ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
OPINION BY ADMINISTRATIVE JUDGE STINSON 
 
 Appellant Wright Brothers, the Building Company, Eagle LLC 
(Wright Brothers or WBTBC), appeals a contracting officer’s September 27, 2019, 
final decision denying, in part, appellant’s claim seeking an equitable adjustment for 
alleged government delay costs in the amount of $753,816.77.  We have jurisdiction 
pursuant to the Contract Disputes Act of 1978 (CDA), 41 U.S.C. §§ 7101-7109.  The 
government previously filed a motion to dismiss this appeal for lack of subject matter 
jurisdiction, alleging that appellant failed to properly certify its claim as required by 
the CDA.  By decision dated October 8, 2020, we held that we possess jurisdiction to 
consider Wright Brothers’ appeal of the contracting officer’s final decision.  Wright 
Brothers, the Building Co., Eagle LLC., ASBCA No. 62285, 20-1 BCA ¶ 37,714 
at 183,086. 
 
 The parties subsequently agreed to submit this appeal pursuant to Board 
Rule 11, on the record without a hearing, for a decision on entitlement only.  Each 
party submitted initial and responsive briefs.  In addition, appellant submitted two 
declarations in support of its initial brief and two declarations of the same individuals 
in support of its reply brief.  For the reasons set forth below, we deny the appeal. 
 
FINDINGS OF FACT 
 
1.  On September 26, 2014, the government awarded Wright Brothers Contract 
No. FA4528-14-C-3001 in the amount of $3,791,573, for the repair and renovation of 
Building 1113WSA located at Minot Air Force Base, in Minot, North Dakota (R4, 
Appeal of -- )  
 )  
Wright Brothers, the Building Company, 
Eagle LLC 
) 
) 
ASBCA No. 62285 
 )  
Under Contract No. FA4528-14-C-3001 )  
   
APPEARANCE FOR THE APPELLANT: Samuel A. Diddle, Esq. 
  Elam & Burk, P.A. 
  Boise, ID 
 
APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. 
  Deputy Chief Trial Attorney 
Michael J. Farr, Esq. 
    Trial Attorney 

2 
 
tab 9).  The notice to proceed was issued on November 14, 2014 (R4, tab 24).  The 
original contract period was 365 days, to commence within 10 calendar days of 
issuance of the notice to proceed (id.). 
 
2.  Over the course of contract performance, the parties agreed to seven bilateral 
modifications extending the contract performance period (R4, tabs 11 at 1 
(Modification No. P00002 - extended the delivery date to March 31, 2016, which is 
138 days), 12 at 1 (Modification No. P00003 - 198 days), 14 at 1 (Modification 
No.  P00005 - 76 days), 15 at 1 (Modification No. P00006 - 32 days), 16 at 1 
(Modification No. P00007 - 28 days), 18 at 1 (Modification No. P00009 – 90 days), 
20 at 1 (Modification P00011- extending the contract completion date from 
June 29, 2017, to September 3, 2017, which is 66 days)).  The government issued 
Modification No. P0008 unilaterally, extending “the completion date by 31 days . . . 
due to government delays in reviewing the proposal for Mod 9 (Not Released)” 
(R4, tab 17 at 1).  Bilateral Modification No. P00011 extended the contract 
performance to September 3, 2017 (R4, tab 20 at 1).  These modifications taken 
together extended the contract completion date a total of 659 days. 
 
3.  As of September 3, 2017, the project was not complete and work on concrete 
placement remained ongoing (R4, tabs 74-75).  By email dated October 30, 2017, the 
contracting officer notified Wright Brothers that exterior concrete did not meet the 
contract specifications and that liquidated damages would be assessed beginning 
November 6, 2017, until the completion and acceptance of the project (R4, tab 76). 
 
4.  The parties agreed to three modifications which caused a change to the price 
of the contract.  Modification No. P00001 added and deleted work within the scope of 
the contract, including additional concrete costs and removing the Air Barrier System, 
resulting in a net decrease of $2,839.18 that lowered the total contract value to 
$3,788,733.82 (R4, tabs 10 at 1, 113).  Modification No. P00009 added $589,713 to 
the contract, increasing the total contract value to $4,378,446.82 (R4, tab 18 at 1).  
Modification No. P00013 added $241,257.67 to the contract, increasing the total 
contract value to $4,619,704.49 (R4, tab 22 at 4).  Together, Modification Nos. 9 and 
13 added a total of $628,310.13 reimbursement for delay damages (R4, tabs 18 at 1, 22 
at 4, 121 at 5, 124 at 4-5; gov’t br. at 7; Respondent’s Statements of Fact ¶ 6).
1  The 
impact of all three modifications to the contract price was a net increase of 
$828,131.49. 
 
5.  By email dated March 1, 2018, appellant submitted COR (Change Order 
Request) 020 in the amount of $976,310.19 (R4, tab 78 at 3). 
 
1 Appellant’s briefs did not set forth a response to Respondent’s Statements of Facts, 
nor did they dispute the government’s figure of $628,310.13 as reflecting the 
amount of delay damages already reimbursed by the government. 

3 
 
6.  In a letter to appellant’s attorney, dated May 22, 2019, David Reichard, P.E., 
of Delta Consulting Group, provided what he described as a “preliminary review of the 
delays and disruptions, and associated damages on the referenced project,” WSA 
Building 1113 (R4, tab 98a at 1).2  Mr. Reichard noted that eight modifications 
extended the contract completion date, ultimately to September 3, 2017 (id.).  
Mr. Reichard also noted that Modification No. “P00012 suspended liquidated damages 
to incorporate a winter exclusion ending on May 15, 2018,” and that appellant 
“completed its contract work by August 31, 2018” (id.) (footnote omitted). 
 
7.  From the above recitation, Mr. Reichard concluded that “contract 
completion occurred 1,021 days after the original contract completion date,” and that 
the government “accepted responsibility for 986 days and assessed liquidated damages 
for 35 days.  In other words, a one-year project became a near four-year project 
through no fault of [appellant]”  (R4, tab 98a at 1-2) (footnote omitted). 
 
