues on the part of the 
government or design contractor.  Citing an unpublished Court of Appeals for the 
Federal Circuit case, appellant argued that the Board “must draw an adverse inference” 
because the contracting officer did not testify even though he attended the entire 
hearing.  (Id. at 2-3 (citing White Buffalo Const., Inc. v. United States, 546 F. App’x 
952, 956) (Fed. Cir. 2013))
8 
 
Appellant reviewed the burdens for each party and concluded the government 
did not meet its burden to demonstrate that the termination was appropriate because 
the government failed to determine whether appellant could complete its work within 
the time remaining in contract performance and that the government used the default 
termination to rid itself of having to deal with appellant.  Appellant further contended 
that even if the Board determined that the government’s actions were appropriate, 
Cutter had demonstrated that the delays were excusable and thus the termination 
 
8 White Buffalo does not, in fact, say this.  Rather, it makes the exact opposite point, 
which is that the adverse inference is permitted, but not required.  See 546 F. 
App’x at 956.   

78 
 
should be converted to a termination for convenience.  (App. br. at 3-9)  Specifically, 
while summarizing the reasons it believed Cutter was terminated, appellant opined, 
“The [g]overnment found the scapegoat for defective design in Cutter” (id. at 7). 
 
Appellant pointed out that Cutter resolved alleged problems with workmanship 
prior to the government’s termination for default and should not be held accountable 
for those items.  Appellant detailed those issues essentially as Cutter did in its 
communication with the government as outlined in the Facts section, above.  (Id. 
at 9-11) 
 
Appellant argued that it was entitled to a 299-day excusable delay and listed the 
following bases for that contention:  1) FAA permit delays (46 days); 2) column 12’D’ 
unforeseen conditions delays (at least 293 days); 3) unforeseen Building 253 conduit 
severing caused delay (at least 150 days); 4) fire suppression system design conflict 
delays (at least 295 days); 5) FAMNS vendor change (at least 305 days); 6) grade beam 
design conflicts and changes (at least 126 days); 7) insulated metal wall panel design 
conflict delays (at least 256 days); 8) trench drain design conflict (at least 181 days); 
and 9) discovery of contaminated settled dust (at least 143 days) (app. br. at 12-19). 
 
Appellant also explained why it believed it was entitled to an excusable delay 
based on an analysis of its own expert and criticisms of the government’s expert.  
Specifically, appellant criticized the government’s expert because he “did not follow 
the AACE Recommended Practice No. 29R-03 Forensic Schedule Analysis in 
preparing the CPMI Report (A397)” and detailed what it found as problematic (id. 
at 20-21).   
 
Appellant closed by requesting the Board not consider any post-termination 
issues in deciding the appeals (id. at 22-27). 
 
C.  The Government’s Response 
 
The government responded to appellant’s opening brief, acknowledging it had 
the initial burden of proving the termination was appropriate and pointed to the 
termination notice the contracting officer sent, the government’s pleadings, the  
pre-hearing brief, and the opening post-hearing brief as documentation for why it 
believed it had met that burden.  The government stated, “Simply put, the most 
straightforward reason for termination was appellant’s inability to complete the 
contract within the time remaining.”  (Gov’t resp. at 2) 
 
The government reviewed again the five reasons for the termination for default 
(id. at 3).  The government then argued that post-termination issues were appropriate 
to consider and discussed why it believed appellant’s cited caselaw was insufficient to 
overcome such consideration (id. at 3-6). 

79 
 
 
The government then largely followed its opening brief to address appellant’s 
arguments (id. at 6-37).  The government conceded that many workmanship issues 
were resolved prior to termination but explained that the issue was not that they were 
resolved eventually.  Instead, the issue was that the government had to point them out 
and argue about how to resolve the situation before the issues would eventually be 
resolved.  (Id. at 7)  The government again provided detailed explanations of each of 
those situations (id. at 8-12). 
 
Next the government reviewed again why the delays to which Cutter thought it 
was entitled were not excusable (id. at 12-28).  The government responded to 
allegations appellant raised such as the B253 Conduit Severing where appellant sought 
a 137-day excusable delay.  The government stated that if appellant had simply 
followed the specifications, it would not have had the issue.  “Instead, appellant over-
excavated the area leading to the severing of the conduit . . . .”  (Id. at 18)  Further, the 
government responded to allegations that the government did not help appellant get 
pricing from a subcontractor for the fire alarm vendor change; however, the 
government pointed out that there was no evidence that appellant ever requested such 
assistance and only requested contact information (id. at 22).  The government also 
pointed out that in several instances, the amount of delay appellant requested was far 
greater than the amount of excusable delay initially requested (id. at 20- 24, 27-28). 
 
The government addressed appellant’s assertion that its expert did not rebut 
appellant’s expert.  The government responded, “There was no reason to attack his 
testimony at hearing because it should be afforded no weight, as borne out by the 
facts.”  (Id. at 29)  The government pointed out that Mr. Berner had never testified 
before the Board.  Further, the government criticized, again, Mr. Berner’s impacted  
as-planned methodology as being of limited value.  (Id.) 
 
In contrast, the government summarized why its expert was more reliable.  
The government explained why the Board should not be swayed by appellant’s 
argument that Mr. McFadden did not follow AACE Recommended Practice No.29R-
03.  Specifically, the government argued that Mr. McFadden explained at the hearing 
that this recommended practice is simply a recommendation, not a requirement.  The 
government pointed out that its expert was a member of AACE and the American 
Society of Civil Engineers.  The government also pointed out that both expert reports 
had limitations because of the problematic schedules.  (Id. at 30)  The government then 
argued that its expert’s analysis precluded a finding that appellant was entitled to an 
extension, especially because neither the schedule nor Mr. Berner took into 
consideration work precluded by the winter moratorium, which ran from October 15, 
2016 through April 15, 2017.  Thus, regardless of any delay issues with column 12’D’ 
or other issues, appellant caused or contributed to many of the delays based on the 
winter moratorium.  (Id. at 31)  The government contended that if it had allowed 

80 
 
appellant to continue working during the remaining time in the winter moratorium, 
105 days, it likely would have reduced its amount of delays but not eliminated them; 
however, the entire argument was speculative and subjective because appellant simply 
failed to properly maintain its schedules. 
 
The government closed by addressing issues the Board should consider that it 
found post-termination (id. at 32-37).  The government contended the following: First, 
Cutter failed to tighten bolts in accordance with government direction to only use turn 
of nut method in places where the Torsion Control wrench could not be used.  The 
government discovered that the next contractor was able to use a Torsion Control 
wrench to tighten some bolts and some were not tightened sufficiently (id. at 33-34); 
 
Second, Cutter improperly installed metal decking, leaving gaps when the 
specification called for butted ends or end laps with minimum overlap (id. at 34); 
 
Third, Cutter did not achieve proper soil compaction.  The follow-on contractor 
had to excavate, bring in new material, and compact the soil again (id.); 
 
Fourth, the government was required to secure Building 253, even though 
appellant’s own third party inspection identified rusted bolts as early as June 23, 2016 
(id. at 35); 
 
Fifth, there were issues with the lintel bearing plates in Building 254 because 
there were visible cracks in the walls (id.); 
 
Sixth, the underslab conduit was improperly installed (id.); 
 
Seventh, the steel girt was misaligned, which a licensed surveyor verified after 
termination (id. at 36);  
 
Eighth, Cutter did not properly demolish the grade beam, concerning the 
thickness and levelness of the grade beam removal.  The follow-on contractor had to 
perform remedial work to correct the issue.  (Id.); and 
 
Ninth, the government argued that the trench drain sewer line and the footing 
alignment were two more examples of appellant’s poor workmanship (id. at 36-37). 
 
