NOTE: This disposition is nonprecedential.

 

United States Court of Appeals 

for the Federal Circuit ______________________ 

LEBOLO-WATTS CONSTRUCTORS 01 JV, LLC,

Appellant

v.

SECRETARY OF THE ARMY,

Appellee

______________________ 

2021-1749

______________________ 

Appeal from the Armed Services Board of Contract Appeals in Nos. 59740, 60378, 60459, 60507, 60508, Administrative Judge J. Reid Prouty, Administrative Judge Reba 

Page, Administrative Judge Richard Shackleford.

______________________ 

Decided: February 18, 2022

______________________ 

HERMAN MARTIN BRAUDE, Braude Law Group, P.C., 

Rockville, MD, argued for appellant. 

 DANIEL B. VOLK, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, argued for appellee. Also represented by BRIAN 

M. BOYNTON, MARTIN F. HOCKEY, JR., PATRICIA M.

MCCARTHY. 

 ______________________ 

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2 LEBOLO-WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY

Before LOURIE, BRYSON, and CUNNINGHAM, Circuit 

Judges. 

BRYSON, Circuit Judge. 

In this appeal, Lebolo-Watts Constructors 01 JV, LLC, 

(“Lebolo”) seeks compensation for costs associated with the 

performance of a contract to construct a satellite communications operations center at Fort Meade, Maryland. The 

appeal includes a claim by Lebolo on its own behalf and

pass-through claims that Lebolo submitted on behalf of two 

of its subcontractors, Worch Electric Inc. (“Worch”) and 

Warner Mechanical Corporation (“Warner”). The Armed 

Services Board of Contract Appeals denied compensation 

as to all three claims, and this appeal followed. We affirm.

I 

A 

On November 24, 2010, the U.S. Army Corps of Engineers published a contract solicitation for construction of 

the Wideband Satellite Communication Operations Center 

(“WSOC”) at Fort Meade, Maryland. J.A. 379. In addition 

to the construction of the WSOC building, the contract 

called for the construction of a new electrical substation. 

J.A. 2. The new substation would receive power from existing electrical switchgear in another building known as 

“Building 8905” and would provide power to the WSOC 

building. Id.

The solicitation for the WSOC contract included Drawing No. EP 601, which depicted the existing switchgear in

Building 8905. J.A. 10478. That drawing was subsequently revised, and on December 20, 2010, it was issued 

as part of an amendment to the solicitation. J.A. 478. The 

drawing indicated that the contractor was to use spare cubicles five and ten in Building 8905 to connect to the 

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LEBOLO-WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 3

existing switchgear and to provide power to the new substation. J.A. 10435.

Drawing No. EP 601 depicted two circuit breakers, one 

in cubicle five and one in cubicle ten, in bold font. Id. Other 

circuit breakers depicted in the drawing were shown in 

light gray font. Id. As found by the Board, the typical convention is that bolded items on a drawing represent new 

work to indicate to the contractor what is within the contract’s scope of work. J.A. 79–80, 11687.

In addition to the bolded items, the drawing included 

four notes. The first note relevant here, note two, required 

the contractor to “furnish and install 1 set of 3 #2/0-AWGC and 1 #6-AWG-G.” J.A. 10435. The second note relevant 

here, note four, stated that the “circuit breaker installed in 

the existing switchgear shall be compatible with the existing switchgear,” and that such work should be included “in 

the coordination study.” Id. Neither the drawing nor the 

contract specifications explicitly stated whether the government or the contractor was to furnish the circuit breakers to be used in cubicles 5 and 10.

Lebolo submitted a bid and was ultimately awarded 

the WSOC contract. In January 2013, after work had begun on the contract, representatives of Lebolo and the government visited Building 8905. During the visit, it became 

clear that the government’s position was that Lebolo was 

responsible for furnishing the two circuit breakers referred 

to in Drawing No. EP 601. J.A. 11679. On March 15, 2013, 

Lebolo directed one of its contractors, Enterprise Electric

Company (“Enterprise”), to “furnish and install th[o]se 

breakers.” J.A. 2370. Enterprise did not obtain the circuit 

breakers and deliver them to Building 8905 until June 11, 

2013, causing a delay in the project. J.A. 7966.

