                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                        2008-1226


                  WEBB ELECTRIC COMPANY OF FLORIDA, INC.,

                                                           Appellant,

                                           v.


                     Michael D. Griffin, ADMINISTRATOR,
            NATIONAL AERONAUTICS AND SPACE ADMINISTRATION,

                                                           Appellee.

     Michael H. Payne, Payne Hackenbracht & Sullivan, of Fort Washington,
Pennsylvania, for appellant.

       Tara J. Kilfoyle, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for appellee. With her on the
brief were Gregory G. Katsas, Assistant Attorney General, Jeanne E. Davidson,
Director, and Reginald T. Blades, Jr., Assistant Director.

Appealed from: Armed Services Board of Contract Appeals

Administrative Judge Cheryl L. Scott.
                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit
                                       2008-1226


                   WEBB ELECTRIC COMPANY OF FLORIDA, INC.,

                                                                      Appellant,

                                            v.

                      Michael D. Griffin, ADMINISTRATOR,
             NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

                                                                      Appellee.



Appeal from the Armed Services Board of Contract Appeals in no. 54293,
Administrative Judge Cheryl L. Scott.

                            __________________________

                            DECIDED: November 10, 2008
                            __________________________



Before MICHEL, Chief Judge, CLEVENGER, and MOORE, Circuit Judges.

MICHEL, Chief Judge.

       Appellant Webb Electric Company of Florida, Inc. ("Webb") appeals the

determination of the Armed Services Board of Contract Appeals ("Board") that Webb

was not entitled to compensation for three periods of delay during Webb's performance

of a contract with defendant Michael D. Griffin in his capacity as the administrator of the

National Aeronautics and Space Administration ("NASA"). The Board determined that

Webb was in part responsible for each of these periods of delay. In re Webb Elec. Co.
of Fl., ASBCA No. 54293, 2007 WL 4179156 (2007) ("Board Decision"). The parties

waived oral argument. For the reasons given below, we affirm.

                               I.        BACKGROUND

                                    A.       The Project

      Webb and NASA contracted for Webb to perform electrical work at the NASA

John H. Glenn Research Center at Lewis Field ("GRC"). Much of this work is not at

issue on appeal; we merely note that prior to the events relevant on appeal, Webb and

NASA had modified and extended the time for performance of the contract multiple

times. The dispute centers on transformers (which the parties refer to merely as D2,

D3, D5, and D6) that Webb and another contractor, Chappy, were to replace. Chappy

was to replace D6, and Webb was to replace D2, D3, and D5.

      Under the contract between Webb and NASA, Webb was to fabricate and install

a new D2, D3, and D5 (after an extension of the original deadline) by January 31, 2002.

Board Decision, slip op. at 27-28 (¶ 76).       Under the contract between Chappy and

NASA, Chappy was to install a new D6 (likewise after an extension) by "the end of

February" 2002. Id. at 26-27 (¶ 70). Chappy was having problems installing the new

D6, and, as a result, NASA transferred some of the cable work for D6 from Chappy to

Webb. Id. at 26-27 (¶¶ 68, 72). Webb performed some of the preliminary cable work

for D2, D3, and D5 in December 2001 and January 2002.            Id. at 27 (¶ 74).   The

transformers that Webb built did not perform exactly as specified, but Webb and NASA

resolved the issue by extending the warranties for the transformers. Id. at 27 (¶ 75).

Webb expected to deliver D2, D3, and D5 to GRC on February 12, 2002. Id. At Webb's




2008-1226                                2
request, NASA and Webb extended Webb's time to install D2, D3, and D5 until

September 30, 2002. Id. at 27-28 (¶ 76).

       Webb wanted to remove and replace the old D2, D3, and D5 simultaneously,

because doing so would allow Webb to work more efficiently and would minimize the

number of power outages at GRC. Id. at 23 (¶ 56). As of January 24, 2002, Chappy

had not finished installing the new D6, and the old D2, D3, and D5 all remained in place

at GRC. Id. at 28-29 (¶ 78). At that time, NASA informed Webb that NASA did "not

want to demolish another existing D transformer until the new replacement units arrive

on site or the D6 is operational" and determined that transformers would be replaced in

the following order: D6, D5, D3, and D2. Id.

       Webb and NASA's contract provided that power outages were to be scheduled in

advance to minimize disruption of research activities. See, e.g., id. at 9 (¶ 15), 58-59.

As of January 31, 2002, NASA had not yet determined when it would allow D5 (the first

transformer Webb was to replace) to be switched off so that Webb could replace it. Id.

at 29 (¶ 79). On February 13, 2002, Webb delivered the new D2, D3, and D5 to GRC.

Id. at 30 (¶ 83). At this point, there was little work that Webb could perform until NASA

agreed to power down at least one of D2, D3, and D5. Id. at 30 (¶¶ 81-82). NASA

reported the possibility that it would turn D5 off on February 25, 2002. Id. at 30 (¶ 82).

       Webb informed NASA that Webb intended to leave GRC because there was

insufficient work for Webb to perform until NASA would schedule power outages for the

three transformers. Id. at 29-30 (¶¶ 81). Webb departed on February 20, 2002. Id. at

30 (¶ 82). A week later, Webb submitted to NASA a schedule showing removal of the

old D2, D3, and D5 in March 2002 and installation of their replacements the following




2008-1226                                3
month. Id. at 30 (¶ 84). The Board did not determine why Webb did not follow this

schedule, and the parties point to no explanation in the record.

       At NASA's request, Webb returned to GRC for a week in April 2002 to perform

some work unrelated to the transformer replacement.           Id. at 31 (¶ 86).   Webb

experienced some personnel turnover and reassignment in May 2002. Id. at 310 (¶ 87).

On May 15, 2002, Webb requested D6 be switched off on June 11, 2002, and that D5

be switched off two days later. Id. Webb returned to GRC on June 3, 2002, and

resumed cable work for D6 it had taken over from Chappy. Id. at 31 (¶ 88). Minutes

from a June 6, 2002 meeting, written by NASA personnel but signed by Webb's Daniel

Webb, described Webb's preceding absence as a "winter break." Id.

       NASA switched D5 off on June 17, 2002, and Webb began removing it the

following day.    Id. at 31-32 (¶ 89).       The discovery of asbestos-wrapped cables

associated with D5 caused a slight delay at the end of June and beginning of July. Id.

at 32 (¶ 92). The new D5 was powered up on July 26, 2002, but there were problems

with the transformer. Id. at 33, 34 (¶¶ 96, 99).

       Eventually, Chappy finished installing the new D6 in September 2002. Id. at 36

(105). Webb completed installation of the new D2 around September 19, 2002, and of

the new D3 and D5 around November 12, 2002. Id. at 36, 37 (¶¶ 106, 112).

                                B.     The Board Decision

       Webb requested compensation for numerous delays it alleged were caused by

NASA. Id. at 58-59. The Board determined that NASA did not "breach its duties to

cooperate and not to hinder or delay," id. at 59, a ruling which Webb does not appeal.

However, Webb and NASA's contract contained a standard "Suspension of Work




2008-1226                                4
clause," which the Board determined allowed Webb to recover if Webb could

"establish[] that its work was suspended, delayed or interrupted in part for an

unreasonable period of time, and that this increased its costs of performance." Id.

(citing Chaney & James Constr. Co. v United States, 421 F.2d 728, 732-34 (Ct. Cl.

1970)).   The Board found that Webb had proven forty days of unreasonable delay

attributable solely to NASA, covering three periods in 2002: February 7 to March 12,

June 13 to June 17, and September 9 to September 13. Id. at 63-65.

      Webb had also requested compensation for alleged delays covering March 12 to

June 12, July 26 to August 12, and September 13 to November 8. Id. The Board did

not award Webb compensation for delays during these time periods. Id. These three

periods of time are the focus of Webb's appeal.

                                   II.       DISCUSSION

      Our review of factual determinations of the Board is cabined by 41 U.S.C.

§ 609(b), which allows us to overturn a factual determination only if "the decision is

fraudulent, or arbitrary, or capricious, or so grossly erroneous as to necessarily imply

bad faith, or if such decision is not supported by substantial evidence." Webb argues

that certain factual findings by the Board in this case are not supported by substantial

evidence. "Substantial evidence means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion." E.L. Hamm & Assocs. v. England,

379 F.3d 1334, 1338 (Fed. Cir. 2004).

      Webb argues that the Board’s decision is not supported by substantial evidence,

but Webb does not allege that the Board committed any errors of law. We therefore will

not review the Board’s ruling that NASA did not breach its duties to cooperate and not




2008-1226                                5
hinder or delay; we will consider Webb’s substantial evidence challenge only in the

context of the sole theory of recovery the Board found applicable, the suspension-of-

work clause.

      A contractor generally may not recover for a delay under a suspension-of-work

clause if it was a cause of the delay. Blinderman Constr. Co., Inc. v. United States, 695

F.2d 552, 557, 559 (Fed. Cir. 1982). The contractor may clearly prove "apportionment

of the delay and the expense attributable to each party" and recover for the portion of

the delay attributed solely to the government. Id. at 559. Where such an apportionment

cannot be made because the causes of delay are "concurrent or intertwined," a

contractor "[g]enerally" may not recover. Id.

                        A.        March 12, 2002 to June 12, 2002

      The Board found that NASA prevented Webb from replacing D2, D3, and D5 in

early 2002 because Chappy was behind in replacing D6. According to the Board,

      NASA constructively, partially, suspended appellant's work for an
      unreasonable period of time beginning on 7 February 2002 continuing
      through appellant's de-mobilization on 20 February 2002. The earliest
      date GRC had indicated that the D5 would be available was 25 February
      2002. At some point thereafter, which we estimate to be 14 days later, on
      11 March 2002, appellant's winter break, rather than any cause solely
      attributable to GRC, kept it offsite.

Board Decision, slip op. at 63.

      Webb argues that there was no evidence from which the Board could reasonably

conclude that Webb in any way contributed to the delay from March 12, 2002 to June

12, 2002, and that this period should be treated the same as February 7, 2002 to March

11, 2002, for which the Board found a delay attributable solely to NASA. While we

agree with Webb that the casual characterization of its absence as a "winter break"




2008-1226                                 6
provides only minimal support for the Board's conclusion, Webb does not address that it

bore the burden of proof here. See Blinderman, 695 F.2d at 559. The evidence before

the Board does not suggest that Webb requested any power outages during March,

April, or May 2002. The record also does not show that the work Webb did perform

immediately upon its return to GRC in July 2002, cable work for D6, was not work that

required any of the transformers to be powered off. There is also no support for Webb's

assertion that in July 2002 NASA "relaxed" its restrictions on the number of D

transformers which could be switched off at one time.

       In the context of the sparse evidence and the allocation of the burden of proof to

Webb, we cannot say that there is not evidence from which a reasonable mind could

conclude that the delay between March 12, 2002 to June 12, 2002 is attributable in part

to Webb. We thus affirm the Board's denial of compensation to Webb for this time

period.

  B.      July 26, 2002 to August 12, 2002; September 13, 2002 to November 8, 2002

       Webb argues the Board erred in not awarding it compensation for a delay solely

attributable to NASA from July 26, 2002 to August 12, 2002. However, as NASA points

out on appeal, before the Board Webb only alleged that the suspension-of-work clause

entitled it to recover for delay "between approximately February 15, 2002 and

approximately June 3, 2002." Webb therefore waived any entitlement to compensation

for delays during this period.

       For the same reason, we reject Webb’s argument that it is entitled to recover for

a delay from September 13 to November 8.




2008-1226                               7
                                      CONCLUSION

      For the reasons provided above, we affirm the Board's denial of compensation to

Webb for alleged delays during March 12 to June 12, July 26 to August 12, and

September 13 to November 8, 2002.




2008-1226                             8