D.  Appellant’s Post-Hearing Reply 
 
Appellant remained firm in its opinion that it was entitled to an excusable time 
extension of at least 299 days.  It argued that bad faith by the government was the 
problem.  Appellant reiterated its argument that the government failed to meet its 
burden to demonstrate that the termination for default was appropriate, arguing that the 

81 
 
government’s case relied upon three CORs and again stated that an adverse inference 
“must” be drawn because the contracting officer and members of the design team did 
not testify.  Appellant’s reasoning for this was the internal disputes between 
government agencies and the design contractor.  (App. reply at 2-3) 
 
Appellant stated that Cutter complied with FAR 52.236-03, Site Investigation 
and Conditions Affecting the Work, and argued that the Government is expecting the 
Board to overturn Spearin’s 100-year legacy which “provides that if a government 
contract contains detailed design specifications, as opposed to performance 
specifications, the government gives an implied warranty that if the specifications are 
followed an acceptable result will be produced” (app. reply at 3-4 (quoting Rick’s 
Mushroom Serv., Inc., v. United States, 521 F.3d 1338, 1344 (Fed. Cir. 2008))).  
Appellant stated Cutter did conduct reasonable investigations and discovered several 
issues but not all of them (app. reply at 4). 
 
Appellant also argued that it followed FAR 52.246-12, Inspection of 
Construction, because it corrected all six workmanship issues prior to termination.  
Appellant complained that the government relied upon post-termination work the 
government completed to fix items that Cutter could have easily fixed if it had not 
been terminated.  (Id. at 6-7) 
 
Appellant also asserted that it complied with FAR 52.236-5, Material and 
Workmanship by stating that the CORs were unreliable as witnesses to testify about 
these issues (id. at 7-8). 
 
Appellant also opined that it complied with FAR 52.236-15, Schedule for 
Construction Contracts, because Cutter submitted and the government approved the 
schedule, which was then updated monthly.  Appellant stated that it is disingenuous 
for the government “to blame Cutter for not tracking each and every individual 
impact.”  (Id. at 8)   
 
Next, appellant stated the government’s caselaw was not applicable and was 
distinguishable from these appeals.  Appellant stated the government’s reliance on 
EccCentcom Constructors, LLC, 18-1 BCA ¶ 37,133 had at least three material 
distinctions from these appeals:  1) the contractor had completely missed the delivery 
date (not anticipatory); 2) the government in these appeals admitted it did not retain a 
scheduler to perform a schedule analysis for Claim 1 or analyze time extension 
requests; and 3) the government interpreted Cutter’s time extension requests as 
admissions that work could not be completed on time.  (App. reply at 10)   
 
Appellant instead suggested the Board follow Lisbon Contractors, Inc. v. 
United States., 828 F.2d 759 (Fed. Cir. 1987) where the Court of Appeals for the 
Federal Circuit affirmed the Court of Federal Claims decision that the government 

82 
 
wrongfully terminated the contractor for default.  Appellant opined that the 
government was required to, but did not, “undertake a study to determine whether the 
contractor could complete the work within the required time or determine how long it 
would take a follow-on contractor to do the work.”  (App. reply at 10-11 (quoting 
Lisbon, 828 F.2d at 766)  Further, appellant argued that the government did not present 
any evidence showing the amount of time the government thought it would take for 
Cutter to complete the work. 
 
Appellant also reviewed other caselaw the government cited and argued why it 
was distinguishable from these appeals (app. reply at 11-14). 
 
Appellant argued that it demonstrated that it was entitled to excusable delay 
because “the [g]overnment failed to proffer credible evidence demonstrating that 
Cutter delays impacted the critical path” and that any delays for which Cutter was 
responsible were either not on the critical path or were concurrent with government 
delay (id. at 14).  Appellant argued the FAA permit delays, hazardous dust abatement 
delay, metal wall panel design conflict delay, grade beam delay, trench drain delay, 
painting delays, column 12’D’ unforeseen conditions delay, and Building 235 
underslab conduit delay were instances of the concurrent or government-caused 
delays.  (Id. at 14-20) 
 
Appellant contended that it provided the government with timely written notice 
of the excusable delays.  Appellant alleged that instead of addressing the timely 
communication, the government terminated without responding to the first claim or 
providing reasonable extensions for unforeseen conditions and for design deficiencies 
that impacted the critical path.  Again, appellant explained several areas that it 
believed adequate notice was provided, including FAA permit delay, column 12’D’ 
delay, Building 253 underslab conduit sever, fire suppression system delay, fire alarm 
mass notification system delay, grade beam delay, metal wall panel delay, trench drain 
delay, and contaminated settled dust delay.  (Id. at 20-23) 
 
Finally, appellant reviewed why the Board should consider its expert with 
substantial weight.  Appellant stated the Board has accepted the impacted as-planned 
analysis in other appeals and was an appropriate methodology.  (Id. at 23-27)  Appellant 
again criticized the government’s expert, stating his analysis was “fatally flawed” (id. 
at 27). 
 
DECISION 
 
The legal standards are well-established in termination for default appeals.  The 
termination for default clause, incorporated by reference into the contract (see finding 
¶ 8) states in relevant part that: 
 

83 
 
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 . . .  that has been delayed. 
 
FAR 52.249-10(a).  The clause further states that a contractor’s right to proceed shall 
not be terminated:  1) if the delay arose “from unforeseeable causes beyond the control 
and without the fault or negligence of the Contractor,” such as acts of God, acts of the 
government, unusually severe weather, etc.; and 2) the contractor notified the 
contracting officer of the delay and the causes of the delay within 10 days of the 
beginning of a delay, in writing.  FAR 52.249-10(a)-(b).  (emphasis added).  “The 
government bears the burden to prove that its termination was justified.”  ECC 
CENTCOM Constructors, LLC, 18-1 BCA ¶ 37,133 at 180,711 (citing Lisbon 
Contractors, Inc. v. United States, 828 F.2d 759, 764 (Fed. Cir. 1987)); New Era 
Contract Sales, Inc., ASBCA No. 56661 et al., 11-1 BCA ¶ 34,738 at 171,022.  If the 
government meets its burden of demonstrating that the contractor has not performed in 
a timely manner, the burden shifts to appellant to demonstrate that the nonperformance 
was excusable.  ECC CENTCOM Constructors, LLC, 18-1 BCA ¶37,133 at 180,711 
(citing DCX, Inc. v. Perry, 79 F.3d 132, 134 (Fed. Cir. 1996)). 
 
“In default cases involving a contractor’s failure to make sufficient progress, 
the government may justify the termination by demonstrating that there was no 
reasonable likelihood that the contractor could complete the entire contract in the time 
remaining for performance.”  MOQA-AQYOL JV, LTD., 17-1 BCA ¶ 36,909 
at 179,826.  If the government meets its burden to prove the termination was justified 
and the burden shifts to appellant, appellant must demonstrate that it would have 
finished the project in the time allocated to any excusable delays.  See id.   
 
