NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________

U.S. AEROTEAM, INC.,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

______________________

2021-2272

______________________

Appeal from the United States Court of Federal Claims 

in No. 1:18-cv-01096-MBH, Senior Judge Marian Blank 

Horn.

______________________

Decided: July 5, 2022

______________________

MILTON C. JOHNS, Executive Law Partners, PLLC, 

Fairfax, VA, argued for plaintiff-appellant.

 IGOR HELMAN, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, 

DC, argued for defendant-appellee. Also represented by 

BRIAN M. BOYNTON, LISA LEFANTE DONAHUE, PATRICIA M.

MCCARTHY.

______________________

Case: 21-2272 Document: 30 Page: 1 Filed: 07/05/2022
2 U.S. AEROTEAM, INC. v. US

Before LOURIE, PROST, and TARANTO, Circuit Judges.

LOURIE, Circuit Judge.

U.S. Aeroteam, Inc. (“Aeroteam”) contracted with the 

United States Air Force to build ground support trailers. 

After Aeroteam incurred additional costs building the trailers, it requested compensation from the Air Force. The Air 

Force denied its request. Aeroteam filed a complaint at the 

United States Court of Federal Claims (“the Claims 

Court”). The Claims Court entered judgment in favor of

the United States. U.S. Aeroteam, Inc. v. United States, 

No. 1:18-cv-01096-MBH (Fed. Cl. 2019), J.A. 3–9. We affirm the court’s judgment for the reasons explained below.

BACKGROUND

Aeroteam is a contractor that specializes in building 

components for the aerospace industry. In 2009, the Air 

Force awarded Aeroteam a contract to produce ground support trailers. J.A. 1709–10. The Air Force uses those trailers to transport aircraft engines. J.A. 1709.

In 2011, Aeroteam began having difficulties obtaining

a key component of the trailers—the running-gear subassembly. J.A. 1712. The running gear is “essentially the 

drive train” for the trailer, “allow[ing] [it] to roll, brake, 

[and] steer.” J.A. 1710. To obtain the running gears, Aeroteam relied on PDI Ground Support Systems, an approved 

vendor under the contract.1 J.A. 1711–12. PDI initially 

charged Aeroteam $20,300 per unit. J.A. 1711. After facing financial difficulties, however, PDI raised its price. 

J.A. 7 (845:1–6). In response, Aeroteam decided to manufacture the running gears itself. According to Aeroteam, it 

could produce them “as well or better than PDI.” 

1 Under the terms of the contract, Aeroteam could 

procure the running gears only from certain approved vendors, including PDI. J.A. 1710–11.

Case: 21-2272 Document: 30 Page: 2 Filed: 07/05/2022
U.S. AEROTEAM, INC. v. US 3

J.A. 1713–14; J.A. 1861 (342:3–12); J.A. 2125. Aeroteam 

was also concerned that PDI could not continue to supply 

it with the running gears in light of its financial situation.2 

Appellant’s Br. 8. Subsequently, Aeroteam formally asked

the Air Force if it could assume responsibility for manufacturing the running gears. J.A. 1714. Its request read, in 

relevant part, as follows:

US Aeroteam proposes to manufacture the entire 

running gear and brake system for TT90-F-507 

Trailers Sernos 0020-0041 because PDI has refused to complete the contract as awarded.

J.A. 2125 (capitalization modified). The contracting officer 

approved Aeroteam’s request, stating that the manufacturing change was “acceptable.” J.A. 1715–16. On September 

6, 2012, the Air Force awarded Aeroteam a second contract 

to produce additional trailers. J.A. 1716.

Shortly after Aeroteam began manufacturing the running gears for the trailers, it discovered that its costs were 

higher than it had expected. J.A. 7. As a result, Aeroteam 

sought to recoup those costs and filed a request for equitable adjustment in the amount of $1,385,912 for the first

contract and $4,022,273 for the second contract. 

J.A. 29–30; Contract No. FA8526-09-C-0007 and Contract 

No. FA8526-12-C-0039. As relevant here, both of Aeroteam’s contracts were “firm-fixed-price,” meaning that they 

“place[d]” upon Aeroteam the “maximum risk and full responsibility for all costs and resulting profit or loss.” Federal Acquisition Regulation § 16.202-1; J.A. 1710, 1716.

The contracting officer denied Aeroteam’s request for 

equitable adjustment. J.A. 1717. Aeroteam then filed a 

complaint at the Claims Court, alleging three grounds for 

2 The government disputes Aeroteam’s assertion 

that PDI could no longer produce the running gears. We 

further address that argument below. 

