United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 2021 Decided July 26, 2022

No. 20-1520

ARCHER WESTERN CONTRACTORS, LLC,

PETITIONER

v.

UNITED STATES DEPARTMENT OF TRANSPORTATION AND 

FEDERAL AVIATION ADMINISTRATION,

RESPONDENTS

On Petition for Review of an Order

of the Federal Aviation Administration

Jonathan J. Straw and Steven D. Meacham argued the 

causes for petitioner. On the briefs was Larry W. Caudle Jr. 

Corinne A. Niosi, Senior Trial Counsel, U.S. Department 

of Justice, argued the cause for respondent. With her on the 

brief was Brian M. Boynton, Acting Assistant Attorney 

General.

Before: ROGERS and WALKER, Circuit Judges, and 

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge WALKER.
2

WALKER, Circuit Judge: The Federal Aviation 

Administration hired Archer Western Contractors to build air 

traffic structures for an airport in Las Vegas. Archer completed 

the work, but there was some turbulence along the way. Archer 

now challenges the FAA’s resolution of three contract disputes.

On the first dispute, the FAA said that Archer waited too 

long to challenge the FAA’s failure to provide an equitable 

adjustment for a modification to the contract. For the second 

dispute, the FAA said that Archer’s claim regarding contract 

modifications’ “cumulative impact” was also untimely. As for 

the third dispute, the FAA found that Archer had failed to

install proper rectangular airducts. 

We hold that the FAA erred in dismissing as untimely 

Archer’s failure-to-provide-an-equitable-adjustment claim. 

We agree with the FAA on the other two issues. 

I

Archer built an air traffic control tower, a terminal radar 

approach control building, a parking garage, and a guard shack

at what was then called McCarran International Airport in Las 

Vegas. Over the course of the multi-year construction process, 

the FAA repeatedly changed the work that it had hired Archer 

to perform. Those contract modifications sometimes required 

Archer to stop work and incur delay costs. 

After one of the delays, Archer requested an “equitable 

adjustment,” which is the compensation that the parties’ 

contract requires the FAA to pay Archer when contract changes

“increase . . . the cost of, or time required for performing the 

work.” JA 136. 
3

In December 2013, the FAA formally denied Archer’s 

requested equitable adjustment, opting instead to unilaterally 

adjust the contract and award Archer less for the delays than it 

asked for. A year and four months later, in April 2015, Archer 

filed a notice of contract dispute with the Office of Dispute 

Resolution for Acquisition (ODRA), which is the FAA’s 

dispute-resolution tribunal. The notice listed first among its 

claims the FAA’s breach of contract for “Failure to Provide 

Equitable Adjustment for Significant Design Modification.” 

JA 533. 

Archer also brought other claims to the ODRA, including 

one related to its HVAC ductwork. Archer installed two types 

of airducts — round and rectangular. After installation, the 

contractually required antimicrobial coating in the round ducts 

began to flake off. There was also evidence of inadequate 

adhesion in the rectangular ducts. In response, the FAA 

rejected all the ducts as non-compliant with the contract and 

required Archer to replace them. Because Archer thought only 

the round ducts needed replacing, it sought reimbursement for 

the cost of replacing the rectangular ducts. 

Four years later, in 2019, the ODRA received notice of a

cumulative-impact claim. According to Archer, the FAA’s 

successive, significant changes to the contract rippled out to 

decrease the efficiency of the entire project. That cumulative 

impact, said Archer, generated additional, compensable costs, 

even for unchanged work. 

The ODRA dismissed Archer’s failure-to-provide-anequitable-adjustment claim as untimely, relying on contractual 

and regulatory provisions that require filing a claim within two 

years of its accrual. It reasoned that Archer’s claim accrued 

back in December 2012 when the FAA proposed the relevant 

contract change, not in December 2013 when the FAA denied
4

Archer’s requested equitable adjustment. Recall that Archer 

filed its failure-to-provide-an-equitable-adjustment claim in 

April 2015. 

In addition, the ODRA dismissed Archer’s cumulativeimpact claim as untimely because it had been raised for the first 

time in 2019, several years after the closing of the two-year 

window for filing claims. 

Finally, the ODRA found that the FAA had reasonably 

rejected all of the rectangular airducts in addition to the

defective round airducts. 

The FAA adopted the ODRA’s findings and 

recommendations in a final order. Archer then petitioned this 

Court for review. See 49 U.S.C. § 46110.

II

“Our review is confined to determining whether the FAA’s 

order adopting the ODRA’s findings and recommendations is 

arbitrary or capricious or contrary to law.” Multimax, Inc. v. 

FAA, 231 F.3d 882, 886 (D.C. Cir. 2000); see also 5 U.S.C. 

§ 706(2)(A) (arbitrary or capricious standard). The FAA falls 

short of that standard when its decision “is not supported by 

substantial evidence” or when it “has made a clear error in 

judgment.” Multimax, 231 F.3d at 886 (cleaned up).

A

We begin with the first of Archer’s claims — that the 

ODRA, and thus the FAA, incorrectly dismissed as untimely 

Archer’s claim for “Failure to Provide Equitable Adjustment 

for Significant Design Modification.” JA 533.
5

We agree with Archer.

Government contracts often require the government 

agency to compensate the contractor when the agency’s 

modifications to the contract cost the contractor time or money. 

That compensation is called an equitable adjustment. Archer’s 

contract with the FAA requires the FAA to make an “equitable 

adjustment” when certain unexpected changes to the contract 

“increase . . . the cost of, or time required for performing the 

work.” JA 136. 

Government contracts also often provide for the 

adjudication of disputes that might arise between the agency 

and the contractor. In Archer’s contract with the FAA, the 

contract said of equitable adjustments that the “[f]ailure to 

agree to any adjustment shall be a dispute.” JA 137.

Finally, when disputes like that arise, government 

contracts often require a contractor to file claims based on those 

disputes in a certain forum and by a certain time. In Archer’s 

contract with the FAA, that forum is the “dispute resolution 

system at the” ODRA. JA 133. And that time is “within two 

(2) years of the accrual of the contract claim involved.” JA 

133; see also 14 C.F.R. § 17.27(c) (“A contract dispute against 

the FAA shall be filed with the ODRA within two (2) years of 

the accrual of the contract claim involved.”). FAA regulations 

specify that a claim accrues when “all events relating to a claim 

have occurred, which fix liability . . . and permit assertion of 

the claim.” 14 C.F.R. § 17.3(b).

So to sum up so far, under the terms of Archer’s contract 

with the FAA, Archer is entitled to an equitable adjustment if 

a contract modification by the FAA costs Archer time or 

money. The parties’ failure to agree to that equitable 

adjustment is a contract dispute. And a claim based on that 
6

dispute must be filed with the ODRA within two years of the 

claim’s accrual. 

That’s what happened here. After the FAA cost Archer 

time by changing the work it required, Archer requested an 

equitable adjustment. The FAA denied that request for an 

equitable adjustment in December 2013. At that point, the 

claim accrued because it was then that “all events relating to a 

claim have occurred, which fix liability . . . and permit 

assertion of the claim.” 14 C.F.R. § 17.3(b). Then, a year and 

four months later, in April 2015, Archer filed a claim with the 

ODRA for what it labeled the FAA’s “Failure to Provide 

Equitable Adjustment for Significant Design Modification.” 

JA 533. In it, Archer noted the FAA’s contractual obligation 

“to make an equitable adjustment upon submittal of a proposal” 

by Archer for qualifying costs. JA 533. It referred to the 

contract’s changes clause, provision 3.10.1-16, which defines 

as a dispute the “[f]ailure to agree to any adjustment.” JA 136-

37. 

Archer’s claim (in April 2015) for the FAA’s failure to 

provide an equitable adjustment was timely because it was filed 

within two years of the FAA’s denial of the equitable 

adjustment (in December 2013).

The FAA says Archer’s failure-to-provide-an-equitableadjustment claim accrued before December 2013. But that is 

precluded at least by the contract and litigating positions before 

us. In this situation, a claim for the FAA’s failure to agree to

an equitable adjustment cannot accrue until the FAA fails to 

agree to the equitable adjustment. Only then can it be said that

“all events relating to [the] claim have occurred, which fix 

liability . . . and permit assertion of the claim.” 14 C.F.R. 

§ 17.3(b). And the FAA does not dispute that it was in 
7

December 2013 that the FAA and Archer failed to agree on an 

equitable adjustment.