In addition to timeliness issues, other material breaches of the contract may also 
support a termination for default.  Quality Trust Inc., ASBCA No. 59983, 16-1 BCA  
¶ 36,368 at 177,276 (citation omitted).  Thus, in MOQA-AQYOL, in which we were 
presented with evidence of “an across the board failure of [the contractor] to meet its 
contractual obligations”, we reviewed multiple cases from the Board and other venues 
where poor performance manifested in such things as failure to provide a specified 
roof and to correct deficiencies, poor performance and inadequate quality control and 
other chronic problems justified default determinations.  17-1 BCA ¶ 36,909 
at 179,826 (citations omitted).  Moreover, “[t]he government need only prove one 
sufficient basis for the termination for default.”  Id. (citing Quality Trust Inc., ASBCA 
No. 59983, 16-1 BCA ¶ 36,368). 
 

84 
 
For the reasons set forth below, we have determined that the government 
demonstrated that the termination was justified.  Further, we have determined that 
Cutter did not demonstrate that the delays were excusable or attributable to the 
government once the burden shifted. 
 
I.  The Termination Was Proper 
 
 Here, the government met its burden to prove the termination was justified for 
multiple reasons:  1)  Cutter failed to provide the appropriate level of project 
management and quality control, leading to delays; 2)  Cutter did not follow 
specifications on multiple occasions; 3)  Cutter did not maintain adequate schedules 
which led to a failure to maintain, or even identify, a critical path; and 4)  Cutter failed 
to provide assurances or any explanations for the delays to allow the contracting 
officer to understand why they happened or how they would be prevented in the 
future.  These reasons largely echo those which we saw MOQA-AQYOL and justified 
the default there.  See 17-1 BCA ¶ 36,909 at 179,828 (citations omitted).  As 
demonstrated below, Cutter was approximately 8 months, or approximately 240 days, 
behind schedule by the time of the termination.  Further, even if we had not found 
Cutter responsible for the substantial delays here, its repeated failure to follow the 
specifications would have provided an independent basis for us to rule for the 
government, that the termination was justified.  See Quality Trust, 16-1 BCA ¶ 36,368 
at 177,277 (“[T]he government need only prove one sufficient basis to justify its 
termination for default.”). 
 
A.  Cutter Failed to Provide the Appropriate Level of Project Management 
 
Similar to the situation in MOQA-AQYOL, the record here indicates that Cutter 
did not have the project level management necessary to successfully perform this 
contract in the time allotted.  MOQA-AQYOL JV, LTD., 17-1 BCA ¶ 36,909 
at 179,829.  As early as December 2015, the COR expressed concerns with Cutter’s 
Quality Control Manager and that the Site Superintendent had been replaced (finding 
26).  The COR estimated that Cutter was already three percent behind schedule at this 
early date but could not provide a definite estimate without an approved schedule (id.).  
As late as November 17, 2016, Cutter noncommittally agreed it would be “attempting 
to bring another team member on board by the end of the year” to assist with quality 
control (finding 79). 
 
The government expressed concerns about mismanagement several times 
throughout the performance of the contract (see, e.g., findings 26-27, 70).  Further, 
government witnesses testified about the mismanagement (see, e.g., findings 138, 165, 
171).  While the government conveyed concerns about the project manager to Cutter 
and Mr. Dwyer, the project manager was partially ineffective because he was not 

85 
 
allowed to make decisions.  When Mr. Dwyer was on site, he acted as the project 
manager instead of as the CEO.  (Finding 138) 
 
Some of the problems with Cutter’s management were reflected in its handling of 
the submittal packages.  Submittal packages were frequently late which caused 
government reviews to become emergencies.  (Finding 145)  Further, Cutter used the 
RFI system to argue with the government and object to specifications frequently 
(finding 139). 
 
Management problems were also evident when the government discovered that 
Cutter caused a 10-day delay by failing to execute a geotechnical firm and perform 
tests on the subgrade soils.  Cutter ultimately replaced its site supervisor responsible 
for this failure due to concerns about his experience and knowledge.  (Finding 158)  
His experience and knowledge should have been known by Cutter before it placed him 
in his position of responsibility. 
 
Additionally, management problems were evident in that appellant relied upon 
the government inspections to discover discrepancies rather than finding them itself.  
This was a significant problem because government personnel and inspectors were not 
on the site at all times (finding 148).  For example, it was the government, not Cutter, 
which found the problem with the conduit hit in Building 254 (finding 147).  It was 
also the government, not Cutter, which discovered the discrepancy of Cutter using 
4,000 PSI concrete instead of the 5,000 PSI concrete that was required by the contract 
(finding 148). 
 
We credit the testimony of the Base Civil Engineer who stated that Cutter did 
not manage its subcontractors appropriately and that its practice of only hiring one 
subcontractor at a time instead of working on multiple portions of the contract with 
multiple subcontractors negatively affected its ability to get work done in a timely 
manner.  (Finding 171) 
 
Finally, other evidence of mismanagement occurred because Cutter personnel 
across the board were not at the job site when they were expected to be present.  One 
example, previously mentioned, was that Cutter’s Quality Control Manager did not 
know that the conduit was cut in Building 254, indicating that he was not on site at the 
time (finding 147).  In fact, the government officials complained that they most 
frequently saw the Quality Control Manager sitting in his office instead of being on the 
site to discover any inconsistencies (findings 147, 171).  Further, as found above, work 
was “at a standstill” in December 2016 due to the absence of subcontractors on site 
that month  (finding 155); and Cutter demonstrated a significant lack of urgency in this 
behind-schedule construction contract in that workers left at 3:30 p.m. every Monday 
through Thursday and at noon on Fridays, and declined to work weekends though it 
had the option to do so.  (Finding 165)   

86 
 
 
This mismanagement thus played a large part in causing delays and limiting 
Cutter’s ability to take action to remediate them.  Hence, as early as October 30, 2015, 
Ms Bogue wrote a letter to Cutter informing the company that it was 30 days behind 
schedule (finding 144).  Major Trembley annotated in COR Monthly Reports the 
continuously slipping schedule (findings 30 (10% or 45 days behind by  
February 2016); 31 (two months behind by March 2016); 32 (three months behind by 
May 2016)).  By April 2016, Major Trembley stated that Cutter was 78 days behind 
schedule for Building 253 and 74 days behind schedule for Building 254 (finding 164).  
By June 2016, Cutter was approximately six months behind schedule (findings 33, 
166).  In July 2016, Major Trembley documented in his COR Monthly Report that 
Cutter was 34%, or more than six months, behind schedule (finding 34).  By the 
summer of 2016, the schedule slipped another three weeks in one month and somehow 
five weeks in a four-week month (finding 168).  By the end of summer 2016, after 
considering all of the delays the government testified about, Cutter was approximately 
eight months, or approximately 240 days, behind schedule (findings 30-34, 144, 164, 
166, 168). 
 
B.  Cutter Did Not Follow Specifications on Multiple Occasions 
 
Cutter failed to follow contractual requirements and specifications on multiple 
occasions and the government addressed this early in contract performance, informing 
Cutter of the problem, in writing, as early as November 2015 (finding 24).  The CO 
again addressed the issue of Cutter not following the specifications in December 2015 
(finding 27).  In his February 2016 COR Monthly Report, the COR downgraded 
Cutter’s quality of work to “marginal” and noted that the column line 1 footing depth 
was out of tolerance (finding 30).  In his March 2016 COR Monthly Report, the COR 
noted that the government was concerned about the underslab conduit (finding 31).  In 
his May 2016 COR Monthly Report, the COR continued to annotate his concerns with 
Cutter’s lack of adherence to the specifications (finding 32).  In his June 2016 COR 
Monthly Report, the COR again downgraded his rating of Cutter’s performance to 
unsatisfactory because of failure to follow the specifications (finding 33).  In his July 
2016 COR Monthly Report, the COR continued to document Cutter’s failure to follow 
specifications (finding 34).   
 