Case: 21-2272 Document: 30 Page: 3 Filed: 07/05/2022
4 U.S. AEROTEAM, INC. v. US

recovery: (1) constructive change, i.e., the Air Force ordered Aeroteam, expressly or impliedly, to perform work 

beyond the contract requirements; (2) cardinal change, i.e., 

the Air Force effected an alteration in the work so drastic 

that it effectively required Aeroteam to perform duties materially different from those it originally bargained for; and 

(3) commercial impracticability, i.e., because of unforeseen 

events, Aeroteam could perform the contract only at an excessive and unreasonable cost or performance would be 

commercially senseless.

The Claims Court denied Aeroteam’s claims, issuing its 

decision from the bench without a subsequent written opinion. With respect to the constructive and cardinal change

claims, the court held that Aeroteam had failed to prove 

that the Air Force ordered it to manufacture the running 

gears.3 Rather, according to the court, Aeroteam independently chose to do so. J.A. 7 (846:11–13); J.A. 8 

(849:1–2). With respect to the commercial impracticability

claim, the court found that Aeroteam could have continued 

to buy the running gears from PDI, albeit at a higher price. 

J.A. 5 (838:14–16). The court also pointed out that, because Aeroteam had entered into a fixed-price-contract, it 

assumed the risk that the price of the running gears would 

change. J.A. 6 (840:21–841:1); J.A. 7 (846:13–15).

After concluding that Aeroteam failed to prove its 

claims for recovery, the court entered judgment in favor of 

the government. J.A. 1. Aeroteam appealed to this court. 

We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(3).

DISCUSSION

This court reviews legal determinations of the Claims 

Court de novo and its findings of fact for clear error. Ind. 

Mich. Power Co. v. United States, 422 F.3d 1369, 1373 (Fed. 

3 The Claims Court discussed cardinal change in 

conjunction with constructive change.

Case: 21-2272 Document: 30 Page: 4 Filed: 07/05/2022
U.S. AEROTEAM, INC. v. US 5

Cir. 2005) (citing Glendale Fed. Bank, FSB v. United 

States, 239 F.3d 1374, 1379 (Fed. Cir. 2001)). “A finding is 

‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left 

with the definite and firm conviction that a mistake has 

been committed.” United States v. U.S. Gypsum Co., 333 

U.S. 364, 395 (1948).

Aeroteam argues that the Claims Court erred in denying its claims for (1) constructive change, (2) cardinal 

change, and (3) commercial impracticability. We address 

each argument in turn.

I

We turn first to Aeroteam’s argument regarding its 

constructive change claim. To demonstrate a constructive 

change, a contractor must show “(1) that it performed work 

beyond the contract requirements, and (2) that the additional work was ordered, expressly or impliedly, by the government.” Bell/Heery v. United States, 739 F.3d 1324, 1335 

(Fed. Cir. 2014) (emphasis added) (citing Redland Co. v. 

United States, 97 Fed. Cl. 736, 755–56 (2011)). The parties’

dispute centers on the second element of constructive 

change.

Aeroteam argues that the Claims Court erred in denying its constructive change claim. According to Aeroteam, 

it did not choose to manufacture the running gears. Rather, the Air Force ordered it to make that change. The 

government responds that Aeroteam independently chose 

to manufacture the running gears, with no express or implied order from the Air Force.

We agree with the government that the Claims Court 

did not err in denying Aeroteam’s constructive change 

claim. As the Claims Court held, Aeroteam failed to prove 

that the Air Force ordered it to manufacture the running 

gears. J.A. 7 (846:11–15); J.A. 8 (849:1–8). On the contrary, that was “a choice that Aeroteam made.” J.A. 7 

Case: 21-2272 Document: 30 Page: 5 Filed: 07/05/2022
6 U.S. AEROTEAM, INC. v. US

(846:11–13). Specifically, after learning of PDI’s financial 

difficulties, Aeroteam coordinated a plan to manufacture 

the running gears. Aeroteam did so because it was “confident that [it could] produce” the running gears “as well or 

better than PDI”—not because it was ordered to by the Air 

Force. J.A. 1713–14. Indeed, Aeroteam itself “propose[d]” 

to the Air Force that it “manufacture the entire running 

gear.” J.A. 2125 (emphasis added and capitalization modified). Moreover, Aeroteam acknowledged that it could not 

“do[] anything” with respect to manufacturing until it 

sought the Air Force’s approval. J.A. 1714–15. Accordingly, in view of the record before us, we see no clear error 

in the court’s determination.

Aeroteam makes several additional arguments, all unpersuasive. First, Aeroteam emphasizes that the Air Force 

approved its manufacturing request. According to Aeroteam, because of that approval, the Air Force effectively directed it to manufacture the running gears. We disagree. 