8.  Mr. Reichard’s May 22, 2019, preliminary review also stated: 
 
Not only was WBTBC’s work delayed, it was also 
disrupted.  WBTBC planned to complete the work in an 
orderly, efficient manner.  Rather, the work was done in 
fits and starts as evidenced by USAF continually issuing 
Mods to extend the contract completion date. Furthermore, 
WBTBC repeatedly notified USAF of delays such as gate 
delays, submittal review times, RFI responses, and 
decisions by the Owner. 
 
The delay and disruption caused WBTBC to incur 
significant increased costs, particularly the disruption of 
subcontracted work.  Typically, cost overruns due to 
 
2 By submission dated June 16, 2021, appellant designated Mr. Reichard as an expert, 
referencing Mr. Reichard’s May 22, 2019 letter, which it “incorporated by 
reference.”  By submission dated July 15, 2021, the government designated 
Ryan S. Clark, Capital Project Management, Inc., as its expert witness.  In a 
joint request for extension of scheduling deadlines, appellant notified the Board 
that it intended to rely upon its June 16, 2021, designation of expert witness and 
filing, as satisfying the November 15, 2021, deadline to submit its expert report.  
By letter dated March 3, 2022, the government informed the Board that “it has 
elected to not submit an expert report.”  Accordingly, although both parties 
contemplated during discovery the preparation of expert reports in this appeal, 
ultimately, the only such submission was Mr. Reichard’s three-page, 
May 22, 2019 letter, which he indicated was a “preliminary review” (R4, 
tab 98a at 1).  

4 
 
disruption are determined through a measured mile 
analysis where productivity during an unimpacted period is 
compared to productivity during an impacted period.  The 
impacts to Building 1113, however, were prevalent 
throughout the entire project so there was no unimpacted 
period.  Additionally, the increased costs resulted from 
more than loss of productivity.  The costs included 
repeated mobilizations and demobilizations as well as 
replacement of subcontractors caused by the significant 
extended duration of the project.  For these reasons and the 
nature of the available project records, Delta determined a 
total cost analysis for key elements of the work was the 
most equitable approach. 
 
(R4, tab 98a at 1-2) (footnote omitted).  As support for this analysis, Mr. Reichard 
cited only the document referenced as “WBTBC Baseline Schedule” (R4, tab 98a at 2 
n.5). 
 
9.  Wright Brothers submitted to the contracting officer a letter from its counsel 
dated May 30, 2019, seeking a “final equitable adjustment” for alleged government-
caused delays (R4, tab 98).  Counsel’s letter referenced a “request for an equitable 
adjustment which has been referred to as [Change Order Request] COR 020” (R4 
tab 98 at 2).  The letter stated that appellant “is submitting its claim in an effort to 
bring closure to this project through mutual agreement and to avoid adversarial 
adjudication of a claim.”  The letter also referenced a “final Change Order Request . . . 
itemized on COR 020 dated May 28, 2019” and “a prior version of COR 020 dated 
September 27, 2018”  (Id.).  COR 020, dated May 28, 2019, sought reimbursement in 
the amount of $753,816.77 (R4, tab 98c at 2). 
 
 10.  Appellant’s May 30, 2019 claim letter advanced the following additional 
legal theories in support of its request for additional compensation - “a constructive 
change of the Contract; a breach of the implied covenant of good faith and fair 
dealing; and/or a cardinal change to the Contract and the project warranting an 
equitable adjustment in the Contract price” (R4, tab 98 at 4). 
 
11.  By letter dated July 12, 2019, appellant’s counsel confirmed “that the 
submission sent to you on May 30, 2019, represented a certified claim and a request 
for the contracting officer’s decision” (R4, tab 101 at 2). 
 
 12.  By letter dated July 30, 2019, the contracting officer informed appellant: 
 
In accordance with FAR 33.211(c)(2) – Contracting 
Officer’s Decision, this letter provides notice that a 

5 
 
decision on the claim, referenced as COR 020 in your 
counsel’s letter dated 30 May 2019 and initially received 
with defective certification on 31 May 2019, will be sent to 
you on 27 September 2019.  This date is based on the size 
and complexity of the claim, and the adequacy of the 
contractor's supporting data. 
 
(R4, tab 102 at 2)  The contracting officer also informed appellant that the government 
“would like to resolve the remaining items, detailed below, through mutual agreement, 
driven by discussion between the Contracting Officer and the Contractor” (id.). 
 
13.  On September 5, 2019, the contracting officer provided appellant with a 
memorandum stating, the government’s concurrence with amounts sought by appellant 
for Items 110 and 111 of its claim, and identified as remaining unresolved, items 
108D, 108E and 109 (R4, tab 104 at 2). 
 
14.  Appellant prepared a spreadsheet dated September 12, 2019, reflecting cost 
items contained in appellant’s claim that were resolved by the parties, in the amount of 
$241,257.67 (R4, tab 106). 
 
15.  Bilateral Modification No. P00013, effective September 19, 2019, detailed 
the resolved cost items from appellant’s claim, as follows: 
 
The purpose of this modification is to: 
 
A. Incorporate Items 101-107, 108A, 108B, 108C, 108F 
and 110-112 from COR 020. 
 
B. Increase the contract amount by $241,257.67 (CLIN 
0003) increasing the total contract value from 
$4,378,446.82 to $4,619,704.49. 
 
C. In consideration of the modification agreed to herein as 
complete equitable adjustments for the Contractor's COR 
020 items, 101, 102, 103, 104, 105, 106, 107, 108A, 108B, 
108C, 108F, 110, 111 and 112, the Contractor hereby 
releases the Government from any and all liability under 
this contract for further equitable adjustments attributable 
to such facts or circumstances giving rise to COR 020 
items: 101, 102, 103, 104, 105, 106, 107, 108A, 108B, 
108C, 108F, 110, 111 and 112. 
 
(R4, tab 22 at 1-2) 

6 
 
 16.  Appellant prepared a spreadsheet dated September 24, 2019, reflecting 
remaining cost items contained in appellant’s claim that were not resolved by the 
parties, in the amount of $455,693.14.  The items that remained unresolved were items 
108D, 108E and 109.  (R4, tab 108) 
 
17.  On September 27, 2019, the contracting officer issued a final decision 
stating, in part:  
 
Wright Brothers the Building Company (WB) has 
submitted a claim for contract number FA4528-14C-3001, 
certified and received by the Government on 12 Jul 2019, 
in the amount of $753,816.77.  Mutual agreement resulted 
in some items originally claimed being incorporated into 
the contract by a modification for $241,257.67.  The 
remaining confirmed amount after modification is 
$455,693.14. 
 
 . . . . 
 
The contract has had thirteen modifications with an 
ultimate required contract completion date of 3 Sep 2017.   
Eight of the thirteen modifications adjusted the contract 
completion date.  These modifications were executed from 
31 Jul 2015 to 13 Sep 2019.  A total of 659 days were 
added to the period of performance of which 583 days 
were contributable to Government delay. 
 
 . . . . 
 
As of 3 Sep 2017, the project was not completed, 
performance period lapsed, and work was still ongoing.  
From 3 Sep 2017 through 30 Oct 2017 the Government 
and WB were in continuing dialog regarding cold joints, 
smoothness tests, concrete cracking, and boot imprints on a 
significant concrete placement.  On 30 Oct 2017, the 
Contracting Officer notified WB that the exterior concrete 
did not meet the contract specifications and liquidated 
damages would be assessed as of 6 Nov 2017 until the 
completion and acceptance of the project.  On 2 Jan 2018, 
due to winter weather, contract modification P00012 was 
signed.  P00012 incorporated a winter exclusion period 
effective 22 Nov 2017 through 15 May 2018 to the benefit 
of WB and provided the Government with temporary use 

7 
 
of the concrete driveway until it was replaced. During a 
winter exclusion the period of performance days are not 
counted. 
 
(R4, tab 109 at 2-3) 
 
18.  On November 27, 2019, appellant filed its notice of appeal of the 
contracting officer’s final decision, stating, in part: 
 
The monetary amount in controversy is $455,693.14 plus 
interest and attorney fees and costs to which Wright 
Brothers may be entitled under the Equal Access to Justice 
Act.  Wright Brothers’ claim has been fully set forth in 
correspondence and emails dated May 30, 2019; July 
12, 2019; August 20, 2019; and September 11, 2019. . . . 
 
(R4, tab 110 at 2) 
 
 19.  Appellant submitted with its initial brief a declaration of Mr. Reichard, 
attesting almost verbatim to the statements contained in his May 22, 2019, letter, a 
copy of which was attached to his declaration as Exhibit A (June 6, 2022, Reichard 
decl. ¶¶ 3-8).  In that declaration, Mr. Reichard concluded that “WBTBC is not 
responsible for any of the cost overruns – As noted above, USAF accepted 
responsibility for 97% of the delay” (id. ¶ 8). 
 
 20.  Appellant submitted with its initial brief a declaration of Mr. Trevor J. Wright, 
a Member and Principal of Wright Brothers, attesting almost verbatim to the facts set 
forth appellant’s initial brief at pages 7-17 (app. br. at 7-17; June 6, 2022, Wright decl. 
¶¶ 6A-6L). 
 
 21.  Appellant submitted with its reply brief a second declaration of 
Mr. Reichard, stating his belief as to the appropriateness of utilizing a modified total 
cost claim to substantiate appellant’s damages in this appeal, and why he believed 
utilization “of other methods for accounting for the increased costs caused by the delay 
in disruption was impractical and/or impossible” (July 11, 2022, Reichard decl. 
¶¶ 3- 4).  Regarding his justification for not performing a critical path analysis in this 
appeal, Mr. Reichard stated: 
 
In this case a CPM [critical path method] analysis was not 
required. A CPM analysis may be required to determine 
the amount of excusable and/or compensable delay.  In this 
case, the amount of excusable and/or compensable delay 

8 
 
was determined through the Government granting time 
extensions due to its actions. 
 
(Id. ¶ 6) 
 
 22.  Appellant submitted with its reply brief a second declaration of Mr. Wright, 
stating that Delta Consulting was provided with Wright Brothers’ “accounting 
information and data reflecting its total job costs,” that “[a]ll costs reviewed and 
reported were based upon costs incurred and paid.  Specifically, job costs including the 
job costs with MODs reflected on each schedule were costs incurred and paid,” and 
that “[t]he increased costs claim is based upon costs incurred and paid by WBTBC.” 
(July 11, 2022, Wright decl. ¶¶ 2-4) 
 
DECISION 
 
 I.  Contentions of the Parties 
 
In its initial brief, Wright Brothers argues “[t]he existence of delay to the 
overall Project and the Government’s acceptance of the vast majority of the delay is 
not disputed” (app. br. at 5).  According to appellant, “[t]he Project experienced 
significant and numerous delays resulting in extensions requiring at least 659 
additional days necessary to complete the work required under the Contract” (id.).  
Alleged government delays identified by appellant include failure to allow contractor 
access to the site, failure to timely respond to appellant’s requests for instruction, 
failure to timely approve contract submittals, failure to timely submit requests for 
proposals, and failure to timely respond to requests for information (app. br. at 5-6).  
Appellant argues that the government “acknowledged and accepted” these delays “as 
Government responsibility in Contract amendments,” and that “[t]he aggregation of 
delays required performance over an almost four (4) year period compared to the 
originally contracted one (1) year period” (app. br. at 6). 
 
Appellant concludes it “is not responsible for any of the cost overruns,” stating, 
“[a]s noted above, USAF accepted responsibility for 97% of the delay” (app. br. at 24).  
However, appellant’s initial brief contains no discussion of the manner in which the 
government “accepted responsibility” for 97% of the delay, other than the inferences 
set forth in Mr. Reichard’s preliminary review regarding the original contract 
completion date and the date of contract completion (app. br. at 3-4).
3  Appellant’s 
 
3 Although appellant brief references a footnote “6”, presumably supporting its 
assertion that “WBTBC is not responsible for any of the cost overruns,” and 
“[a]s noted above, USAF accepted responsibility for 97% of the delay,” (app. 
br. at 24), appellant’s brief contains no corresponding text for footnote “6.”  

9 
 
reply brief again references the alleged 97% of government-accepted delay, indicating 
that it is based upon calculations performed by Mr. Reichard to the effect that 
“contract completion occurred 1,021 days after the original contract completion date,” 
and that the government “accepted responsibility for 986 days” because it issued 
modifications extending the contract performance period a total of 986 days 
(986/1,021= .9657) (app. reply br. at 2-3 (citing R4, tab 98a)).  Indeed, Wright 
Brothers incorrectly asserts in its reply brief it is “undisputed” that the government 
“caused 97% of the three-year time extension” (app. reply br. at 1).  Without question, 
both the government’s initial brief and reply brief dispute appellant’s assertion. 
 
In its initial brief, the government states “even if days of delay equated to 
Appellant’s increased costs (which they do not), Appellant[] has not proven that 
government is responsible [sic] 97% of delay days related to the delay damages the 
government already paid, or that the government “accepted responsibility” for any 
percent of Appellant’s “disruption” claim” (gov’t br. at 7).  The government argues 
that “the modifications which added extensions to the completion date identified 
‘government delays’ for no more than 246 days out of 1,021 days, which is less than a 
quarter of the total days of delay identified by Appellant,” and that “[a]s to these days, 
the government paid Appellant $628,310.13 for delay claims under Mods 9 and 13” 
(gov’t br. at 31; see Respondent’s Statements of Fact ¶ 6; finding 4).
4  With respect to 
the “modifications that did not refer to government delays,” the government notes that 
“the mere grant of a contract extension does not establish that the government was 
responsible for the delay” (gov’t br. at 31- 32 (citing England v. Sherman R. Smoot 
Corp., 388 F.3d 844, 856-857 (Fed. Cir. 2004)). 
 
The government likewise notes that appellant “has not proven any other delays, 
which requires an assessment Appellant has not performed regarding the beginning 
and end of each delay, and the responsible party, against a critical path of work leading 
to contract completion” (gov’t br. at 32).  With regard to this last point, the 
government adds “[t]o the extent Appellant’s claim is based on delays caused by the 
government, Appellant must prove the extent of delay to work that is on the critical 
path that affects the completion date of the contract, the government’s fault for that 
specific delay, and the resulting injury” (gov’t br. at 35; see gov’t reply br. at 3-4 
(citing States Roofing Corp., ASBCA No. 54860 et al., 10-1 BCA ¶ 34,356 
at 169,661)). 
 
Appellant’s reply brief fails to address either of these points, i.e., that “the mere 
grant of a contract extension does not establish that the government was responsible 
 
Indeed, appellant’s brief contains only footnote “1” (app. br. at 5), which 
neither includes nor references any other footnotes. 
4 At page 38 of its initial brief, the government states that it accepted 248 total days of 
delay (gov’t br. at 38; see also gov’t reply br. at 4). 

10 
 
for the delay” (gov’t br. at 31-32) and that appellant “must prove the extent of delay to 
work that is on the critical path that affects the completion date of the contract” (id. 
at 35).  Appellant’s reply brief likewise fails to discuss the controlling decisions cited 
by the government.  Instead, appellant simply restates its initial argument that it “was 
not responsible for the increased costs” because “the Government accepted 
responsibility for 97% of the additional time the job required [which] is ample proof 
alone that WBTBC is not responsible for the increased costs associated with that 
delay” (app. reply br. at 12). 
 
II.  Appellant has Failed to Establish Entitlement to Compensation for 
Government Delay and Disruption 
 
As noted above, the parties agreed to submit this appeal pursuant to Board 
Rule 11.  “Pursuant to Board Rule 11, the Board ‘may make findings of fact on 
disputed facts.’”  U.S. Coatings Specialties & Supplies, LLC, ASBCA No. 58245, 20-1 
BCA ¶ 37,702 at 183,031 (quoting Grumman Aerospace Corp., ASBCA No. 35185, 
92-3 BCA ¶ 25,059 at 124,886 n.13).  As the Court of Appeals for the Federal Circuit 
explained in Kinetic Builder’s Inc. v. Peters, “[a] contractor seeking to prove the 
government’s liability for a delay has the burden of proving the extent of the alleged 
delay, the causal link between the government’s wrongful acts and the delay in the 
contractor’s performance, and the alleged harm to the contractor for the delay.”  
226 F.3d 1307, 1316 (Fed. Cir. 2000).  To establish that “causal link, the contractor 
must show that the government’s actions affected activities on the critical path of the 
contractor’s performance of the contract.”  226 F.3d at 1317. 
 
Accordingly, to establish that government delay here impacted appellant’s 
ability to complete its work, Wright Brothers must demonstrate that the government’s 
acts “have affected activities on the critical path.”  Essex Electro Eng’rs, Inc. v. 
Danzig, 224 F.3d 1283, 1295 (Fed. Cir. 2000) (quoting Mega Constr. Co. v. United 
States, 29 Fed. Cl. 396, 424 (1993)); Fru-Con Constr. Corp., ASBCA Nos. 53544, 
53794, 05-1 BCA ¶ 32,936 at 163,158-59 (“the delay must be to work on the critical 
path because only work on the critical path has an impact upon when the project is 
completed”).  “The critical path is the longest path in the schedule on which any delay 
or disruption would cause a day-for-day delay to the project itself; those activities 
must be performed as they are scheduled and timely in order for the project to finish 
on time.”  GSC Constr., Inc., ASBCA Nos. 59402, 59601, 21-1 BCA ¶ 37,751 
at 183,241 (citing Wilner v. United States, 23 Cl. Ct. 241, 245 (1991)). 
 
In Wunderlich Contracting Co. v. United States, the Court of Claims cautioned 
that “[b]road generalities and inferences to the effect that defendant must have caused 
some delay and damage because the contract took 318 days longer to complete than 
anticipated are not sufficient. . . .  It is incumbent upon plaintiffs to show the nature 
and extent of the various delays for which damages are claimed and to connect them to 

11 
 
some act of commission or omission on defendant’s part.”  173 Ct. Cl. 180, 199-200, 
351 F.2d 956, 968-69 (1965) (citations omitted).  Here, appellant admits the 
importance of the critical path, stating that “[c]ompensable delays, including 
apportionable delays, must occur on the critical path of a construction project” (app. 
br. at 20 (quoting Tyger Constr. Co. v. United States, 31 Fed. Cl. 177, 257 (1994))).  
Yet appellant fails to offer such evidence. 
 
Instead, appellant alleges that it is “not responsible for any of the cost 
overruns,” basing its argument upon Mr. Reichard’s assertion that the “USAF accepted 
responsibility for 97% of the delay” (app. br. at 24; finding 19).  As noted by the 
government, Wright Brothers has failed to discuss the impact of its own delay in the 
context of a critical path analysis, or any proper analysis offered by Mr. Reichard 
(gov’t br. at 6).  Appellant’s failure to do so is fatal to its claim.  Page Constr. Co., 
ASBCA No. 30350, 86-2 BCA ¶ 18,755 at 94,442 (contractor failed to demonstrate 
“by critical path or similar analysis that any delay by the Government . . . caused a 
delay in completion of the contract beyond the . . . completion date agreed upon in by 
[sic] Modification”).  “The fact that the Government added work does not, without 
more, establish an impact to the critical path.  It remains appellant’s burden to 
establish that additional work delayed its completion of the project.”  Matcon 
Diamond, Inc., ASBCA No. 59637, 20-1 BCA ¶ 37,532 at 182,259.  Wright Brothers 
simply failed to meet its burden here. 
 
The same is true regarding the linchpin holding together appellant’s delay 
analysis - as stated by Mr. Reichard and as argued by appellant in its briefs - that the 
government accepted responsibility for all delays because it issued modifications 
extending the contract completion date (findings 6-7, app. br. at 1-2, 5; app. reply br. 
at 3-4).  According to appellant, “contract completion occurred 1,021 days after the 
original contract completion date.  USAF accepted responsibility for 986 days and 
assessed liquidated damages for 35 days.  In other words, a one-year project became a 
near four- year project through no fault of WBTBC.”  (App. reply br. at 2)  
Notwithstanding appellant’s assertion to the contrary, an extension of time granted by 
the contracting officer does not equate to an administrative determination that the 
delay was not due to the fault or negligence of the appellant.  As recognized by the 
Federal Circuit in England v. Sherman R. Smoot Corp., “the mere grant by the 
government of a contract extension does not indicate that the government is at fault; 
rather, one of a number of other events external to the government could be 
responsible.  In such a situation, a presumption that the government is responsible for 
the delay is unwarranted, and nothing in the Federal Acquisition Regulations supports 
such an assumption.”  388 F.3d 844, 857 (Fed. Cir. 2004). 
 
The same is true regarding appellant’s reliance upon statements contained in a 
contracting officer’s final decision.  Citing as support the final decision, appellant 
states that “[a] total of 659 days were added to the period of performance of which 583 

12 
 
days have been accepted by the Government as Government delays” (app. br. at 2 
(citing R4, tab 109 at 2)).  Admittedly, the contracting officer’s final decision states, 
“[a] total of 659 days were added to the period of performance of which 583 days were 
contributable to Government delay” (finding 16).  However, appellant’s reliance upon 
statements contained in the final decision as support to establish its disruption claim is 
misplaced, because our review here is de novo, and “once an action is brought 
following a contracting officer's decision, the parties start . . . before the [B]oard with a 
clean slate.”  Wilner v. United States, 24 F.3d 1397, 1401-02 (Fed. Cir. 1994); Mule 
Eng’g, Inc., ASBCA No. 60854 et al., 17-1 BCA ¶ 36,728 at 178,892 (“when an 
appeal is filed following a CO’s final decision, the findings of fact in that decision are 
not binding and are not entitled to any deference”).  Moreover, to the extent the 
government delayed the original project, Wright Brothers still cannot recover for what 
would be concurrent delay, such as problems experienced by appellant with regards to 
concrete placement (finding 3).  Sauer, Inc. v. Danzig, 224 F.3d 1340, 1348 (Fed. Cir. 
2000); Essex Electro Eng’rs, Inc., 224 F.3d at 1295; Merritt–Chapman & Scott 
Corp. v. United States, 208 Ct. Cl. 639, 649-50, 528 F.2d 1392, 1397-98 (1976). 
 
Although appellant’s brief sets forth a litany of alleged delays and disruption 
(app. br. at 2-17), appellant readily admits, that “[t]he increased compensation 
WBTBC requests is not, however, based upon the specific costs associated with 
individual changes in work,” rather, “[i]t is based on the increase in costs necessarily 
caused by the combined effect of the numerous delays due to Government acts that 
changed the project from a one (1) year project to a four (4) year project through no 
fault of WBTBC” (app. br. at 1).  Again, appellant has provided no context to support 
a finding that the alleged delays and disruption ran through the project’s critical path, 
and, as such, appellant has failed to meet its burden of proof.  We note that, in addition 
to time extensions, the government already has compensated Wright Brothers an 
additional $628,310.13 as reimbursement for its delay damages (finding 4).  The fact 
that appellant already has received considerable compensation is all the more reason to 
require particularity and that appellant establish an impact to the project’s critical path 
to ensure not only that appellant is entitled to the additional compensation being 
sought, but that it has not already received such compensation from the government 
for those costs.  As an adjudicative body, it simply is not our role to piece together a 
contractor’s allegations of delay and disruption to determine their impact upon the 
contractor’s performance.  Matcon Diamond, Inc., 20-1 BCA ¶ 37,532 at 182,259 
(“[t]he Board is not required to sort through the record and piece together the type of 
delay analysis necessary for appellant to prove entitlement” (citing Essential Constr. 
Co. and Himount Constructors Ltd., Joint Venture, ASBCA No. 18706, 89-2 BCA ¶ 
21,632 at 108,833 (Board declining to “comb through [the] record” and “become 
appellant’s advocate” in appeal of delay claim))). 
 
The fallacy in appellant’s approach, and its misplaced reliance upon 
Mr. Reichard’s opinion, is evident in the statement set forth in Mr. Reichard’s second 

13 
 
declaration to the effect that, although a critical path “analysis may be required to 
determine the amount of excusable and/or compensable delay,” such an “analysis was 
not required” here because “the amount of excusable and/or compensable delay was 
determined through the Government granting time extensions due to its actions” 
(finding 20).  Notwithstanding Mr. Reichard’s contrary assertion, for appellant to 
prevail in this appeal, it is incumbent upon Wright Brothers to establish that the 
government’s actions affected activities on the critical path, and that the delays of the 
parties were not otherwise concurrent or intertwined. 
 
With regard to Mr. Reichard’s proffered opinions, the extent to which this 
tribunal relies upon expert testimony “is an evidentiary determination left to the sound 
discretion of the Board.”  Lebolo-Watts Constructors 01 JV, LCC, ASBCA No. 59740 
et al., 21-1 BCA ¶ 37,789 at 183,427.  That sound discretion includes deciding which 
expert statements and positions to accept, and which to reject.  Southwest Marine, Inc., 
San Pedro Div., ASBCA No. 28196, 86-2 BCA ¶ 19,005 at 95,980 (“trier of fact is not 
bound by expert testimony and may substitute his common sense judgment for that of 
the expert”).  Here, the analysis conducted by Mr. Reichard fails to establish by 
preponderant evidence appellant’s entitlement to additional compensation based upon 
alleged government delay and disruption.  L.B. Samford, Inc., ASBCA No. 32645, 93-
1 BCA ¶ 25,228 at 125,660 (“[g]eneralized conclusory, unsupported opinion type 
statements do not demand weight when such statements are little more than 
self- serving conclusions”).  Accordingly, we find the conclusions reached by 
Mr. Reichard in his summary review to be of little benefit in deciding this appeal. 
 
In its reply brief, Wright Brothers argues that “Mr. Reichard’s opinions, many 
of which are on ultimate issues, have not been refuted by the Government through any 
countervailing expert analysis and no inaccuracy in calculation or accounting has been 
presented in response,” and that “[n]o authority relied upon by the Government 
involved or stands for the legal proposition that a total cost damage claim supported by 
unrefuted expert opinion can be rejected” (app. reply br. at 4).  In a letter subsequently 
submitted to the Board, objecting to the government’s request to file a sur-reply on this 
issue, appellant clarified that it does not argue that, absent a “countervailing expert” 
analysis, “the Board must accept WBTBC’s expert’s proof” (Bd. corr. ltr. dtd. 
July 18, 2022 at 2).  On this point, as clarified by appellant, we agree.  The 
government’s decision not to present countervailing expert testimony is not a fatal 
arrow in appellant’s argumentative quiver. 
 
III.  Appellant has Failed to Establish Entitlement Pursuant to the Theory of 
Cardinal Change 
 
Appellant argues that the government’s actions constitute a cardinal change to 
the contract, and that appellant “is entitled to increased compensation due to that 

14 
 
change” (app. br. at 19).5  In support of its argument, appellant cites decisions of the 
Court of Federal Claims for the proposition that a cardinal change occurs when work 
performed is drastically different or changes in work alter the nature of what is 
constructed (app. br. at 17-18 (citing Huffman Bldg. P, LLC v. United States, 152 Fed. 
Cl. 476, 484 (2021) (quoting Allied Materials & Equip. Co. v. United States, 215 Ct. 
Cl. 406, 409, 569 F.2d 562, 563-564) (1978)); Aircraft Charter Sols., Inc. v. United 
States, 109 Fed. Cl. 398, 410 (2013) (quoting Air-A-Plane Corp. v. United States, 187 
Ct. Cl. 269, 275-276, 408 F.2d 1030, 1033 (1969))).6  The government responds, 
stating appellant’s “general allegations of delays are not changes so profound that they 
are not redressable under the contract, nor do they demonstrate that the government is 
in breach of the contract, which Appellant must show for a cardinal change” (gov’t br. 
at 43-44). 
 
Appellant properly notes that “[w]hether a change is cardinal is principally a 
question of fact” (app. br. at 18 (citing Becho, Inc. v. United States, 47 Fed. Cl. 595, 
601 (2000) (citation omitted))).  Appellant’s cardinal change argument is based upon 
the additional time necessary to complete the project and is dependent upon a finding 
 
5 The government argues that Wright Brothers “never raised its cardinal change theory 
of recovery until its complaint” (gov’t br. at 45).  Appellant disagrees, stating, 
“on May 30, 2019, WBTBC wrote to the Government stating ‘the extension of 
time required for performance also supports an equitable adjustment because a 
cardinal change to the contract occurred’” (app. reply br. at 13).  We agree with 
appellant that appellant asserted cardinal change as part of its May 30, 2019, 
claim (finding 9). 
 
6 We note that decisions of the Court of Federal Claims, are “neither binding upon this 
tribunal, nor are they even binding in other matters pending before the Court of 
Federal Claims.”  Northrop Grumman Corp., ASBCA No. 62165, 21-1 BCA 
¶ 37,922 at 184,180 n.8) (citing C.R. Pittman Constr. Co., Inc., ASBCA 
No. 57387 et al., 15-1 BCA ¶ 35,881 at 175,427 n.6 (Court of Federal Claims 
decisions are not binding precedent for the ASBCA); Zaccari v. United States, 
142 Fed. Cl. 456, 462 n.6 (2019) (“Decisions of the United States Court of 
Federal Claims do not bind the court in this matter but may provide persuasive 
authority”).  Decisions of the former United States Court of Claims, however, 
“are binding precedent . . . which must be followed by the Board.”  E.L. Hamm 
& Associates, Inc., ASBCA No. 43972, 94-2 BCA ¶ 26,724 at 132,940 (citing 
South Corp. v. United States, 690 F.2d 1368, 1370-71 (Fed. Cir. 1982), which 
in the first appeal to be heard by the newly-established Federal Circuit held that 
“the holdings of our predecessor courts, the United States Court of Claims and 
the United States Court of Customs and Patent Appeals, announced by those 
courts before the close of business September 30, 1982, shall be binding as 
precedent in this court”)). 

15 
 
that the government was responsible for the alleged delays.  Indeed, the sole basis 
asserted by appellant in its briefs as support for its cardinal change theory is “[t]he 
overall change in the contract from one that may take one (1) year to a project 
requiring almost four (4) years far exceeds the obligation WBTBC was originally 
contracted to perform” (app. br. at 18).  According to appellant, “the Government, 
through a variety of cumulative delays, changed the Project for a one (1) year Project 
to a four (4) year Project,” and “[t]his obvious material and drastic change resulted in a 
Project of an entirely different nature than the original Project contracted” (app. br. 
at 19).  As we already have found, however, appellant has failed to establish, through 
examination of the project’s critical path, the government’s culpability for the alleged 
delays and disruption, and, as such, appellant has failed to meet its burden of proof. 
 
Appellant cites F.H. McGraw & Co. v. United States, 131 Ct. Cl. 501, 503, 
130 F. Supp. 394, 395 (1955), for the proposition that “[m]uch smaller additions to the 
time required for performance have justified cardinal change price increases” (app. br. 
at 18).  However, in F.H. McGraw, the court expressly held that changes made under a 
change order “were within the general scope of the contract,” and though “extensive, 
they were not so extensive as to be a cardinal change.”  131 Ct. Cl. at 506, 130 F. 
Supp. at 397. 
 
Appellant also cites the Court of Federal Claims’ decision in ThermoCor, Inc. 
v. United States, 35 Fed. Cl. 480, 490 (1996), for the proposition that “[a] 
determination of the scope and nature of alleged changes requires a fact-intensive 
inquiry into the events that led to the excess work and their effect on the parties,” and 
that “[t]he court must investigate the contract as a whole to determine whether the 
government is responsible for the contractor’s difficulties” (app. br. at 18).  However, 
appellant’s briefs - submitted in support of its request for a decision pursuant to 
Rule 11 - fail to present for our review the “fact-intensive inquiry” or the details 
necessary to allow us to “to determine whether the government is responsible for the 
contractor’s difficulties.” 35 Fed. Cl. at 490.  Rather, appellant offers only the general 
proposition that “[t]he overall change in the contract from one that may take one 
(1) year to a project requiring almost four (4) years far exceeds the obligation WBTBC 
was originally contracted to perform” (app. br. at 18).  Again, it is not the 
responsibility of the Board to provide, in the first instance, appellant’s factual and 
legal analysis.  AAR Airlift Group, Inc., ASBCA No. 59708, 19-1 BCA ¶ 37,462 
at 182,007 (citing SKE Base Servs. Gmbh, ASBCA No. 60101, 18-1 BCA ¶ 37,159 
at 180,903 (“We won’t do appellant’s work for it.”)). 
 
We note also that ThermoCor concerned a contractor seeking additional costs 
of processing and transporting offsite excavated contaminated soils greater than the 
stated basic contract quantity.  The contractor claimed the amount was so great as to 
constitute a cardinal change to the contract.  However, the court was unable to 
determine whether the quantity increases “reached a point beyond reasonable limits,” 

16 
 
stating, “[g]iven the potential extent of the overruns, the court could find a cardinal 
change; however, it is precluded from entering summary judgment due to the contrary 
assertions about the magnitude of the overruns.”  Id. at 491-92. 
 
Appellant cites Saddler v. United States, 152 Ct. Cl. 557, 287 F.2d 411 (1961), 
for the proposition that “a significant increase in work, even though the same type of 
work, justifies . . . an increase in contract compensation” (app. br. at 19).  In Saddler, 
the court found a cardinal change to the contract where the contractor was required to 
construct a much larger embankment than was specified in the contract, requiring 
almost twice the quantity of material than the contractor was contracted to build and 
necessitating bringing of equipment 100 miles back to the job site, which the court 
labeled a cardinal alteration outside scope of contract.  152 Ct. Cl. at 563-64, 287 F.2d 
at 414-15.  That obviously is not the situation here, as the appellant’s allegation of 
cardinal change is based on the additional time it took to complete the contract, rather 
than an order of magnitude change to the actual construction project.  Indeed, the 
contract work appellant performed here did not result in a materially different project, 
and “was essentially the same work as the parties bargained for when the contract was 
awarded.”  Air-A-Plane Corp., 187 Ct. Cl. at 275, 408 F.2d at 1033. 
 
IV.  Appellant has Failed to Establish Entitlement Pursuant to an Alleged 
Constructive Change to the Contract or Suspension of Work 
 
Appellant argues that it is entitled to additional compensation pursuant to the 
legal doctrine of constructive change (app. br. at 19-21).  Appellant’s initial Rule 11 
brief discusses several cases encapsulating the concept of constructive change (id. 
at 20-21) (citing Merritt-Chapman & Scott Corp. v. United States, 429 F.2d 431, 443-
45 (1970) (419-day delay for subsurface exploratory work constituted constructive 
suspension of the contract); Sipco Servs. & Marine v. United States, 41 Fed. Cl. 196, 
225-27 (1998) (termination for default converted to convenience termination because 
of government over inspection); Metric Constr. Co. v. United States, 81 Fed. Cl. 804 
(2008) (constructive change)). 
 
Wright Brothers has the burden of establishing by a preponderance of the 
evidence that the government’s actions amounted to a constructive change to the 
contract.   CDM Constructors, Inc., ASBCA No. 60454, 18-1 BCA ¶ 37,190 
at 181,011 (citing Amos & Andrews Plumbing, Inc., ASBCA No. 29142, 86-2 BCA 
¶ 18,960 at 95,738 (citing Teledyne McCormick-Selph v. United States, 218 Ct. Cl. 
513, 517, 588 F.2d 808, 810 (1978)).  Appellant’s constructive change argument is 
based on the same theory already espoused to the effect that “[t]he aggregate extension 
of all the time for performance in this matter clearly caused [appellant] to perform 
work in addition to and different work from the work originally required under the 
contract,” that “[t]his work was required by the Government’s cumulative delay for 
which it has accepted responsibility,” and that “[t]he Government extending the 

17 
 
Project from one (1) to four (4) years is a constructive change for which [appellant] is 
entitled to an increase in contract price” (app. br. at 21). 
 
Appellant’s constructive change argument, like its argument regarding cardinal 
change, depends upon a finding that the government was responsible for all alleged 
delays.  Again, by failing to establish, through examination of the project’s critical 
path, the government’s culpability for the alleged delays and disruption, appellant has 
failed to meet its burden of proof. 
 
 The same is true regarding appellant’s claim based upon an alleged suspension 
of work pursuant to FAR 52.242-14 Suspension of Work (app. br. at 21-23).   
With regard to FAR 52.242-14, appellant’s argument in support is nothing more than a 
conclusion, stating that, “[f]or the reasons explained, the Government caused and 
accepted responsibility for the delays,” that “[t]he delays were excessive and 
unreasonable,” and that “[t]his delay has caused [appellant] to incur additional costs 
for which it should be compensated” (app. br. at 23).  Again, appellant’s Rule 11 
submissions fail to present any analysis establishing the impact of the alleged 
suspension of work on the critical path or Wright Brothers’ ability to perform the 
contract (app. br. at 21-23). 
 