Further, the contracting officer sent another letter of concern to Cutter on July 1, 
2016, addressing lack of adherence to specifications (finding 55).  On October 26, 
2016, the CO sent a cure notice to Cutter, warning that its failure to adhere to plans and 
specifications endangered performance of the contract (finding 70).   
 
While the government attempted to work with Cutter on complaints it had with 
the specifications, Cutter excessively used the Request for Information system and 
frequently asked for changes to the specifications (finding 139).  The Base Civil 

87 
 
Engineer testified that this contract was different than any he ever worked on because 
there were arguments about the specifications and government engineers, the engineer 
of record, and the design contractor would all be saying the same thing, but Cutter 
would argue for something different (finding 173).  On occasion, the government felt 
compelled to waive compliance with the contract specifications because did not 
believe Cutter would be able to move forward if it insisted on compliance with them 9  
(findings 140, 172).  By June 2016, the COR was at the job site daily, commonly 
finding that work performed by Cutter was not compliant with the requirements of the 
drawings and specifications (finding 166).  By the July 1, 2016 Letter of Concern, the 
government expressed in writing that it had to spend hours researching alternate 
methods that Cutter requested (finding 55.g.). 
 
One of the issues that demonstrated that Cutter was not following specifications 
was the concrete pours.  Per the specification, the concrete pours were supposed to be 
between 37 and 41 inches but there were several instances of the pours being out of 
compliance.  Additionally, there were issues with rebar locations.  (Finding 159) 
 
Further, there were issues with the use of 4000 PSI concrete poured by Cutter 
instead of 5000 PSI concrete required by the contract and the government acquiescing 
to the improper type of concrete so Cutter could proceed (finding 172).  Notably, 
Mr. Dwyer admitted that Cutter failed to prosecute the pours properly.  Specifically, he 
admitted that Cutter placed 4,000 PSI concrete totaling 38 cubic yards of 4,000 PSI 
where the contract required 5,000 PSI.  (Finding 129)  Contrary to Mr. Dwyer’s 
testimony where he criticized the government for not notifying Cutter of the problem 
until the sixth pour (id.), the government was not at fault for Cutter not following the 
specifications set forth in the contract.  Instead, Cutter’s own quality assurance 
personnel should have discovered the problem before the sixth pour.  Further, even 
though Cutter eventually worked with a structural engineer to argue that 4,000 PSI mix 
was structurally acceptable (id.), Cutter still did not actually meet the specifications 
required by the contract. 
 
 
9 This is not a reflection that the waived specifications were somehow inappropriate; 
rather, that the government felt compelled to make compromises in its efforts to 
bring the project to a successful conclusion.  To be very clear:  we do not find 
the termination justified by virtue of Cutter’s noncompliance with 
specifications that were waived.  The point of our discussion here is that there 
was a gross noncompliance with the contract’s specifications which put the 
government in the position of needing to waive many of them in hopes that the 
contract could be completed, but the government did not waive anywhere near 
all of the specifications with which Cutter failed to comply. 

88 
 
The structural steel was another area that did not meet specifications because of 
misalignment (finding 162).  Problems with the underslab conduit were also examples 
of Cutter not following the specifications, particularly in Building 254 (finding 163). 
 
Ms. Bogue testified that she believed Cutter abused the request for information 
system and regularly objected to specifications (finding 139).  One of the earliest issues 
was the FOD fence, which the government conceded to use what Cutter recommended 
(finding 143).  According to Major Trembley, the government conceded to Cutter’s 
proposed fence because Cutter could not find anyone to provide one that met the 
specifications.  Because the fence was already behind schedule, he had expected Cutter 
would have initiated paperwork for the subcontractor so mobilization would occur 
immediately but Cutter did not and this caused a further delay.  (Finding 157)  
Unfortunately, Cutter’s recommended fence that did not meet the specifications caused 
problems with foreign object debris due to sand bags decaying (id.; finding 177).   
 
Major Trembley testified that he pointed out an incorrect lintel installed over a 
wide door opening and that Cutter submitted an RFI asking to use the wrong lintel.  
Before getting an answer, Cutter installed a second incorrect lintel.  (Finding 167) 
 
One of the other issues that involved the specifications was the fire suppression 
system.  The government first told Cutter to follow the specifications regarding the fire 
suppression system.  After Cutter requested three times to propose a different 
alternative, the government conceded that Cutter could choose to submit a cost 
proposal.  The government did not agree with Cutter that the design needed to be 
changed and stated so in the response to the RFI; however, it permitted Cutter to 
provide the alternative approach so it could review its viability.  The government 
provided this response on March 11, 2016, but Cutter did not submit the cost proposal 
until August 24, 2016.  While Cutter asserted the fire suppression system was one of 
the areas for which the government should be responsible for delay, Cutter was the 
party that repeatedly asked to provide something different and then filed the cost 
proposal 167 days after the government relented.  (Finding 156)  This was not delay 
that should be attributed to the government but instead delay attributed to Cutter. 
 
 After termination, the government discovered other areas Cutter failed to comply 
with the specifications.  Specifically, Cutter failed to adequately tighten bolts, had gaps 
in the installation of the pan decking, failed to compact soil, and had exterior wall 
penetrations (finding 182).  Additionally, over 1,000 bolts were hand tightened instead 
of tightened with a torque wrench (finding 187).  While Cutter was permitted to hand 
tighten bolts that could not be reached with a wrench, Vertex reported issues with the 
bolts to the government and CMSgt Bussell personally witnessed approximately five or 
six five-gallon buckets full of bolts that were removed and replaced (finding 187).  Pan 
decking was also an issue because the specifications directed installation that clearly did 
not happen correctly because light could be seen between the sheets (finding 188).  

89 
 
There were not records to indicate the soil had been properly compacted and the 
government found some areas that did not have compaction so that task had to be re-
accomplished (finding 189).  The exterior penetration issues were problematic because 
you could see daylight through the holes and any holes could damage the inside of the 
facility (finding 190). 
 
Although Cutter has argued that the termination cannot be justified by the late 
discovery of shoddy workmanship, that argument does not help it as much as it might 
like.  First, of course, this evidence adds further credence to our findings that Cutter 
was not performing its job as expected.  Moreover, it is well settled that a contract 
termination may be justified for reasons not set forth (or even known) by the 
contracting officer at the time of termination.  See Empire Energy Mgmt. Sys. Inc. v. 
Roche, 362 F.3d 1343, 1347 (Fed. Cir. 2004) (citing multiple cases). 
 
C.  Cutter Did Not Maintain Adequate Schedules Which Led to an Inability  
 to Track the Critical Path 
 
Cutter failed to maintain adequate schedules which led to an inability to track 
the critical path.  Ms. Bogue testified that neither the initial schedule nor the full 
schedule were submitted on time.  (Finding 142) 
 
The contract included FAR 52.236-15, SCHEDULES FOR CONSTRUCTION 
CONTRACTS (APR 1984) (finding 10).  That clause requires that the contractor 
submit schedules and update them as work progresses, as directed by the contracting 
officer.  FAR 52.236-15(a)-(b).  Part of the issue with the schedule from the beginning 
was a failure to address the cold weather restriction required by the contract (findings 
14, 25). 
 
