DENIED:  June 30, 2026
CBCA 8034
ALL PHASE SERVICES, INC.,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
Lawrence J. Sklute of Sklute & Associates, Potomac, MD, counsel for Appellant.
Jennifer L. Hedge, Office of General Counsel, Department of Veterans Affairs,
Pittsburgh, PA, counsel for Respondent.
Before Board Judges BEARDSLEY (Chair), SHERIDAN, and SULLIVAN.
SULLIVAN, Board Judge.
All Phase Services, Inc. (APS) appealed the termination of its contract for default. 
Previously, the Board found that the Department of Veterans Affairs (VA) established its
prima facie case of default.  All Phase Services, Inc. v. Department of Veterans Affairs,
CBCA 8034, 25-1 BCA ¶ 38,894, reconsideration denied, 25-1 BCA ¶ 38,923.  In its
complaint, APS alleged that its default should be excused because the contracting officer
ignored evidence of a mistake-in-bid.  We determined that we possessed jurisdiction to
consider the defense, All Phase Services, Inc. v. Department of Veterans Affairs,
CBCA 8034, 25-1 BCA ¶ 38,893, but found that APS failed to provide clear and convincing
evidence of the mistake-in-bid and that APS waited too long to assert its mistake-in-bid.  All


CBCA 8034 2
Phase Services, Inc. v. Department of Veterans Affairs, CBCA 8034, et al., 26-1 BCA
¶ 38,945 (2025).
The Board conducted a hearing in February 2026 to hear evidence on APS’s defense
that its performance on the contract should be excused because of a defect in the
specifications.  Because APS has not proven that the specifications were defective, we deny
APS’s appeal.1
Findings of Fact
I. Design Specifications Resulted in Buried Thru-Walls
VA contracted with APS for the re-roofing of fifty-five roofs on the VA Medical
Center located in Buffalo, New York.  APS worked on seven roofs before VA terminated the
contract for failure to make progress.  All Phase Services, 25-1 BCA at 189,324.  APS alleges
that the drawings and specifications for the project contained a defect that would allow water
into the roofing system.  The purportedly defective specification required APS to build the
roofing material to a height that buried structures, called thru-walls, located just above the
roof deck.  APS contends that, because the thru-walls would be buried, any water that
drained out of them would end up in the roofing system and void the warranty of a watertight
roof that APS was contracted to provide.
The medical center is a multi-story, limestone-covered building.  When it was built,
thru-wall structures were inserted at every floor level and above every door and window. 
Appeal File, Exhibits 411, 412; Transcript, Day 2 at 346-48; Day 4 at 54.2  The purpose of
the thru-wall structure is to allow any water that enters behind the limestone panels to be
directed back to the outside of the building.  Transcript, Day 2 at 81.  The thru-wall structure
is lined with thin copper flashing that is bent to allow the water to weep out of the building. 
1 APS also appealed a demand from the contracting officer, issued in January
2025, for the costs to replace the seven roofs that APS had worked on because the roofs were
found to contain water.  The Board docketed that appeal as CBCA 8425 and consolidated it
with this appeal.  The Board also heard evidence at the hearing concerning the issues raised
in that appeal.  However, because the Board requires further briefing from the parties on
several issues presented in CBCA 8425, the Board has unconsolidated the appeals in a
separate order issued with this decision.
2 All exhibits are found in the appeal file, unless otherwise noted.  The page
numbers cited are the Bates numbers on the exhibits.  “Transcript, Day X at X” refers to the
transcript of the hearing conducted February 23-26, 2026 (Days 1-4).