Additional delays continued to impact the project after 

the delivery of the circuit breakers. For instance, Lebolo 

repeatedly notified Worch of deficiencies in its work from 

May through December 2013. J.A. 36–39. Lebolo also

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4 LEBOLO-WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY

charged Enterprise with having caused delay on the project 

starting in May 2013 and running through April 2014. J.A. 

48–49; Lebolo-Watts Constructors 01 JV, LLC, ASBCA Nos. 

59740, 60378, 60459, 60507, 60508, Transcript of Oct. 11, 

2017, Hearing at 172–74. In addition, it was discovered 

that the relays in the existing switchgear were not compatible with the new circuit breakers. The government then 

obtained and furnished new relays that were compatible

with the circuit breakers, resulting in a delay in contract 

completion. J.A. 40–41, 11709. Another period of delay of 

18 days resulted from issues with the existing differential 

relays in Building 8905 and out-of-phase conductors at the 

existing substation. Lebolo-Watts Constructors 01 JV, 

LLC, ASBCA Nos. 59740, 60378, 60459, 60507, 60508, R4, 

tab 338 (“Ockman Rep.”) at 40–42. Permanent power was 

finally made available at the new substation on December 

19, 2013. J.A. 48. 

Throughout the contract, Lebolo negotiated several 

contract modifications with the government to extend the 

completion date on the contract and to compensate Lebolo 

for various delays. In one of those modifications, Modification No. A00016, the government compensated Lebolo for, 

among other things, installing the new relays that the government furnished for use in the existing switchgear. J.A. 

5453. That modification included a release for all claims

“on behalf of the Contractor and its Subcontractors and 

Suppliers . . . for all delays related thereto.” Id. at 5454.

 Another modification, Modification No. P00030, provided Lebolo monetary compensation and a time extension 

for various delays associated with “power delays and substation changes.” J.A. 1112. The release language in that 

modification was very similar to the release language in 

Modification No. A00016, except that Modification No.

P00030 did not specifically reference the claims of Lebolo’s 

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LEBOLO-WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 5

subcontractors.1 Id. A contemporaneous email exchange 

between Lebolo and the government indicated that Lebolo 

intended to reserve the rights of its subcontractors to bring 

a delay claim for the issues addressed by Modification No.

P00030. See J.A. 5979–83. 

B 

After the completion of the project, Lebolo raised several claims to the contracting officer. When those claims 

were denied or not acted upon, Lebolo appealed to the 

Armed Services Board of Contract Appeals. 

Three claims are relevant to this appeal. Lebolo submitted one claim seeking compensation for the circuit 

breakers that it furnished for use in Building 8905. In the 

other two claims, which Lebolo submitted on behalf of 

Worch and Warner, Lebolo sought compensation for losses 

suffered by those subcontractors due to the delay in establishing permanent power at the new substation. 

With respect to Lebolo’s claim regarding the circuit 

breakers, the Board held that the contract required Lebolo 

to provide the circuit breakers, J.A. 81, but contained a patent ambiguity concerning the requirements for the circuit 

breakers to be used in Building 8905. J.A. 87. Because the 

ambiguity was patent, the Board held that Lebolo had a 

duty to inquire regarding the ambiguity before placing its 

bid. Id. Lebolo did not make such an inquiry, and therefore the Board resolved the ambiguity against Lebolo. Id. 

1 The release language in Modification No. P00030 

read, in part, “It is further understood and agreed that this 

adjustment constitutes compensation in full on behalf of 

the Contractor for all costs and markups directly or indirectly attributable for the change ordered, for all delays related thereto, for all extended overhead costs, and for 

performance of the change within the time frame stated.” 

J.A. 1112.

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6 LEBOLO-WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY

As a result, the Board held that Lebolo was responsible for 

the circuit breakers and was not entitled to compensation 

for furnishing them or for the delay resulting from the time 

required to obtain them. 

With respect to the pass-through subcontractor claims 

seeking recovery for the delay in providing permanent 

power to the project, the Board reached several conclusions. First, the Board found that, to the extent the subcontractors’ claims were seeking compensation for delay 

associated with the procurement of the circuit breakers, 

that delay was attributable to Lebolo and not the government, because the circuit breakers were the responsibility 

of Lebolo. J.A. 103.

Second, as to delay that was not associated with the 

circuit breakers, the Board found that Lebolo had waived 

the rights of its subcontractors to raise delay claims regarding the provision of permanent power when Lebolo agreed 

to Modification No. P00030. J.A. 98. The Board held that 

the release language in that modification, which waived 

the rights of “the Contractor . . . for all delays related 

thereto,” was unambiguous, because subcontractors are 

not in privity of contract with the government and can raise 

pass-through claims only through the general contractor. 

J.A. 98 & n.50. According to the Board, because the subcontractors’ rights were waived in Modification No.

P00030, the government was not required to pay compensation for any delay associated with the provision of permanent power. J.A. 99.

Third, the Board found that, even if the subcontractors’ 

rights were not waived, those two claims lacked merit because there was concurrent contractor-caused delay 

throughout the relevant period. Specifically, the Board 

found that four categories of contractor activity resulted in 

a total of 353 days of delay on the project: “late finish of 

masonry walls; slow progress with electrical work; late 

commissioning of the substation; and slow progress with 

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LEBOLO-WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 7

testing/late substantial completion as-built schedule.” J.A. 

29–30. In other words, the entirety of the delay on the project was at least partially attributable to the contractor because the project was delayed in total by 353 days. J.A. 61. 

The Board concluded that the contractors’ actions precluded recovery because Lebolo and its subcontractors were 

“responsible for concurrent and non-concurrent delay” during the periods of delay Lebolo asserted. J.A. 115.

Following the Board’s denial of those three claims, 

Lebolo appealed to this court.

II

We review the Board’s conclusions of law de novo; we

may set aside the Board’s factual findings if they are 

“fraudulent, arbitrary, or capricious”; “so grossly erroneous 

as to necessarily imply bad faith;” or “not supported by substantial evidence.” Sharp Elecs. Corp. v. McHugh, 707 F.3d 

1367, 1371 (Fed. Cir. 2013); 41 U.S.C. § 7107(b). Contract 

interpretation is a question of law. Premier Off. Complex 

of Parma, LLC v. United States, 916 F.3d 1006, 1011 (Fed. 

Cir. 2019). 

A 

Lebolo first argues that the Board erred in determining 

that the contract required Lebolo to furnish the circuit 

breakers used in Building 8905. In Lebolo’s view, Drawing 

No. EP 601 unambiguously requires the government to furnish the circuit breakers. In the event that the drawing is 

deemed ambiguous, Lebolo argues, the ambiguity is latent 

and the doctrine of contra proferentem2 applies. We 

2 Under the doctrine of contra proferentem, a contract provision that is latently ambiguous is construed 

against the drafter. HPI/GSA 3C, LLC v. Perry, 364 F.3d 

1327, 1334 (Fed. Cir. 2004). As applied here, if the contract 

were deemed latently ambiguous, the contract would be 

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8 LEBOLO-WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY

conclude that the contract was patently ambiguous as to

the circuit breakers.

There are several indications that the contract required Lebolo to furnish the circuit breakers. First, the circuit breakers are depicted in bold font in Drawing No. EP 

601. J.A. 10435. The Board accepted the government’s assertion that the use of bold markings is a “traditional design convention” that indicates “new work for the 

contractor.” J.A. 79–80. We sustain the Board’s finding 

that the depiction of the circuit breakers in bold suggested 

that the circuit breakers represented new work to be done 

by the contractor.

Second, note four on Drawing No. EP 601 provides that 

the “circuit breaker installed in the existing switchgear 

shall be compatible with the existing switchgear.” J.A. 

10435. Lebolo points to the past tense use of “installed” as 

evidence that the circuit breakers would already be provided in the spare cubicles. Appellant’s Br. 42. However, 

the imperative “shall be” suggests that some action is required on the part of the contractor. If the circuit breakers 

had already been installed, there would be no need to determine whether the existing circuit breakers were compatible with the existing switchgear, and note four would 

be pointless. 

Third, when Lebolo solicited bids from potential subcontractors, one of the bidders, 1st Electric Inc., included 

the circuit breakers in its bid. J.A. 10495. Lebolo argues 

that 1st Electric’s bid referred to “existing unused breakers 

in the ‘spare’ cubicles” and therefore did not include furnishing new circuit breakers. Appellant’s Br. 48–49. The 

Board, however, found that “1st Electric did include the[] 

construed to require the government, which drafted the solicitation, to furnish the circuit breakers used in Building 

8905.

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LEBOLO-WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 9

breakers in its bid.” J.A. 13. That finding is consistent 

with the language in 1st Electric’s bid and is thus supported by substantial evidence.

Although the evidence supporting the government’s interpretation of the contract is strong, there is some evidence in favor of Lebolo’s interpretation. For instance, note 

2 of Drawing No. EP 601 uses the phrase “furnish and install” to identify other equipment that Lebolo was responsible for furnishing, but Drawing No. EP 601 did not use 

that language to refer to the circuit breakers. J.A. 10435. 

Additionally, the contract specifications described other 

circuit breakers that were to be furnished and installed by 

Lebolo but did not describe the circuit breakers to be used 

in Building 8905. See, e.g., J.A. 9658. Finally, three of the 

four electrical subcontractors that submitted bids to Lebolo 

apparently did not include the circuit breakers in their 

bids. See J.A. 13.

In the end, we conclude that the contract is ambiguous 

with respect to the obligation to provide the circuit breakers. That conclusion requires us to address whether the 

ambiguity is latent or patent. As the Board explained, a 

patent ambiguity is one that is obvious, gross, or glaring, 

such that the contractor has a duty to inquire about it. 

NVT Techs., Inc. v. United States, 370 F.3d 1153, 1162

(Fed. Cir. 2004). 

Lebolo cites Mountain Home Contractors v. United 

States, 425 F.2d 1260 (Ct. Cl. 1970), for the proposition that 

“an ambiguity cannot be patent if it is so small or infinitesimal that there is no competitive advantage being taken by 

a prospective bidder” who remains silent in order to bid a 

lower amount. Appellant’s Br. 49–50. In Lebolo’s view, because the circuit breakers represented a very small portion

of the total contract price, the ambiguity regarding who 

was to furnish the circuit breakers cannot be patent. We 

disagree that Mountain Home compels that result.

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10 LEBOLO-WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY

In Mountain Home, the contract at issue was for the 

construction of 300 housing units. Mountain Home, 425 

F.2d at 1261. The contract provided for the installation of 

kitchen exhaust fans “where shown,” yet the notations on 

the drawings provided that the exhaust fans were to be bid 

as an alternative, and there was no alternative item listed 

in the specifications for kitchen exhaust fans. Id. at 1263. 

The court observed that the cost of the exhaust fans was 

$19,764, while the contract price was $4,918,600. Id. at 

1264. However, the court noted that the low cost of the 

fans relative to the contract price was “not the sole determinative factor” in its holding that the ambiguity was latent. Id. The overall question, in the court’s view, was 

whether the ambiguity was “glaring or substantial” such 

that it “impose[d] upon plaintiff the duty to seek clarification from the government.” Id. The relatively low cost of 

the fans was simply evidence that the ambiguity was not 

glaring or substantial.

Here, by contrast, the Board held that any ambiguity 

that existed in the contract with respect to the circuit 

breakers was patent because of the importance of the circuit breakers to the overall project. Although the Board 

acknowledged the relatively low cost of the circuit breakers 

as compared to the total contract price, it noted that for 

certain contract items the “significance” of the item “may 

vastly exceed the purchase price.” J.A. 84 (emphasis omitted). The Board pointed to the fact that a “critical delay” 

resulted from the failure to procure the circuit breakers as 

evidence of the circuit breakers’ significance. Id.3

3 Another difference between this case and Mountain Home is that in Mountain Home the court recognized 

that it was reasonable for the contractor to conclude that 

many of the housing units were not intended to have exhaust fans. Mountain Home, 425 F.2d at 1264. Here, by 

contrast, no one could reasonably allege that power could 

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LEBOLO-WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 11