Mere approval, standing alone, is insufficient to prove constructive change. Rather, there must be an “order[],” either 

“express[] or implied[].” Bell/Heery, 739 F.3d at 1335 (citing Redland, 97 Fed. Cl. at 755–56). Accordingly, Aeroteam’s argument is unpersuasive.

Second, Aeroteam argues that the Claims Court “expand[ed] the requirements” necessary to prove a claim for 

constructive change. Appellant’s Br. 21. Specifically, Aeroteam points to portions of the court’s decision suggesting it 

was required to prove that the government authorized a 

“change in contract price.” See Appellant’s Br. 21–22; 

J.A. 6 (841:17–22) (“[T]he government . . . [did not take] 

that next step of authorizing or directing a change in the 

contract price.”) (emphasis added); J.A. 8 (849:9–11) (“The 

drawings, the expectation of whether the plaintiff could 

produce it in-house appropriately, that was approved, but 

the price change was not.”) (emphasis added). According to 

Aeroteam, because of the court’s misstatements, we must 

reverse its decision.

Case: 21-2272 Document: 30 Page: 6 Filed: 07/05/2022
U.S. AEROTEAM, INC. v. US 7

We disagree with Aeroteam. Certainly, to prove a 

claim for constructive change, a contractor need not show 

that the government authorized a change to the contract 

price. Rather, it need only show that the government ordered it (expressly or impliedly) to perform work beyond 

the contract requirements. See Bell/Heery, 739 F.3d at

1335 (citing Redland, 97 Fed. Cl. at 755–56). To the extent 

the Claims Court suggested otherwise, that was erroneous. 

Regardless, any such error was harmless. As explained 

above, the court carefully evaluated the evidence and determined that Aeroteam chose to manufacture the running 

gears itself, with no express or implied order from the Air 

Force. See J.A. 4 (833:23–834:3) (“[T]o demonstrate a constructive change, [a] plaintiff has to show . . . that the additional work was ordered expressly or impliedly by the 

government.”); J.A. 7 (846:11–13) (“The termination that 

[Aeroteam] exercised toward[] PDI was, again, a choice

that [it] made.”) (emphasis added); J.A. 8 (849:8) (Aeroteam

“offered to pull [the manufacturing] in-house.”) (emphasis 

added). Thus, the court’s possible suggestion of an additional requirement for constructive change did not affect 

the outcome of the case. See Valles v. Dep’t of State, 

17 F.4th 149, 152 (Fed. Cir. 2021) (“As an appellate court, 

we are obligated to apply the rule of harmless error, examining the record ‘without regard to errors or defects which 

do not affect the substantial rights of the parties.’” (quoting

28 U.S.C. § 2111)).

Accordingly, we affirm the Claims Court’s determination that the Air Force was not liable for constructively 

changing the contract.

II

We next turn to Aeroteam’s argument regarding its 

cardinal change claim. To demonstrate a cardinal change, 

a contractor must show that the “government effect[ed] an 

alteration in the work” that “effectively require[d] the contractor to perform duties materially different from those 

Case: 21-2272 Document: 30 Page: 7 Filed: 07/05/2022
8 U.S. AEROTEAM, INC. v. US

originally bargained for.” Krygoski Constr. Co. v. United 

States, 94 F.3d 1537, 1543 (Fed. Cir. 1996) (emphasis 

added) (quoting AT & T Commc’ns, Inc. v. WilTel, Inc., 1 

F.3d 1201, 1205 (Fed. Cir. 1993)). “By definition . . . a cardinal change is so profound that it is not redressable under 

the contract, and thus renders the government in breach.” 

Id.

Aeroteam argues that the Air Force was liable for making a cardinal change to the contract. In support of its argument, Aeroteam again asserts that the Air Force ordered

it to manufacture the running gears in-house. The government responds that Aeroteam’s cardinal change claim fails 

for the same reason that its constructive change claim fails: 

Aeroteam chose to manufacture the running gears. The Air 

Force did not order it to do so.

We agree with the government. As explained above, 

the evidence showed that Aeroteam chose to manufacture 

the running gears; the Air Force did not “effect an alteration” in Aeroteam’s work. See J.A. 7 (846:11–13); Krygoski, 

94 F.3d at 1543 (emphasis added) (quoting AT & T, 1 F.3d 

at 1205).4 Accordingly, we affirm the Claims Court’s determination that the Air Force was not liable for making a 

cardinal change to the contract.

III

Finally, we turn to Aeroteam’s argument regarding its 

commercial impracticability claim. To prove commercial 

impracticability, a contractor must show that “because of 

unforeseen events, [the contract] can be performed only at 

4 Because we determine that the Air Force did not 

“effect an alteration” in Aeroteam’s work, we need not reach 

the question whether any alteration was “materially different from those [that Aeroteam] originally bargained for.” 