The lack of an appropriate schedule, as required by the contract, was one of 
Cutter’s most damaging failures in this case.  It caused problems for both the 
government and Cutter because it was impossible for either party to track the critical 
path without an appropriate schedule.  Many of the issues involved in these appeals 
were caused by inadequate schedules, starting with the Initial Project Schedule or 
baseline schedule, as the parties referred to it throughout the record.  (Findings 21-29) 
The initial schedule was due not later than September 29, 2015, but was not submitted 
until November 2, 2015, more than a full month later than required.  (Findings 22-23)  
Approval occurred February 3, 2016 (finding 29), after several baseline schedule 
rejections (findings 21-29). 
 
The delayed schedule caused, in part, the contracting officer to send the first 
letter of concern, dated December 15, 2015.  The contracting officer expressed 
concerns with both the Project Superintendent and the Quality Control Manager and 
warned Cutter of the problems with not having an approved project schedule in place.  

90 
 
(Finding 27)  Contrary to appellant’s argument that the government appeared to want 
to terminate the contract at every turn, the contracting officer expressed these concerns 
very early during contract performance and attempted to work with the contractor to 
put the project back on a viable schedule that would be completed on time. 
 
Inexplicably, appellant refused to acknowledge the warnings expressed by the 
contracting officer.  Instead, appellant argued, in its response to the letter of concern, 
that the schedule issues were not its fault although it did agree to address issues with 
the Quality Control Manager and the Superintendent.  (Finding 28)  However, Cutter 
did not submit the next schedule until January 18, 2016 (two months after its receipt of 
the letter of concern), which the government ultimately approved on February 3, 2016 
(finding 29). 
 
Further, appellant relied upon other scheduling documentation instead of the 
contractually-mandated schedule.  In August 2016, Mr. Dwyer, Cutter’s CEO, outlined 
schedule documentation that was needed beyond the schedule required in the contract, 
arguing that determining the amount of work complete could not be accomplished by 
the contractually-mandated schedules alone.  (Finding 63)  This caused confusion and 
problems with tracking the critical path.  It also caused confusion with determining the 
amount of work completed. 
 
Mr. Dwyer also testified that he believed Cutter was further in contract 
performance than the baseline schedule demonstrated.  He testified that the 
government did not provide an actual analysis based on the schedule but only used 
Cutter’s applications for payment.  (Finding 131)  However, the government recorded 
Cutter getting further and further behind throughout contract documentation in COR 
Monthly Reports (findings 30-34). 
 
Both the government and appellant’s experts addressed the fact that the 
schedules were problematic (findings 198, 209).  Appellant’s expert chose to use an 
“impacted as-planned analysis” as a result of the schedule issues (finding 198).  The 
government’s expert testified about the problems with the initial schedule 
(findings 219-20), and his report included the problems with the baseline schedule in 
its first of nine periods it analyzed (findings 228-55). 
 
We agree with the government expert’s opinion that the flaws in the schedule 
affected the critical path and also made it difficult to assign specific delay 
(finding 219).  In particular, the aspects of the project that were restricted by the winter 
period (finding 14) were impacted by the problematic schedule, adding 71 days of 
delay attributable to Cutter (finding 254).  We agree with the government’s expert that 
“the schedule projection for the corrected NH10 schedule pushed the start of finishes 
for the hangar into the spring of 2017 and introduced another 169 calendar days of 
delay for the performance of work through July 1, 2016, over the flawed NH10 

91 
 
schedule” (finding 255).  Cutter’s schedules should have indicated by July 1, 2016, that 
the finish work for Hangar 253 was already being pushed into the spring of 2017 (id.).  
The flaws in the schedule affected the critical path and were not updated so appellant 
did not realize what work was required at certain times, forcing multiple submittals for 
the same items (findings 219-20).  We also agree with the government expert’s opinion 
that the schedule flaws existed prior to the consequential issues, which caused 
appellant’s argument regarding consequential damages to be unpersuasive and fail 
(finding 220).   
 
Further, schedule concerns continued throughout the contract which appellant 
acknowledged as well, although arguably as justification for what it deemed 
government delays.  On August 29, 2016, Mr. Dwyer sent a letter to the contracting 
officer analyzing the contractually-required CPM schedule document.  (Findings 62-63)  
Mr. Dwyer informed the government that the contractually-required schedule did not 
provide sufficient information to analyze the health of the project.  He appeared to 
disagree with using the CPM schedule throughout the letter.  For example, he ran what 
he called “fictitious” schedules to show what would happen if everything had been 
performed, and criticized what comprised the CPM schedule, making the percentages of 
completion vastly different, with his estimate being over 16% complete and the 
government’s being around 4% complete, as opposed to the 42% that should have been 
completed by that time.  (Finding 63) 
 
Another area the schedule was clearly problematic was the winter-restricted 
period.  The contract included restrictions for construction during winter months.  
(Finding 14)  Appellant did not address how any of its actions impacted the  
winter-restricted period.  As early as December 2015, while discussing the project 
superintendent’s deficient performance, the contracting officer pointed out concerns 
about the winter restrictions and their impact on the schedule (finding 27).  As the 
government expert opined, and we agree, the winter restriction impacted the schedule 
(findings 219, 221).  He also convincingly demonstrated that appellant failed to 
incorporate the restricted period, which impacted appellant’s ability to demonstrate 
delays (finding 225).  A major scheduling flaw related to the winter restriction was the 
concrete pavement.  The winter restriction pushed paving into Spring 2017 but was not 
reflected in Cutter’s schedules.  The government expert’s report demonstrated that this 
caused 71 calendar days of delay.  (Finding 254)  We find the report persuasive and 
agree with this conclusion. 
 
From the beginning, the schedule itself demonstrated problems with appellant’s 
ability to complete the project on time.  These impacted concrete paving, landscaping, 
painting, the structural steel submittal and installation, and generally being able to 
determine if consequential delays existed.  (See findings 219-20)   
 

92 
 
The government met its burden of proof for terminating the contract for default 
based on the problematic schedules because schedules were required by the contract, 
not submitted on time, not updated, and had a significant negative impact on project 
management.  Further, the schedule demonstrated that appellant was significantly 
behind schedule, approximately 240 days, which caused the contracting officer to 
conclude that there was no reasonable likelihood that Cutter could complete the work 
in the time remaining in the contract.  See MOQA-AQYOL JV, LTD., 17-1 BCA  
¶ 36,909 at 179,826. 
 
D.  Cutter Failed to Provide Assurances or Any Explanations For Delays 
 
Contrary to appellant’s argument that the government seemed to want to 
terminate from an early point in the contract, even after all of the delays, the record 
demonstrates that the government attempted to have appellant rectify the situation by 
asking Cutter to explain how it would keep further delays from happening.  The 
government asked for explanations about past delays and assurances through 
descriptions of how similar situations would be avoided in the future.  This 
encompassed CPM schedule delays, grade beam schedule delay, deficient installation 
of electrical conduit under Building 253, recurring deficient installation of electrical 
conduction underslab in Building 253 required in specification section 260543, conduit 
severed in Building 254 which was the second underslab conduit hit and impacted the 
paint booth and fire alarm system, I-Beam structural steel, vertical rebar missing, L-
Bars missing, and interior curb walls using 4,000 PSI instead of 5,000 PSI concrete.  
(Finding 70)  However, in its less than fulsome response, appellant glossed over any 
answers about past problems, simply stating that those issues were resolved (findings 
73-74).  In short, although Cutter acknowledged delay, it blatantly failed to provide a 
remedial plan or even an explanation of how it would keep similar failures from 
happening in the future, which was sought by the first and third requests from the 
contracting officer in the cure notice (findings 74-75).  Appellant also failed to provide 
an interim schedule or projected completion dates (finding 75). 
 