1

To the extent the FAA suggests that the regulation defining 

accrual, 14 C.F.R. § 17.3(b), can redefine the accrual period for 

the contract’s failure-to-agree dispute, it is incorrect. Even if 

we assume that the FAA is right — that pursuant to 17.3(b), 

denial of a request for an equitable adjustment was “not a 

prerequisite to accrual or the filing of a contract 

dispute,” — the parties entered into their contract before that 

regulation went into effect, so the contract controls. See 14 

C.F.R. § 17.27(c) (“If an underlying contract entered into prior 

to the effective date of this part provides for time limitations 

for filing of contract disputes with the ODRA, which differ 

from the aforesaid two (2) year period, the limitation periods in 

the contract shall control over the limitation period of this 

section.”). The contract provided that Archer could file a 

dispute if the parties “[f]ail[ed] to agree to any adjustment.” So 

a claim for the FAA’s failure to agree to an equitable 

adjustment could not accrue until then. 

The FAA’s brief is replete with the dates of other disputes 

between it and Archer. But those are not the disputes that 

matter. Perhaps if Archer had brought a constructive-changeof-contract claim, the FAA could argue that that claim accrued 

in December 2012 when the FAA proposed changes to 

Archer’s contract. And perhaps if Archer had brought a claim 

for delay, the FAA could argue that that claim accrued in 

January 2013 when Archer told the FAA it was stopping work 

1 Because the FAA does not argue for an earlier date on which it 

believes the parties first “failed to agree” on an equitable adjustment, 

we do not decide whether a party’s claim for “failure to agree” could 

accrue at some point before a formal rejection of a request for an 

equitable adjustment.
8

or in February 2013 when Archer began tracking costs and 

delays. 

But all of that is beside the point. Archer does not ask us 

to review the FAA’s adjudication of a constructive-change-ofcontract claim or a delay claim. We are reviewing a failure-toprovide-an-equitable-adjustment claim. And that claim was 

timely filed only one year and four months after it 

accrued — well within the two-year window for Archer to file 

a claim.

B

Next, we discuss Archer’s second claim — that the 

ODRA, and thus the FAA, incorrectly dismissed as untimely 

Archer’s cumulative-impact claim for the synergistic effect of 

multiple contract modifications on the unchanged remainder of 

the contract.

We agree with the FAA.

Archer’s contract requires that disputes filed with the 

ODRA “shall contain . . . [a] detailed . . . statement . . . of the

legal grounds for the contractor’s positions regarding each . . . 

count of the contract dispute (i.e., broken down by individual 

claim item).” JA 133 (emphasis added); see also 14 C.F.R. 

§ 17.27(a) (disputes “should contain . . . [a] detailed . . . 

statement . . . of the legal grounds underlying the contract 

dispute, broken down by individual claim item”). So to bring 

a cumulative-impact claim, Archer needed to give a statement 

of the legal grounds for that specific claim.

Archer did nothing like that within the two-year window. 

It failed to list a cumulative-impact claim as an “individual 

claim item” in the notices it filed with the ODRA. JA 133. In 
9

fact, Archer has not argued that it mentioned “cumulative 

impact” — or a synonym for it — in those notices at all. 

At oral argument, Archer said that its “cumulative impact 

claim arises from all the facts from all the counts.” Transcript 

of Oral Argument at 8:15-16. That is not good enough — not 

when the contract requires that claims be “broken down by 

individual claim item.” JA 133. The FAA cannot be expected 

to divine — from vague references by Archer, nested within its 

other claims — a nuanced cumulative-impact claim for costs 

associated with unchanged work, which are not directly 

traceable to an individual disruption, are not readily 

foreseeable, and are not easy to calculate. 

Archer needed to separately allege a claim for cumulative 

impact within two years of that claim’s accrual. Instead, the 

ODRA did not receive notice of Archer’s cumulative-impact 

claim until 2019. JA 118. That was well past the contract’s 

two-year limit for filing a claim. The FAA was therefore 

correct to dismiss Archer’s cumulative-impact claim as 

untimely.

C

We turn to the last of Archer’s claims — that the FAA 

incorrectly rejected the rectangular airducts that Archer 

installed.2

Here again the FAA prevails.

We will not disturb an agency’s factual finding when 

“substantial evidence” supports that finding. City of Santa 

2 To be precise, Archer installed the airducts through subcontractors

Gallagher-Kaiser Corporation and Liberty Duct. 
10

Monica v. FAA, 631 F.3d 550, 554 (D.C. Cir. 2011) (citing 49 

U.S.C. § 46110(c)). Substantial evidence means “more than a 

scintilla” of evidence. Town of Barnstable v. FAA, 740 F.3d 

681, 687 (D.C. Cir. 2014) (cleaned up)). So even when the 

record is “unclear,” it’s enough for the agency to rely on “such 

relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.” Pham v. National 

Transportation Safety Board, 33 F.4th 576, 581 (D.C. Cir. 

