                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-1658



MASTEC NORTH AMERICA, INCORPORATED, a Florida
corporation,

                                            Plaintiff - Appellant,

          versus


NEXTIRAONE FEDERAL, LLC, a Delaware limited
liability company,

                                             Defendant - Appellee.



                            No. 06-1717



MASTEC NORTH AMERICA, INCORPORATED, a Florida
corporation,

                                             Plaintiff - Appellee,

          versus


NEXTIRAONE FEDERAL, LLC, a Delaware limited
liability company,

                                            Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema, District
Judge. (1:05-cv-01070-LMB)
Argued:   October 31, 2007            Decided:   February 22, 2008


Before WILKINSON and MOTZ, Circuit Judges, and Louise W. FLANAGAN,
Chief United States District Judge for the Eastern District of
North Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Erik W. Scharf, Coconut Creek, Florida, for MasTec North
America, Incorporated, a Florida corporation. Michael Allen Gatje,
AKERMAN, SENTERFITT, WICKWIRE & GAVIN, Vienna, Virginia, for
NextiraOne Federal, LLC, a Delaware limited liability company. ON
BRIEF:   Carter B. Reid, Vivian Katsantonis, Scott W. Kowalski,
WATT, TIEDER, HOFFAR & FITZGERALD, LLP, McLean, Virginia, for
MasTec North America, Incorporated, a Florida corporation. Donald
G. Gavin, Jeffrey G. Gilmore, AKERMAN, SENTERFITT, WICKWIRE &
GAVIN, Vienna, Virginia, for NextiraOne Federal, LLC, a Delaware
limited liability company.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     MasTec North America, Incorporated (“MasTec”), a contractor

for communications companies, utilities, and governments, brought

this action against NextiraOne Federal, LLC (“NextiraOne”), also a

communications   contractor,    alleging    breach   of   a   construction

contract. MasTec alleged that NextiraOne breached the contract by,

among other things, wrongfully terminating the contract and failing

to pay MasTec for the work performed and its costs.             NextiraOne

counterclaimed, alleging, inter alia, breach of the same contract

for failure to perform.    After a bench trial, the court found in

favor of NextiraOne on its breach of contract counterclaim, but

found that no damages were proved.         Both parties now appeal the

court’s rulings.   We affirm.



                                   I


     On November 27, 2002, NextiraOne entered into a prime contract

with the United States Department of the Army, promising to upgrade

and modernize its post at Fort Rucker, Alabama.               The contract

involved three main categories of work: outside plant work (“OSP”),

inside plant work (“ISP”), and data network installation (“DNI”).

OSP work included excavation, the backfilling of trenches, and the

installation of fiber optic and copper cable, conduits, and other

equipment.    ISP work involved the connection of the OSP cables to

individual buildings on the post.      The contract contemplated that

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the DNI would occur after the completion of the OSP and ISP work.

(See J.A. at 2462, 2465-66.)

       On January 27, 2003, NextiraOne entered into a subcontract

with MasTec.      MasTec’s job was to provide the OSP and ISP work on

the    project.        (J.A.   at    2323-61.)            During    the    design      phase,

NextiraOne paid MasTec for its work; under the subcontract’s

“milestone” payment schedule, MasTec was entitled to payment for

the    construction      phase       of    the      project      upon     completion     and

acceptance by the United States Army.                     (See J.A. at 2361.)

       Completion of the construction phase included the proper

restoration of the construction areas, which paragraph 5.4.9 of the

subcontract defines as “[r]estoration to the same condition as

found prior to construction,” completed “within 72 hours for all

areas     where   no    additional         intrusion        by     heavy    equipment     is

required.”      (J.A. at 2467.)

       During     the    first       half      of    2004,       United       States     Army

representatives informed NextiraOne and MasTec personnel, orally

and in writing, that MasTec was failing to adequately perform

restoration work.        (See J.A. at 2829, 2834-35.)

       On June 9, 2004, NextiraOne sent a cure notice to MasTec

stating    that    MasTec      was     failing       to    perform      its    subcontract

obligations regarding installation work generally and restoration

work    particularly.          (J.A.      at   233.)        In   accordance      with    the

termination provision of the subcontract, Section H.12, NextiraOne


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notified MasTec that it was in breach of paragraph 5.4.9, the

restoration provision of the subcontract, and had ten (10) business

days from the date of the letter in which to cure the breach prior

to NextiraOne taking legal action.

       After issuance of the cure notice, MasTec personnel were

informed, throughout June, July, and August of 2004, that MasTec

was failing to adequately perform under the terms of the contract.

(See    J.A.   at    2839-41,   2859,    2867-69,    244-55.)        NextiraOne

terminated MasTec by letter dated August 18, 2004, for failure to

comply with the cure notice.          (J.A. at 2669.)

       In a decision issued from the bench upon conclusion of a five

day trial, the court found in favor of the defendant on its

counterclaim, and held that due to a “continuous and constant

series of restoration problems,” the “defendant therefore was

justified      in   the   termination.”      (J.A.     at   2311.)     Through

communications such as “to do” lists prepared by inspectors and

presented to MasTec, email communications between the parties, and

face-to-face        communications,     MasTec   was    well-aware     of   the

prevailing concerns.        (See J.A. at 1579-97, 1926-31, 2829, 2839-

41.)     Thus, the parties were apprised periodically, and at times

almost daily, of the “chronic and constant” difficulties, putting

MasTec on “clear notice [as required by the Federal Acquisition

Regulation, 48 C.F.R. § 52.249-8 (1984) (“F.A.R.”)].”                 (J.A. at

2309.)    Therefore, the court found, MasTec received “an adequate


                                        5
cure notice as required under the [F.A.R.].”     (J.A. at 2309.)

However, the district court, having found that “the evidence in

this record is all over the waterfront,” determined that neither

party “has proven by a preponderance of the evidence that it is

entitled to any compensation in this case.” (J.A. at 2311, 2315.)



                               II

     We have reviewed the record, briefs, and applicable law, and

considered the oral arguments of the parties, and we are persuaded

that the district court reached the correct result.   We therefore

affirm on the reasoning of the district court.   See MasTec North

America, Inc. v. NextiraOne Federal, LLC, No. 1:05-CV-1070 (E.D.

Va. May 5, 2006).

                                                          AFFIRMED




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