In a second letter concerning the cure notice, Cutter alleged that it had corrected 
deficiencies regarding the I-Beam structural steel, though admitted that it had not 
uploaded those corrections to Projectmates, which it claimed to have remedied.  
Additionally, Cutter explained it had hired a company to evaluate the strength of the 
interior curb wall.  Again, Cutter stated it would supplement quality control with an 
additional team member.  (Finding 79)  Appellant missed the opportunity for possible 
further extensions and negotiations by stubbornly refusing to address the areas it 
already admitted were problematic because of its own actions and admitted delays. 
 
Further, this failure to explain how it would keep problems from happening 
again demonstrated that Cutter was unsure of how to fix the delay issues.  Indeed, even 
though the government asked appellant to explain how it would keep similar issues 

93 
 
that caused delays from recurring, appellant failed to provide any explanations.  
(Findings 74-75, 113).  While appellant failed to provide adequate quality control 
(findings 26-27) and continued to get further behind schedule, it also failed to explain 
how that process would stop for the remainder of the contract (finding 113).  This 
constitutes further evidence refuting appellant’s assertion that it could have completed 
the project on time -- an assertion for which it carries the burden of proof.   
 
Appellant’s failure to provide assurances supports the contracting officer’s 
conclusion that there was no reasonable likelihood that Cutter could complete the work 
in the time remaining in the contract and supports termination on that basis.  See 
MOQA-AQYOL JV, LTD., 17-1 BCA ¶ 36,909 at 179,826. 
 
II.  Cutter Failed to Demonstrate That Its Delays Were Excusable 
 
We have determined that the government met the prima facie case for default 
termination; thus, we must analyze whether appellant’s delays were excusable.  See 
ECC CENTCOM Constructors, LLC, 18-1 BCA ¶ 37,133 at 180,711 (citing DCX, Inc. 
v. Perry, 79 F.3d 132, 134 (Fed. Cir. 1996)).  Appellant argued that the government’s 
expert should be disregarded, that its own should be the only one the Board relies 
upon, and that many delays were excusable or concurrent so it should have been 
granted additional time to complete the contract.  We are not persuaded by these 
arguments.   
 
We cannot agree that Cutter demonstrated that delays were excusable or 
attributable to the government when the burden shifted to appellant.  Cutter failed to 
demonstrate that the government caused 46 days of delay for FAA permits, 293 days 
of delay for column 12’D’ issues, 150 days of delay for Building 253 conduit severing,  
295 days of delay for fire protection or suppression system design conflicts, 305 days 
of delay for fire alarm mass notification system vendor change, 126 days of delay for 
grade beam design conflicts, 256 days of insulated metal wall panel design conflicts, 
181 days of delay for trench drain design conflicts, and 143 days of delay for 
contaminated settled dust. 
 
A.  FAA Permits 
 
Appellant claimed an excusable delay of 46 days for the government failing to 
obtain the Construction Permit under a Notice of Proposed Construction or Alteration, 
otherwise referenced by the parties as the Building Permit (finding 204).  Two permits 
were required for the project:  1) the Building Permit; and 2) the Notice of Proposed 
Construction or Alteration for a crane, otherwise referenced by the parties as the 
Temporary Construction Crane Permit or Crane Permit.  The government was 
responsible for the Building Permit and Cutter was responsible for the Temporary 

94 
 
Construction Crane Permit.  (Finding 19)  According to Cutter, failure to obtain the 
Building Permit caused construction delay for the steel fabrication (finding 204.a.). 
 
On October 13, 2015, Cutter submitted a request for the Crane Permit  
(finding 35).  On November 2, 2015, the FAA sent an email to Cutter’s steel 
fabrication subcontractor, Canatal Industries, Inc. (Canatal), requesting additional 
information.  The email included a question about whether a permanent construction 
permit was requested.  (Finding 36)  Canatal and the FAA corresponded back and 
forth from November 2, 2015 to December 15, 2015, concerning how many cranes 
would be used due to a discrepancy between 1 and 3 cranes as well as what the 
building height was.  Canatal did not answer the building height question.  (Findings 
36-37)   
 
On December 15, 2015, the FAA sent Canatal an email expressing concerns 
about the cranes and the significant impact on VOR.  The FAA again inquired about 
whether the owners of the building ever filed the Building Permit.  (Finding 37)  
Canatal then notified and asked Cutter about the FAA’s question concerning the 
Building Permit (finding 38).  On December 18, 2015, the government requested the 
FAA approve the Building Permit (finding 39). 
 
On January 15, 2016, Cutter’s Quality Control Manager sent an email to 
Canatal asking if it had submitted all the packages it planned and if more would 
follow.  Canatal answered that it had submitted for the first time everything but some 
requests for information would need to be answered.  Canatal and Cutter corresponded 
via email about what needed to be done.  (Finding 39) 
 
On January 19, 2016, Mr. Dwyer directed Canatal to proceed with fabrication.  
On January 27, 2016, Canatal informed Cutter that resubmission of batch no.1 would 
be that day and that it was scheduled to start erection on March 14, 2016.  (Finding 40) 
 
On February 1, 2016, the FAA contacted the government to ask the height of the 
cranes.  The contract specialist forwarded the email to Cutter that day.  (Finding 41) 
 
On February 3, 2016, the FAA approved the Building Permit (finding 42).  Also 
on February 3, 2016, the FAA released a Determination of Hazard to Air Navigation 
regarding theCrane Permit (finding 43).  On February 4, 2016, Cutter’s crane 
contractor sent an email to Cutter’s Project Manager stating that he filled out the FAA 
form to propose closing down the VOR on March 14, 2016 (finding 44). 
 
On February 25, 2016, Cutter’s Project Manager sent an email to the FAA 
inquiring about the Crane Permit and the VOR shut-down.  The FAA responded the 
same day, stating the requested date should not be a problem.  On the same day, 

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Cutter’s Project Manager sent the government an email informing it that the VOR 
shutdown was on schedule to start March 14, 2016.  (Finding 45) 
 
Even RECON, Cutter’s own expert for its REA, opined that the FAA delays 
caused zero days of delay.  Specifically, the RECON analysis reiterated that the FAA 
permit was zero days of delay, zero days of concurrent delay, and zero days of  
non-concurrent delay.  (Finding 234) 
 
During testimony, Mr. Dwyer, Cutter’s CEO, admitted he was included in emails 
that demonstrated possible issues with a permanent construction permit and did not 
know if the FAA questions were ever answered by his subcontractor.  Further, he 
admitted that he knew as early as the end of January that the steel erection start date 
would be March 14, 2016.  (Finding 132) 
 
While Cutter alleges that the government’s failing to obtain the Building Permit 
prior to the start of the contract caused it to have delay, it is clear from the emails 
between the FAA and Cutter (or its subcontractors) that Cutter was still working on 
getting the Crane Permit after the approval of the Building Permit.  Cutter did not 
submit the request to propose closing down the VOR until February 4, 2016, the day 
after the FAA released the Building Permit (finding 44).  As late as February 1, 2016, 
the FAA was still seeking information from Cutter about the height of the cranes for 
the Crane Permit (finding 41).  The FAA appeared to be processing both permits at the 
same time and there is no indication that the Building Permit delayed the Crane 
Permit.  If anything, based on the communications, Cutter and Canatal failing to 
provide the number of cranes and height of the cranes was the biggest determining 
factor in obtaining the Crane Permit.  The FAA repeatedly asked for the height of the 
cranes and expressed concerns about the impact on VOR as early as December 15, 
2015 (finding 37).  The Building Permit did not appear to have a time impact on the 
Crane Permit as the FAA was awaiting Cutter to inform it of the height and number of 
cranes it planned to use in the project.  Thus, Cutter failed to demonstrate that the 46 
days of delay was excusable or attributable to the government. 
 