 Appellant cites several cases discussing suspension of work in the context of a 
contractor’s delay claim (app. br. at 22-23) (citing John A. Johnson & Sons v. United 
States, 180 Ct. Cl. 969, 985 (1967) (contractor entitled to price adjustment under 
suspension of work clause where there was “no finding, and no evidence that any of 
the delays that occurred in this case were due to the fault or negligence of the 
plaintiff”); Blinderman Constr. Co. v. United States, 695 F.2d 552, 559 (Fed. Cir. 
1982) (contractor claim pursuant to suspension of work clause remanded to ASBCA 
for a determination whether delays were concurrent, stating “[g]enerally, courts will 
deny recovery where the delays are ‘concurrent or intertwined’ and the contractor has 
not met its burden of separating its delays from those chargeable to the Government”); 
Beauchamp Constr. Co. v. United States, 14 Cl. Ct. 430, 437 (1988) (“contractor must 
concomitantly show that it was not delayed by any concurrent cause that would have 
independently generated the delay during the same time period even if it does not 
predominate over the government’s action as the cause of the delay”); R.P. Richards 
Constr. Co. v. United States, 51 Fed. Cl. 116, 124 (2001) (contractor entitled to 
10 working-day delay awaiting government direction regarding differing site 
condition). 
 
 However, as the cases cited by appellant attest, to prevail, Wright Brothers must 
establish that none of the delays experienced were concurrent or the fault of appellant, 
something appellant has failed to do.  Indeed, appellant admits that “[t]he burden of 
proof is upon the contractor to establish that defendant did in fact cause delay, and 
further that any delay adversely affected the project, entitling the plaintiff to an 

18 
 
equitable adjustment,” and that “[w]hether a particular delay is reasonable or not 
depends upon the circumstances of the particular case” (app. br. at 22 (quoting 
Commercial Contractors, Inc. v. United States, 29 Fed. Cl. 654, 662 (1993)).  
Appellant’s general allegations and conclusions under the guise of constructive change 
and suspension of work, without the requisite factual analysis, are wholly insufficient 
to establish appellant’s entitlement pursuant to either legal theory. 
 
V. Appellant has Failed to Establish Entitlement Pursuant to Alleged Unjust 
Enrichment / Breach of the Covenant of Good Faith and Fair Dealing 
 
Appellant’s initial Rule 11 brief dedicates one paragraph to its argument that 
the government’s actions resulted in unjust enrichment and breached the covenant of 
good faith and fair dealings (app. br. at 23).  Appellant cites Lewis-Nicholson, Inc. v. 
United States, 213 Ct. Cl. 192, 204-205, 550 F.2d 26, 32 (1977), for the general 
proposition that parties to a contract have a duty not to do anything that would prevent, 
hinder, or delay another party’s performance (id. at 32).  As with its arguments 
regarding constructive change and suspension of work, appellant again offers only a 
general conclusion as support for its position, stating that “[t]he delays accepted and 
admitted by the Government and resulting in four (4) year performance period 
establishes that the Government breached the duty to not hinder and [appellant] is 
entitled to an increase in contract price” (id.).  As we already have held, appellant has 
failed to establish that the government is responsible for the alleged four-year 
performance period.  Appellant’s summary allegation under the breach of a duty not to 
prevent, hinder, or delay is likewise wholly insufficient to establish appellant’s 
entitlement pursuant these legal theories. 
 
Wright Brothers also summarily asserts in one paragraph entitlement to 
compensation for additional increased costs allegedly incurred regarding “concrete 
replacement work” (app. br. at 25; app. reply br. at 14 (we note that both of appellant’s 
Rule 11 briefs contain identical paragraphs on this issue)).  Other than allege that 
“[t]he Government did not dispute that there was a change in the contract” relating to 
this work, appellant fails to otherwise explain the basis for this claim or even quantify 
the amount requested (app. br. at 25; app. reply br. at 14 ).  Instead, appellant simply 
cites to various documents contained in the Rule 4 file (app. br. at 25; app. reply br. 
at 14 (both citing app. supp. R4, tabs 20-27)).  Without more, we are unable to make 
any determination regarding appellant’s entitlement to these unquantified costs.  
Appellant has failed to establish entitlement to them. 
 
VI.  Appellant’s Quantum Calculations 
 
By Order dated November 3, 2020, the Board instructed the parties to state their 
election whether to proceed to a hearing pursuant to Board Rule 10, or on the briefs 
pursuant to Board Rule 11.  Our Order stated also that the Board intends to decide 

19 
 
entitlement only, and if either party preferred that both entitlement and quantum be 
heard, the party should so advise the Board.  By letter dated March 1, 2021, appellant 
informed the Board that the parties “agreed to present this matter under a Rule 11 
submission on the record.”  Neither party requested that we consider quantum with 
entitlement.  However, both parties’ briefs contain extensive sections discussing 
quantum, including appellant’s reliance upon a modified total cost method for proving 
damages (app. br. at 24-25; app. reply br. at 4-13; gov’t br. at 13-40; gov’t reply br. 
at 5-7). 
 
Because we find against appellant on entitlement, we need not address at any 
length the issue of quantum, including appellant’s reliance upon a modified total cost 
method.  We note that, as with the issue of entitlement, appellant failed to provide any 
analysis establishing that the government actions affected activities on the critical path, 
and without such an analysis, Wright Brothers likewise cannot establish entitlement to 
reimbursement based upon the total cost method.  WRB Corp. et al., A Joint Venture 
d/b/a Robertson Constr. Co. v. United States, 183 Ct. Cl. 409, 426 (1968) (total cost 
recovery requires contractor to establish, among other things, that it was not 
responsible for the added expenses); Lebolo-Watts Constructors 01 JV, LLC, 
19-1 BCA ¶ 37,301 at 181,456 (“Claims based upon ‘total costs’ are ‘looked upon 
with disfavor and recovery on that basis is sharply restricted since they call upon one 
party to indemnify the other’”) (citations omitted). 
 
CONCLUSION 
 
 We have considered appellant’s remaining arguments and are not persuaded by 
them.  The appeal is denied. 
 
 Dated:  December 30, 2022 
 
 
 
 
 
 
 
 
 
 
 
(Signatures continued) 
 
 
 
 
DAVID B. STINSON 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
 

20 
 
I concur 
 
 
 
RICHARD SHACKLEFORD 
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 
 
 
 I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA No. 62285,
 Appeal of Wright 
Brothers, the Building Company, Eagle LLC, rendered in conformance with the Board’s 
Charter. 
 
 Dated:  December 30, 2022 
 
 
 
 
 
 
 
 
PAULLA K. GATES-LEWIS 
Recorder, Armed Services 
Board of Contract Appeals