Krygoski, 94 F.3d at 1543 (emphasis added) (quoting 

AT & T, 1 F.3d at 1205).

Case: 21-2272 Document: 30 Page: 8 Filed: 07/05/2022
U.S. AEROTEAM, INC. v. US 9

an excessive and unreasonable cost” or “all means of performance are commercially senseless.” Raytheon Co. v. 

White, 305 F.3d 1354, 1367 (Fed. Cir. 2002) (citations and 

internal quotation marks omitted).

Aeroteam argues that it would have been commercially 

impracticable for it to perform the contract. According to 

Aeroteam, PDI could “no longer produce” the running gears

in light of its financial difficulties. Appellant’s Br. 8. In 

support of its argument, Aeroteam emphasizes that PDI’s 

products were “plagu[ed]” with quality control issues, making it doubtful that it could complete the manufacturing 

order. Id. The government responds that PDI could have 

continued to manufacture the running gears. Specifically, 

the government contends that PDI did not decline to manufacture the running gears after facing financial difficulties. Rather, it merely raised the price per unit. The 

government adds that Aeroteam could have paid that 

higher price but chose not to for its own financial reasons.

We agree with the government. After considering the 

evidence, the Claims Court found that Aeroteam could 

have continued to buy the running gears from PDI. J.A. 5 

(838:14–16) (“[T]he evidence does not support that at the 

higher price, PDI would not have continued to supply the 

product.”). The court acknowledged that PDI faced financial difficulties. It explained, however, that those difficulties caused PDI to raise the price of its running gears, not 

to stop producing them altogether. J.A. 7 (845:1–7). The 

court further emphasized that Aeroteam could have bought 

the running gears for the higher price but chose not to do 

so. J.A. 7 (845:8–10).5 Finally, the court found that Aeroteam failed to provide evidence “document[ing]” that the 

5 The Claims Court did not make a conclusive finding regarding the amount that PDI charged Aeroteam after 

facing financial difficulties. PDI charged other parties up 

to $38,000. J.A. 1861 (341:6–20).

Case: 21-2272 Document: 30 Page: 9 Filed: 07/05/2022
10 U.S. AEROTEAM, INC. v. US

higher price was excessive.6 J.A. 7 (845:14–16). Aeroteam 

points to no clear error in the court’s factual findings. Rather, it effectively asks us to reweigh the evidence and hold 

in its favor. We decline to do so.

Aeroteam further argues that the Claims Court misstated the law on firm-fixed-price contracts. According to 

Aeroteam, the court “seem[ed] to hold” that a contractor 

entering into a firm-fixed-price contract may not raise a 

claim for commercial impracticability. Appellant’s Br. 

26–27.

We disagree with Aeroteam’s reading of the court’s decision. The court did not suggest that Aeroteam was barred 

from raising a commercial impracticability claim. Rather, 

it stated that certain types of changes to Aeroteam’s firmfixed-priced contracts were not necessarily compensable, 

including, for example, an increase in the market price of 

running gears. J.A. 5 (837:1–5) (“A finding of impracticability excuses a party from performing unless the party has 

assumed the risk of the event.”) (emphasis added). As the 

court explained, that was “part of the risk” that Aeroteam 

assumed in entering a firm-fixed-price contract. See J.A. 5 

(837:23–838:6); J.A. 7 (846:13–15); Seaboard Lumber Co. v. 

United States, 308 F.3d 1283, 1295 (Fed. Cir. 2002) (“The 

normal risk of a fixed price contract is that the market price 

will change.” (quoting N. Ind. Pub. Serv. Co. v. Carbon 

County Coal Co., 799 F.2d 265, 275 (7th Cir. 1986))). Accordingly, we affirm the court’s determination that it was 

not impracticable for Aeroteam to perform the contract.

6 Although the Claims Court initially stated that it 

“guess[ed]” the higher price made PDI an “unavailable 

source,” it immediately qualified that statement by emphasizing that “it was also a matter of choice on the part of 

[Aeroteam] not to pay the higher price.” J.A. 7 (845:8–10)

(emphasis added).

Case: 21-2272 Document: 30 Page: 10 Filed: 07/05/2022
U.S. AEROTEAM, INC. v. US 11

In summary, the Claims Court did not clearly err in 

denying Aeroteam’s claims for constructive change, cardinal change, or commercial impracticability.

CONCLUSION

We have considered Aeroteam’s remaining arguments 

but find them unpersuasive. For the foregoing reasons, the 

decision of the Claims Court is affirmed.

AFFIRMED

Case: 21-2272 Document: 30 Page: 11 Filed: 07/05/2022