B.  Column 12’D’ 
 
Cutter placed a significant amount of emphasis on Column 12’D’ causing a 
work stoppage, arguing that 293 days of delay occurred that should have been 
attributed to the government (finding 204).  However, Cutter failed to demonstrate that 
it was entitled to delay for Column 12’D’.   
 
By its own admission, Cutter was not nearly as impacted by Column 12’D’ as it 
alleged at the hearing.  First, Cutter’s CEO, Mr. Dwyer, admitted that temporary 
shoring was installed the day after the deficiency was discovered and workers 
continued to work in the vicinity shortly after shoring was completed (finding 133).  

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Second, in Cutter’s own meeting minutes, a contemporaneous document at the time 
the Column 12’D’ issues occurred, Cutter stated there was approximately one month 
of work left that could be done before it caused an issue (findings 53, 149).  However, 
Cutter did not reach the end of that period because of the termination for default 
(finding 150).   
 
Further, regarding Colum 12’D’, the follow-on contractor was able to work in 
the area with shoring for approximately a year until the repair was complete.  The 
work for the repair took one week to accomplish.  (Finding 194) 
 
Cutter overemphasized the safety issues regarding Column 12’D’ which did not 
delay Cutter from continuing to work by its own admission and was further supported 
by the follow-on contractor safely working in the area for approximately one year.  As 
a result, Cutter failed to demonstrate that column 12’D caused delay attributable to the 
government. 
 
C.  Cutting Conduit in Building 253 
 
Cutter also claimed 150 days of delay for cutting the conduit in Building 253.  
However, Cutter did not adequately demonstrate that this was a delay that should be 
attributed to the government.  While Cutter did not have drawings that indicated 
underground conduit, there were no wires above the electrical room or going to the 
building so the electrical conduit was obviously underground.  If Cutter had conducted 
an appropriate site survey, it would likely have discovered that the conduit was 
underground.  (Finding 178)  Further, the contract required Cutter to record existing 
conditions in the presence of a contracting officer prior to any deconstruction work 
(finding 13) but this did not appear to happen (finding 180). 
 
D.  Fire Suppression System 
 
One of Cutter’s largest claimed delays is the fire suppression system, for which it 
claims 295 days of delay (app. br. at 16).  However, Cutter itself requested to not follow 
the specifications for this issue (findings 139,156).  Cutter disagreed with the 
government four times using RFIs concerning the fire pump system (finding 139).  The 
government initially told Cutter to follow the specification but eventually told Cutter it 
could provide a cost proposal.  This happened on March 11, 2016, but Cutter did not 
provide the proposal until August 24, 2016.  (Finding 156)  It would be nonsensical to 
apply the 167-day portion against the government when Cutter chose to submit a cost 
proposal instead of following the specification as written and as the government directed 
it to do.  And the 167 days does not include the time Cutter kept refiling requests for 
information prior to the government finally conceding that it could submit a proposal.  
The entirety of the problems with the fire suppression system design are attributable to 

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Cutter because it chose to attempt an alternative method rather than follow the 
specification and design. 
 
E.  Fire Alarm Mass Notification System Vendor Change  
 
Cutter contended that the FAMNS was delayed due to the contract-directed sole 
source subcontractor not being responsive and the government not providing an 
alternate (finding 205.a).  Cutter inexplicably initially claimed both 149 and 197 days 
(finding 78) for the FAMNS delay rather than 305 days, which Cutter’s expert and 
counsel claimed by the time of the hearing (finding 205.a; app. br. at 16-17).  It is 
unclear why there is such a vast difference between the original claim of 149 or 197 
days and 305 days by the time of the hearing or how this item was on the critical path 
to impact the schedule.  Even Cutter cannot seem to determine how long a delay it 
alleged. 
 
The contracting officer addressed this issue in the termination for default letter, 
informing Cutter that she believed 116 calendar days were delayed by Cutter’s failure 
to provide a proposal (finding 92).  At the time of termination, this was still an open 
item, and neither party advanced particularly well-developed arguments regarding 
responsibility for any delays.  Nevertheless, we rule for the government on this subject 
because Cutter has not met its burden to prove delay.  We agree with the government 
expert’s analysis of the FAMNS delay claims and determination that any such delays 
were not on the critical path because Cutter failed to account for several issues that 
actually impacted the critical path, such as not following the specifications, slow 
progress, and correcting poor workmanship (findings 244, 250). 
 
F.  Grade Beam Design Conflicts 
 
Cutter alleged 126 days of delay for grade beam design conflicts (finding 206).  
However, by its own admission, over the government’s protest, Cutter insisted on 
completely removing the grade beams instead of what was required in the contract.  
Put simply, this dispute pits the government’s position that removing the grade beams 
instead of cutting them was for Cutter’s convenience and not what was stated in the 
specifications as opposed to Cutter’s position that this was a defective specification.  
Cutter failed to demonstrate that the specification was defection and that the delay was 
excusable or attributable to the government. 
 
First, Cutter admitted in its response to the cure notice that it “kept pressing the 
issue to deliver a better end product to the [g]overnment” instead of following the 
specifications (finding 73).  This is quite different than asserting that the specifications 
were defective.  The parties’ actions, as demonstrated by the contemporaneous 
documentation available during performance, support the interpretation that Cutter was 

98 
 
asking to modify the specifications for its own convenience to deliver a “better” end 
product rather than to correct a deficiency (see findings 73, 127).  
 
While Cutter claimed in response to the cure notice that Cutter never stated the 
change would be at no cost, the RFIs told a different story.  In RFI 15, the initial RFI 
concerning removing the grade beam, Cutter wrote “Cost Increase of US $0.00” and 
“Increase of 0 days” on the form.  Further, in RFI 38, Cutter confirmed “Increase of 0 
days” but had changed the cost to “Yes, may be” instead.  (Finding 74)  Cutter 
gradually added costs and time delays after the first request and by the time of Cutter’s 
cure notice response, was convinced it never said Cutter would do the work at no cost 
to Cutter (finding 74). 
 
Further, the testimony of one of the government’s engineers matches the RFI 
contemporaneous documentation.  Major Trembley testified that he approved the 
change because it was a typical request and, in his experience, it was for the 
convenience of the contractor.  Major Trembley testified that his answer was “yes, of 
course you can take the entire grade beam if you’d like at your own convenience and 
at no additional cost to the government” and that Cutter did not raise any issue with 
costs for another three months.  He testified that Cutter was adamant the entire grade 
beam needed to be removed and the government reviewed the request several times 
but ultimately determined that the entire grade beam did not need to be removed.  
(Finding 160)   
 
This version of events was also documented in the contracting officer’s cure 
notice (finding 70) and termination for default notice (finding 93).  The contracting 
officer wrote that the government agreed to the changes Cutter requested, finding them 
“acceptable” and that the change was contingent upon being no cost.  This included 
the no-cost notation in Modification No. P00003.  (Finding 70)  The government 
agreeing to accept Cutter’s proposed change as “acceptable” is not the same as the 
government stating a problem existed with the specifications. 
 
