NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit 05-5030 S. EMANUEL LIN (doing business as Aptus Company), Plaintiff-Appellant,

v. UNITED STATES, Defendant-Appellee.

__________________ _________ DECIDED: August 4, 2005

__________________ _________ Before RADER, BRYSON, and LINN, Circuit Judges

. RADER, Circuit Judge

. Mr. S. Emanuel Lin d/b/a Aptus Company (Mr. Lin) appeals the decision of the United States Court of Federal Claims denying Mr. Lin’s claim of wrongful termination of a contract with the United St ates Army Corps of Enginee rs (Government). Because substantial evidence supports t he Court of Federal Claims’ finding that the Government terminated Mr. Lin for default, this court affirms

. I Mr. Lin won a contract to update and autom ate hydroelectric power equipment at the Saulte Ste. Marie Hydroelectric Po wer Plant in Michigan for $1,225,110. Aptus Co. v. United States , No. 01-362C, slip op. at 3 (Fed. Cl. Aug. 30, 2004) ( Decision ).Although M r . Lin was the lowest bidder during the c ontract solicitation, the Government became concerned that Mr. Lin, as a single -man operation, did not have th e expertise and staff required to c o mplete the contract. Id. at 4. Mr. Lin alla yed the Government’s concerns by providing written assurances that he would recruit workers with t he necessary experience to complete the contract. Id. C onsequently, Mr. Lin won the bid and receiv ed the contract. The contract required Mr. Lin to inst all gov ernment-furnis hed equipment (GFE) including governor, exc i tati on, Supervis o ry Control and Data Acquisition (SCADA) equipment, and to design and install a neut ral grounding system, a new switchboar d and switchgear for Unit 10, a 125 VDC distribution panel, and several other smaller items. Id. at 3 & n.5. The contract requir ed completion within 450 day s after the Government issued a Notice to Proceed, which issued on Decem ber 9, 1998. Id. at 4. The parties executed a bilateral agreem ent on November 24, 1999, ext ending the deadline by 150 days due to the Government’s delay in deliv ering the GFE, thereby moving the deadline to July 31, 2000. Id. at 4 n.7. On January 14, 2000, the Government iss ued a cure notice to Mr. Lin because he “was unable to make sufficient progress under the contract, failed to comply wit h required submittals, failed to provide a realistic work schedule, and had inadequate staffing to perform the work required under the contract.” Id. at 4. Mr. Lin responded and the cure notice did not mature into a termination for default at that time. Id. at 6. Howev e r, the Govern ment requested the Hydr oelectric Design Ce nter (HDC) to inspect Mr. Lin’s work. Id. The HDC pr epared a full repor t of its findings and recommended terminating Mr. Lin for default. Id.

05-5030 2The Government issued a show cause not ice to Mr. Lin on May 1, 2000, n o ting the findings of the HDC and Mr. Lin’s failure to cure the conditions in the J anuary 14, 2000 cure notice. Id. After allowing Mr. Lin an opportuni ty to cure the conditions in t he show caus e notice, the Government term inated the contract for cause on June 30, 2000. Id. at 7. Mr. Lin, acting pro se , filed s u it in the Court of F ederal Claims all eging wron gful termination and modification of the contract. Id. at 2. The trial court upheld the Government’s termination for cause based on Mr. Lin’s lack of satisfactory progress under the contract, id

. at 34, and violations of contract requirements, id. at 37. Mr. Lin appeals to this court, which has jurisdic tion pursuant to 28 U. S.C. § 1295(a)(3). II This court reviews issues of contract interpretation de novo

. Galax y , Inc. v. United Stat es , 998 F.2d 953, 957 (Fed. Cir. 1993). This court reviews factual findings for clear error. Merck & Co. v. Teva Pharms., Inc. , 395 F.3d 1364, 1368 (Fed. Cir. 2005). A factual finding is clearly erroneous when “the reviewing court on the entire evidenc e is left with the definite and firm co nviction that a mistake has been c o mmitted.” Id. (quoting United States v. U.S. Gypsum Co. , 333 U.S. 364, 395 (1948)). Mr. Lin argues that the trial court applied t he wrong standard in reviewing the Government’s decision to terminate the contra ct fo r cause. The trial court, citing Seaboard Lumber Co. v. United States , 903 F.2d 1560, 1562 (Fed. Cir. 1990), properly stated that it was rev i ewin g the t e rmination for default de novo

. Decis i on at 11. The trial court went on to prov ide a forty-page opinion thoroughl y analyzing the facts and

05-5030 3issues under a de nov o standard. This c ourt finds that the trial court applied t he correct standard of review. Mr. Lin next argues that the Government did not carry its burden of proof to establish default termination. As regards default termination for lack of progress, the trial court found in favor of the Govern ment based on (1) the percentage of work completed and the amount of time remaini ng under the contract, (2) the problems wit h subcontractors and suppliers, (3) the failure to meet goals for progr ess of the work, and (4) the over-all evidence of Mr. Lin’s failure to prosecute his work under the contract. Id. at 31. Specifically, the trial court f ound that “(i) approximatel y 68% of the work remained to be completed under the contract at the termination date, and, at best, a mere 23.33% of the construction time remai ned, (ii) [Mr. Lin] experienced signific ant difficulties with subco n tractors, [ ] (iii) Mr. Lin was un a b le to conform to the scheduling representations he made,” and (iv) Mr. Lin’s efforts frequently resulted in work that was unsatisfactory. Id. Much of the evidence support ing these factual findings was introduced by and through Mr. Lin. These fi ndings are not clearly erroneous. The Court of Federal Claim s als o ruled against Mr. Lin’s defens e of excus a ble delay. Specifically, the trial court did not c onsider the Government’s delay in deliverin g the GFE as creating excusable delay becaus e the parties agreed t o extend the contract deadline by 150 days as comp ensation for that delay. Id. at 32. The trial court also did not consider delays caused by late deliv ery of the SCADA equi pment because the termination decision did not rely on the non-c ompletion of the SC ADA inst allation. Id

. The trial court considered, and rejected, Mr. Lin’s argument that the GFE was

05-5030 4incomplete and had defective parts upon deliver y, thereby causing excus able delay. Id. at 33. Mr. Lin had the burden to dem onstrate t hat the defects in the GFE delayed activities on the critical path to the complet i on of the c ontract. The trial court found that defects of the GFE did not affect the cr itical path bec ause Mr. Lin “had am ple des ign work that was able t o be completed without reference to the GFE.” Id. Mr. Lin als o represented to the Government that his upda ted schedules were achievable despite the problems with the GFE. Because substantial evidenc e supports these facts, this court affirms the Court of Federal Claims’ finding that Mr. Lin’s delay was not excusable. Because t h is court upholds the Government’s default termination for lack of sufficient progress, this court does not re ach the add itional grounds upon which the Court of Federal Claims su stained the Government’s default termination.

05-5030 5