For its part, Lebolo argues that the Board’s analysis 

regarding the importance of the circuit breakers is impermissibly based on hindsight. However, the information 

available at the time should have given rise to an inference 

that the breakers were significant. For instance, the contract provided that the new substation being constructed 

by Lebolo would obtain its high voltage power from the existing switchgear located in Building 8905. J.A. 2. For that 

reason, it would have been clear that not having circuit

breakers in the spare cubicles would result in a delay in

providing power to the new substation. And the question of 

who was required to furnish the circuit breakers should 

have been apparent to Lebolo given that 1st Electric included the new circuit breakers in its bid to subcontract the 

electrical work, and given that note four on Drawing No. 

EP 601 was specifically called out in an amendment to the 

solicitation.

We therefore conclude that the ambiguity regarding 

the circuit breakers was patent. Because the ambiguity 

was patent, Lebolo had a duty to inquire about the ambiguity. Per Aarsleff A/S v. United States, 829 F.3d 1303, 

1313 (Fed. Cir. 2016). And because of its failure to do so, 

the ambiguity was properly construed against Lebolo. See 

id. Accordingly, Lebolo was responsible for furnishing and 

installing the two circuit breakers in the spare cubicles in

Building 8905, and it is not entitled to compensation for the 

cost of the circuit breakers or the delay associated with procuring them.

B 

Lebolo next argues that its subcontractors Worch and 

Warner are entitled to compensation for governmentcaused delays associated with the provision of permanent 

have been provided to the new substation without the circuit breakers in the spare cubicles in Building 8905.

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12 LEBOLO-WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY

power at the new substation. As a preliminary matter, to 

the extent that the pass-through subcontractor claims allege delays associated with the procurement of circuit 

breakers for use in Building 8905, those claims fail because 

the circuit breakers were Lebolo’s responsibility. That delay is therefore attributable to Lebolo and not to the government.

Lebolo argues that even if it was properly charged with 

responsibility for the circuit breakers, the Board erred in 

finding that Modification No. P00030 waived the rights of 

Lebolo’s subcontractors to pursue claims regarding other 

delays associated with the provision of permanent power. 

We need not reach that issue because, even if those claims 

were not waived, the subcontractors are not entitled to 

compensation for those delays, for several reasons. 

First, the pass-through claims that Lebolo submitted 

on behalf of Worch and Warner do not allege any delays 

other than delays associated with the provision of the circuit breakers. Both Worch and Warner submitted letters 

describing their claims to Lebolo, and Lebolo forwarded 

those letters to the contracting officer. J.A. 996–1001 

(Worch letter), 2158–62 (Warner letter). Both letters focused exclusively on the delays associated with procuring 

new circuit breakers for Building 8905, and no other issues. 

The government recognized as much when it requested 

more information from Lebolo regarding the two subcontractor claims. See J.A. 1135–36, 2181–82. However, as 

Lebolo acknowledged at oral argument, Lebolo never responded to those requests. See also J.A. 2184–85. Accordingly, we do not construe the claims brought on behalf of 

Warner and Worch as encompassing any delays not attributable to the procurement and installation of the circuit 

breakers.

Second, even if the pass-through claims were construed 

to cover delays other than those attributable to the circuit 

breakers, those claims would not be compensable because 

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LEBOLO-WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 13

there was concurrent contractor-caused delay throughout 

the period in which the alleged government-caused delays 

occurred. In order to recover on a delay claim, a contractor 

must establish that “the government’s actions are the sole 

proximate cause of the contractor’s additional loss, and 

[that] the contractor would not have been delayed for any 

other reason during that period.” Triax-Pac. v. Stone, 958 

F.2d 351, 354 (Fed. Cir. 1992) (emphases omitted).4

The circuit breakers were delivered on June 11, 2013, 

yet the subcontractor claims allege delay for the entire period from February 4, 2013, until December 22, 2013. J.A. 

1000, 2162. During that period, however, there were a 

number of extended periods of delays that were attributable to the contractor.