CBCA 8034 3
See Transcript, Day 2 at 79, 95.  If the water runs down the building to a roof deck, the water
drains out from that roof.  Id. at 132.
There are also thru-wall structures on the parapet walls surrounding the roof decks. 
The drawings required the contractor to either cut or leave the flashings for these thru-walls. 
Exhibit 1 at 32 n.1, 2.  Regarding the thru-wall structures on the non-parapet walls, the
contract directed that the contractor again either cut or leave the flashings but did not
describe the structures to which they were attached as thru-walls.  Id. at n.8, 9.  Five of the
seven roofs that APS completed have non-parapet or rising walls.  Transcript, Day 2 at 159. 
APS did not provide information on how many of the other forty-eight roofs covered by the
contract had non-parapet walls with thru-wall structures.3  VA did not change the design or
the specifications for the contract that were issued after APS was terminated for default. 
Transcript, Day 4 at 91.
The lowest thru-wall structure in the non-parapet walls is located approximately
four-and-a-half inches off of the roof decks.  Transcript, Day 2 at 77.  When the building was
initially constructed, roofs did not have any insulation so any water seeping through the
lowest thru-wall structure would drop onto the roof deck.  Id.  Subsequent building codes
required insulation to be installed which raised the top of the roofing material to above the
lowest thru-wall structure.  See id.  Thus, when completed, the lowest thru-wall structure
would be blocked by the roofing material.  Id.  The roofing material that APS was contracted
to replace also covered or buried this lowest thru-wall.  Id. at 361.  VA did not report any
problems with water entering the building prior to APS’s contract.  Transcript, Day 4 at 67.
II. Expert Opinions
Both parties had experts testify on this issue.  Mr. McDonnell, an architect registered
in New York and APS’s expert, was qualified by the Board as an expert in roofing systems
and thru-wall flashings.  Transcript, Day 2 at 9-10, 65-66.  Mr. McDonnell testified that
water weeping out of the buried thru-wall flashings would go into the upper layers of the
insulation on the roof.  Id. at 85.  Mr. McDonnell opined that limestone is “a relatively
absorptive stone” that will become more absorptive as it ages and is abraded by weather and
pollution.  Id. at 122-23.  Mr. McDonnell testified that the buried thru-wall flashing would
not result in a watertight roofing system because water would enter the system through the
thru-wall structure.  Id. at 156-57.  Mr. McDonnell opined that these buried thru-walls could
3 When asked by the Board, APS’s expert could not say how many roofs had
these non-parapet walls with thru-wall structures.  Transcript, Day 3 at 42-43.  He explained
that he was focused on the seven roofs on which APS had worked.  Id. at 42.

CBCA 8034 4
be the cause of the water found in the roofing material, following the heavy amount of
precipitation in the winter of 2024-2025.  Id. at 262-65, 284.  However,  Mr. McDonnell also
testified that the water could have been caused by other factors.  Id. at 284.  And
Mr. McDonnell acknowledged that he had seen no evidence of water coming through the
buried thru-walls and could not estimate how much water may be present.  Id. at 336,
348-49.4
Mr. Sobeck, VA’s expert, was qualified as an expert in roofing and building
envelopes.  Transcript, Day 1 at 196.  Mr. Sobeck testified that, in his experience, when a
thru-wall flashing is buried and it causes a problem, the water finds its way into the building
itself.  Transcript, Day 4 at 45.  Mr. Sobeck saw no evidence that water was leaking through
the thru-walls when he inspected the roofs that APS worked on and testified that he had no
concerns about the buried thru-walls on the project.  Id. at 46, 47.  He opined that the
building was “well protected” with thru-wall structures above every window and at every
floor level to weep out water that may get in behind the limestone.  Id. at 74.
III. VA and the Architect Examined the Thru-Wall Issue
APS first raised the issue of the buried thru-walls in a request for information (RFI),
submitted in September 2022.  Exhibit 334 at 303.  APS submitted the RFI following a site
visit by the contractor that had installed the previous roof.5  Transcript, Day 3 at 116. 
According to the RFI, APS was concerned that water infiltration would void the
manufacturer’s warranty:
Tremco stated that moisture infiltration has been seen to shorten the life span
of nearly every roofing system.  Accordingly, All Phase Services has concerns
that the roofs containing these through walls will not be able to be warrantied
under Tremco due to this moisture infiltration.  Tremco will notify All Phase
whether it will not warranty the roof given the Government’s design defect. 
Accordingly, All Phase is apprehensive to allocate more time and resources
into roofs that will potentially need to be demolished and re-roofed due to the
Government’s defective design to be able to warranted.
4 Mr. McDonnell disagreed with Mr. Sobeck’s opinion regarding a “shot glass”
of water but did not offer his own estimate of the amount of water that may have entered the
building.  Transcript, Day 2 at 143-44, 337.
5 APS had asked that contractor to become its subcontractor for the contract. 
Transcript, Day 3 at 116.