2022) (cleaned up). An agency’s “conclusion may be 

supported by substantial evidence even though a plausible 

alternative interpretation of the evidence would support a 

contrary view.” Western Air Lines, Inc. v. Civil Aeronautics 

Board, 495 F.2d 145, 152 (D.C. Cir. 1974).

The parties’ contract required an antimicrobial coating to 

“form the interior surface of the duct[s].” JA 125-26. As 

Archer admitted at oral argument, coating that flakes would 

violate that contract. Because Archer acknowledges that the 

round ducts were flaking, it agreed that many of them needed 

to be replaced. However, Archer maintains that the coating’s 

adhesion on the rectangular ducts was sufficient and thus that 

the FAA should not have required Archer to replace them.

Substantial evidence supports the FAA’s finding that the 

antimicrobial coating on the inside of Archer’s rectangular 

ducts would likely not adhere sufficiently over time. The FAA 

based its conclusion on several findings, including the presence

of oil in the rectangular ducts due to a failure to properly clean 

the ducts before the coating was applied. The evidence also 

included testing that showed 17 instances of an adhesion rating 

of 0 on a scale where 0 is the worst score. And the evidence 

included flaking in the turning vanes of the rectangular ducts. 

Those are among the reasons the FAA’s expert testified that, 

with the information the FAA had, he would probably have 
11

made the same decision to reject and replace the rectangular 

ducts. 

We need not decide whether any one of those pieces of 

evidence constitutes substantial evidence on its own. Together, 

they are enough. 

First, take the oil found in the rectangular ducts. The round 

ducts had oil because they had been poorly cleaned. That oil 

caused extensive flaking in the round ducts, which were made 

in the same place and by the same manufacturers as the 

rectangular ducts. Although there was less oil in the 

rectangular ducts, the FAA found there was enough oil in them

to indicate that the problem that plagued the round ducts would 

also plague the rectangular ducts. That reasonable finding was 

supported by an expert’s testimony that the presence of even 

small amounts of oil could lead to variability in coating 

adhesion. 

Second, look at the adhesion test scores. Although some 

of the spot-tested rectangular ducts showed acceptable 

adhesion levels — the parties dispute how many — a 

significant number (17) received the lowest grade possible (0). 

Those results came from the same test that was used by the 

company Archer hired to investigate the flaking, by that same 

company when Archer’s subcontractor hired it, and by the 

manufacturer of the antimicrobial coating. 

Third, consider the flaking in the turning vanes of the 

rectangular ducts. Turning vanes are components of airducts 

that direct airflow around corners. It is far from unreasonable 

to suspect that flaking there bodes poorly for the adhesion in 

the rest of the rectangular ducts. 
12

For each of those three categories of evidence, Archer has 

a ready response. It notes that there was less oil on the 

rectangular ducts than on the circular ducts. It argues that the 

adhesion tests were taken in an improper way and applied a 

grading standard that was too rigorous. And it adds that the 

turning vanes could have been replaced without removing the 

main parts of the rectangular ducts.

But those arguments against the FAA’s view merely show 

“a plausible alternative interpretation of the evidence” that 

“would support a contrary view.” Western Air Lines, 495 F.2d 

at 152. They do not eliminate the “relevant evidence” that 

would allow “a reasonable mind” to accept the FAA’s view “as 

adequate to support” its factual “conclusion.” Pham, 33 F.4th 

at 581 (cleaned up). It is not our place to say how much oil is 

enough oil to portend a flaking problem, which testing method 

is the most accurate, or whose testing standard is the most fair. 

In short, there is substantial evidence that the antimicrobial 

coating failed to sufficiently adhere to the rectangular airducts. 

And because Archer concedes that the FAA could reject the 

airducts if the antimicrobial coating did not “form the interior 

surface of the duct[s]” as required by the contract, JA 125-26, 

the FAA was not arbitrary and capricious when it required 

Archer to replace the rectangular ducts.

* * *

We grant the petition in part and deny it in part: We vacate 

the FAA’s order only as to its dismissal of Archer’s first claim 

for failure to provide an equitable adjustment. The other 

challenged aspects of the FAA’s order are not arbitrary and 

capricious.

So ordered.