                 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


                                       05-1053


              AST ANLAGEN – UND SANIERUNGSTECHNICK GMBH,

                                                            Appellant,


                                          v.


                   Francis J. Harvey, SECRETARY OF THE ARMY,

                                                            Appellee.


                           __________________________

                           DECIDED: December 6, 2005
                           __________________________



Before CLEVENGER, SCHALL, and BRYSON, Circuit Judges.

PER CURIAM.


                                      DECISION

      AST Anlagen – und Sanierungstechnick GmbH (“AST”) appeals the final decision

of the Armed Services Board of Contract Appeals (“Board”) in In re AST Anlagen – und

Sanierungstechnik GmbH, No. 49969, 2004 ASBCA Lexis 68 (A.S.B.C.A. June 30,

2004). In its decision, the Board denied AST’s claim that it was entitled to additional
compensation under its construction contract with the Department of the Army (“Army”)

by reason of government-caused delay to the project. We affirm.

                                      DISCUSSION

                                            I.

       This case grows out of a contract between AST and the Army for the renovation

and replacement of roofing, for painting and plastering, and for work relating to exterior

wall insulation, electrical lines, and water lines for three family housing units at Martin

Luther King Village in Mainz, Germany. After the contract work was completed, AST

submitted a certified claim to the contracting officer seeking additional compensation

under the contract. In its claim, AST asserted that it had suffered delay damages as

result of the Army’s failure to promptly accept its proposed Pumagro insulation system.

After the deemed denial of its claim, AST timely appealed to the Board. Following a

hearing, the Board denied AST’s claim, and this appeal followed. We have jurisdiction

pursuant to 28 U.S.C. § 1295(a)(10) (2000).

                                            II.

       Our scope of review in an appeal from a decision of the Board is limited.

Specifically, we must affirm the Board’s decision on any question of fact unless we find

it to be fraudulent; arbitrary or capricious; so grossly erroneous as to necessarily imply

bad faith; or not supported by substantial evidence. 41 U.S.C. § 609(b) (2000).

       The Board denied AST’s claim because it found that AST had not established

that action or inaction on the part of the Army delayed the completion of the contract

work. On appeal, AST argues that the Board’s decision must be reversed because it is

not supported by substantial evidence. In making that argument, it attacks the Board’s




05-1053                                     2
underlying findings that (i) the Army did not stop AST from installing Pumagro, (ii) AST

made a unilateral decision to install Pumagro insulation and began installing the

insulation in March of 1985, and (iii) AST continued to work on the jobsite without

interruption during the winter of 1985.

       We have no difficulty concluding that findings (ii) and (iii) above are supported by

substantial evidence. Finding (i) is more troublesome. While it is true that no formal

stop-work order was issued to AST during the period that the Army was deciding

whether to approve the use of Pumagro insulation, it appears undisputed that the

Army’s project inspector told AST not to proceed with the insulation work until approval

was forthcoming. It also appears undisputed that the contracting officer was aware of

the inspector’s direction to AST.

       However, even if AST is correct that it was told not to proceed with the insulation

work pending Army review, the result in the case is no different. The Board’s two

undisturbed findings provide substantial evidence for the ultimate finding that the time

the Army took to approve the use of Pumagro did not delay the completion of the

project. That is because these findings establish two things: first, AST proceeded with

project work during the winter of 1985;1 and second, notwithstanding what AST asserts

it was told by the project inspector, AST did not hesitate to commence the installation of

the Pumagro insulation when it was ready to do so. In other words, as far as AST was

concerned, the inspector’s instructions—whatever they were—were not an impediment

to its proceeding with the insulation work. Under these circumstances, AST cannot

establish that the Army delayed its completion of the contract work. See, e.g., Wilner v.

       1
            The record reflects that, except for six days when no work could be
performed because of freezing temperatures, AST worked continuously on the project.


05-1053                                     3
United States, 24 F.3d 1397, 1401 (Fed. Cir. 1994) (en banc) (recognizing that to prove

its claim for damages allegedly due to Government-caused delay, “the contractor has

the burden of proving the extent of the delay, that the delay was proximately caused by

Government action, and that the delay harmed the contractor”) (emphasis added).

      For the foregoing reasons, the final decision of the Board denying AST’s claim is

affirmed.

      Each party shall bear its own costs.




05-1053                                      4