CBCA 8034 5
Exhibit 334 at 303.
The architect of record for the project investigated the issue and determined that the
project could be completed as designed.  According to the architect, “any water entering the
walls or the parapets would be cut off from the existing wall flashing above and not be able
to continue down to the old flashing.”  Exhibit 334 at 306.  VA also received assurances from
Tremco, the manufacturer of the roofing material specified for use on the contract, that it
would still warranty its product with the presence of the thru-wall structures.  Id. at 305;
Transcript, Day 4 at 84-85.  In response to the RFI, VA directed APS to proceed with the
roofing work as designed.  Exhibit 334 at 302.
At the time that APS submitted the RFI, it had completed the roofing work on seven
roofs.  Transcript, Day 4 at 78.  Following VA’s RFI response, APS never mentioned the
issue again during contract performance, although it provided responses to one cure notice,
Exhibit 112, and two show cause notices, Exhibits 117, 121, regarding its delinquent
performance.6  APS presented no trial testimony regarding difficulties that it experienced
during construction as a result of the presence of the thru-walls.
APS offered no other evidence at hearing as to why its performance should be
excused.
Analysis
APS contends that the contract specifications that required the lowest thru-wall
structures on the non-parapet walls to be buried would allow water into the roofing system
installed by APS.  The presence of this water, APS argues, would void the warranty for the
roofs.  APS asserts that, because the roofs could not be warrantied, the specifications were
defective and its default should be excused.
Defective specifications can excuse non-performance or default by a contractor.  In
the face of drawings or direction that cannot “produce the desired result,” a contractor has
“a legal right of avoidance, thereby discharging his duty to perform, and relieving him of the
default termination and the consequences which flow therefrom.”  Seven Sciences, Inc.,
ASBCA 21079, 77-2 BCA ¶ 12,730, at 61,877.  “A failure of a contractor to comply with
6 APS also did not allege defective specifications in its complaint.  See
Complaint (Apr. 26, 2024).  APS first raised its allegation regarding the buried thru-walls as
part of a discovery dispute following the issuance of VA’s expert report.  Motion to Compel
Discovery (Aug. 31, 2025) at 2.

CBCA 8034 6
defective specifications may not serve as the basis for a default termination because by
writing those flawed directions, the Government has made performance with them
impossible.”  American Power, Inc., GSBCA 8752, 90-2 BCA ¶ 22,811, at 114,556,
reconsideration granted in part on other grounds, 90-3 BCA ¶ 33,983.  When seeking to
excuse performance due to defective specifications, the contractor must prove three elements: 
(1) that the specifications were defective; (2) “that the contractor’s difficulties were caused
by the defect; and (3) that the defect affected the contractor’s performance in such a way that
entitles the contractor to an extension of time or an excuse for stopping the performance.” 
Rowe, Inc. v. General Services Administration, GSBCA 14211, 01-2 BCA ¶ 31,630, at
156,275.  APS failed to prove these elements.
APS did not establish that the specification requirement to build the roofing material
with insulation so that the thru-wall structure is buried is a defect.  The roofing systems that
APS was hired to replace had buried thru-walls.  VA’s expert testified that, if buried
thru-walls are causing water to collect, the water will leak into the building.  VA did not
report problems with the water leaking into the building with the prior roof.  Although APS’s
expert testified that the thru-wall structure could allow water in, he did not quantify the
amount of water.  VA’s expert testified that the structure would not allow water to enter and
that the other building thru-wall structures above the buried one would be sufficient to weep
out any water that did enter.  VA’s expert testified that the amount of water that could
possibly collect was negligible.  APS has not established that the specification was defective.
APS also provided no evidence that its contract difficulties were caused by the
purported defect or that the purported defect delayed its performance.  APS notified VA of
the issue in an RFI.  In response, VA’s architect determined that the roof could be installed
as designed, and VA received assurances that Tremco, the roofing material supplier, would
warranty the roof.  At the time that APS submitted the RFI, it had already completed its work
on the seven roofs on which it worked under the contract.  It did not mention the thru-wall
issue in response to the contracting officer’s cure notice or show cause notices.
We have previously found that VA established its prima facie case that it properly
terminated APS’s contract for default for failure to make progress.  All Phase Services, 25-1
BCA at 189,326.  APS failed to establish that the specification was defective and provided
no other reason why its failure to make progress on the contract should be excused.  See 1-A
Construction & Fire, LLP v. Department of Agriculture, CBCA 2693, 15-1 BCA ¶ 35,913,
at 175,553.  Therefore, we deny APS’s appeal of VA’s termination for default.

CBCA 8034 7
Decision
APS’s appeal is DENIED.
    Marian E. Sullivan         
MARIAN E. SULLIVAN
Board Judge
We concur:
    Erica S. Beardsley              Patricia J. Sheridan      
ERICA S. BEARDSLEY PATRICIA J. SHERIDAN
Board Judge Board Judge