On June 12, 2013, Lebolo employee Mike Boettcher 

emailed Worch complaining that Worch’s electrical work 

was “months behind schedule.” J.A. 37. From that time 

through December 6, 2013, Lebolo expressed concern to 

Worch regarding its delay on the project at least ten additional times. See id. at 37–39. Lebolo also later contacted 

Enterprise and indicated that there was contractor-caused 

delay beginning in May 2013 and continuing through at 

4 We note that the requirement stated in Triax-Pacific applies to a claim brought under the contract’s suspension clause, whereas here Lebolo brought its subcontractor 

claims under the “Changes Clause.” J.A. 996, 2158. However, when the claim focuses on “delay of the contract, as 

opposed to a change in the work to be performed in the contract, it is the Suspension clause rather than the Changes 

clause which applies.” Triax-Pac., 958 F.2d at 354. Here, 

to the extent that the claims focus on delay, not on a change 

in the work to be performed, the claims should be treated 

as brought under the suspension clause. See id.

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14 LEBOLO-WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY

least April 2014. J.A. 48–49; Transcript of Oct. 11, 2017, 

Hearing 172–74. 

There was a 31-day period from July 2, 2013, to August 

2, 2013, that Stuart Ockman, the government’s expert, recognized as government-caused delay associated with the 

replacement of relays in the spare cubicles in Building 

8905. Ockman Rep. 32. As Mr. Ockman noted, “replacing 

the relays was initially the Government’s responsibility.” 

Id. However, the execution of Modification No. A00016 

waived all delay claims relating to the installation of new 

relays for both Lebolo-Watts and its subcontractors. Id.; 

J.A. 5453–54. The delay associated with the installation of 

the new relays in Building 8905 is therefore also not compensable. 

Mr. Ockman also recognized an 18-day period from November 21, 2013, to December 9, 2013, as governmentcaused delay. Ockman Rep. at 32, 40–42. Mr. Ockman 

found that delay to be resolved by Modification No. P00030, 

which purportedly resolved all delay damages on the contract. Id. at 32.

Lebolo argues that Modification No. P00030 was purposely made inapplicable to the subcontractors and therefore did not resolve the subcontractors’ delay claims. Even 

accepting Lebolo’s argument on that point, however, the 

subcontractors’ claims fail because of concurrent delay attributable to the contractor, even with respect to the 18-

day period in November and December 2013.

The communications from Lebolo to Worch and Enterprise support an inference that delay attributable to the 

contractor continued during that 18-day period. That inference accords with the Board’s finding that 353 days of 

delay, the entirety of the period of delay in the performance 

of the contract, was attributable to the contractor. And we 

note that on appeal Lebolo has not challenged any of the 

Board’s fact-findings with respect to the periods of concurrent contractor delay. We therefore hold that the Board’s 

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LEBOLO-WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 15

finding of concurrent delay is supported by substantial evidence. Accordingly, the government was not the “sole substantial cause” of delay at any point between June 11, 2013, 

and December 22, 2013.5 Triax-Pac., 958 F.2d at 354.

III

In summary, the contract contained a patent ambiguity regarding whether Lebolo was required to furnish the 

two circuit breakers in Building 8905. Because Lebolo did 

not inquire about the ambiguity, it was Lebolo’s responsibility to provide the circuit breakers, and any delay associated with furnishing the circuit breakers is therefore not 

compensable. Lebolo also cannot prevail on its passthrough subcontractor delay claims because those claims 

did not allege delays other than those associated with the 

circuit breakers. And, in any event, there was concurrent 

delay throughout the period for which Worch and Warner 

seek compensation. We therefore affirm the decision of the 

Board.

AFFIRMED

5 Lebolo also argues that the execution of Modification No. P00030 is evidence that the government was responsible for the delay associated with the provision of 

permanent power. Appellant’s Br. 63–64 (citing L.C. Gaskins Constr. Co., ASBCA No. 58550, 2018 WL 1098079

(Feb. 14, 2018)). However, that argument does not account 

for the fact that there was concurrent contractor-caused delay throughout the relevant time period and that Lebolo 

and its subcontractors are therefore not entitled to compensation for that period of delay.

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