Appellant’s expert opined that the government should have added 126 days of 
delay for the grade beam demolition if the contract had continued but the government 
did not extend the contract completion date (finding 206).  He placed this delay in his 
“Other Delays” category (findings 203, 206).  Appellant’s expert was unconvincing 
because, rather than analyzing why a delay existed, he basically outlined the 
communications and simply stated the government was wrong. 
 
Thus, based on the contemporaneous documentation in the record and 
testimony at the hearing, we find that Cutter requested to change the grade beam 
design for its own convenience and has failed to demonstrate that the grade beam 
design conflicts were attributable to the government or that Cutter should receive 
additional time.  Further, even if Cutter had been able to demonstrate that any of the 

99 
 
time was compensable, 126 days was not sufficient to overcome the delay the 
government demonstrated. 
 
G.  Insulated Metal Wall Panel Design Conflicts 
 
Cutter alleged 256 days of delay stemming from insulated metal wall panel 
design conflicts (findings 72, 206).  In its response to the cure notice, Cutter explained 
that the Building 253 insulated metal wall panels had a design conflict between the 
structural and architectural drawings depicted different sized openings.  (Finding 72)  In 
the termination letter, the CO opined that the issue was not ripe for discussion because 
Cutter was still in the process of pricing the CCOR (finding 97).  Appellant’s expert 
included the insulated metal wall panel design conflict in its “Other Delays” category, 
opining that if other delays were not attributable to the government, this would be a 
government delay and a contract extension would be necessary (findings 203, 206). 
 
However, the government’s expert opined that Cutter did not notify the 
government for two weeks after discovering the problem with the drawings.  Further, 
on October 6, 2016, one week after appellant notified the government, the government 
provided a simplified solution via its architect.  Cutter acknowledged receiving the 
design but opted to use a more complicated design before reverting to the simplified 
design provided by the government’s architect.  Further, appellant disregarded the 
progress of other work during this period when it failed to consider weather sensitive 
work being shut down due to temperature restrictions.  (Finding 252) 
 
We agree with the government and the government’s expert that this delay was 
not attributable to the government because the government provided a simplified 
solution one week after Cutter notified it and Cutter failed to consider the weather 
restricted period.  Thus, there is no evidence this delay impacted the critical path, 
especially because the solution was ultimately used and, especially, because of the 
weather. 
 
H.  Trench Drain Design Conflicts 
 
Cutter alleged 181 days of delay for trench drain design conflicts (finding 205.d.).  
Drawings provided in the contract required reinforcements in the trench drains but 
Cutter refused to include them, which it confirmed in its cure notice response 
(finding 98).  CMSgt Bussell testified that the follow-on contractor used the trench drain 
that Cutter left at the site, that it was meant to be cast in concrete, and the follow-on 
contractor reinforced it (finding 195).  It is unclear what delay Cutter alleges should be a 
government delay when it blatantly refused to follow the specifications to reinforce the 
trench drain.  Thus, Cutter has not demonstrated that it is entitled to the 181 days of 
delay for the trench drain design conflicts. 
 

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I.  Contaminated Settled Dust 
 
Cutter alleged 143 days of delay for contaminated settled dust (finding 205.c.; 
app. br. at 19).  Based on how close to termination this issue arose, as well as Cutter’s 
failure to timely inform the government of the issue, Cutter is not entitled to the 
143 days of delay it seeks.  
 
On November 23, 2016, Cutter informed the government in writing about the 
contaminated settled dust.  Cutter included a report, dated September 22, 2016, that 
indicated asbestos and other heavy metals.  In the November 23, 2016 letter, Cutter 
informed the government that it would require a certified specialist to remove the dust 
and that it could negatively impact the schedule.  (Finding 80) 
 
In Cutter’s December 15, 2016 letter, Cutter noted that it discovered the dust 
the week of September 15, 2016.  Cutter also admitted it provided the government 
with the test results on November 23, 2016.  (Finding 82) 
 
Based on the record and Cutter’s own letters, Cutter waited two months to 
inform the government after receiving the report demonstrating the existence of 
asbestos (see findings 80, 82).  Cutter did nothing to mitigate the asbestos or 
contaminated dust while it held onto the report, failing to notify the government of the 
problem for over two months after discovery (finding 82).  It is unclear how Cutter 
arrives at its claim that it is entitled to 147 days of delay when the amount of time 
between the date of the report (September 22, 2016) and the termination of the 
contract (December 29, 2016) was 98 days.  Further, the amount of time between 
when Cutter notified the government (November 23, 2016) and termination was a 
mere 36 days.  At a minimum, Cutter’s delay in informing the government that an 
issue even existed would cause Cutter to be responsible for at least 69 days of delay 
rather than the government.  The government had no way of even knowing a problem 
existed prior to being notified on November 23, 2016 whereas Cutter knew beginning 
the week of September 15, 2016, but did nothing to mitigate the issue.  Further, the 
government could not have responded immediately and needed some amount of time 
to investigate and answer the notification.  While the government seemed to 
reasonably respond to RFIs throughout contract performance, the termination occurred 
so closely in time to Cutter’s notification about the contaminated dust that the 
government did not have sufficient time to respond.  This is especially true based on 
Cutter’s failure to notify the government about the issue at all for two months after 
receiving the report from the testing.  Given the relatively short period of time that the 
government was aware of the dust issue, which was one issue of many addressed while 
the parties addressed the cure notice and over the holiday season, we do not find that 
Cutter has proven entitlement to any government-caused delay on this issue. 
Moreover, even if we conservatively did make such a finding, the government day 

101 
 
would be, at most, the 36 days between Cutter’s first informing the government of the 
dust and the termination of the contract.   
 
CONCLUSION 
  
The government demonstrated through the record and its expert that Cutter 
repeatedly failed to follow the specifications and failed to provide any description of 
how it would fix that issue in future contract performance.  Additionally, the 
government demonstrated that Cutter was increasingly behind schedule, starting very 
early in contract performance through termination.  Conservatively, the government 
demonstrated that Cutter was approximately 8 months behind schedule and that Cutter 
contributed approximately 240 days of delay to the schedule, from both lay witnesses 
and the government’s expert.  In contrast, Cutter failed to demonstrate that it 
experienced excusable delays that would have compensated for the delay in contract 
performance.  Even if we conservatively agreed that Cutter proved it was delayed by 
up to 36 days for the contaminated dust, this possible 36 days was not sufficient to 
overcome the 240 days of delay attributable to Cutter, which along with its manifold 
performance problems amply justified the contracting officer’s decision to terminate 
the contract for default. 
 
We deny the appeals. 
  
 Dated:  February 17, 2026 
 
 
 
 
 
 
 
 
 
 
 
HEIDI L. OSTERHOUT 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
I concur 
 
 
 
OWEN WILSON 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 I concur 
 
 
 
 J. REID PROUTY  
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 

102 
 
 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. 61020, 61021, 61061, 
61146, 61278, Appeals of Cutter Enterprises, LLC, rendered in conformance with the 
Board’s Charter. 
 
 Dated:  February 18, 2026 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals