Lebolo-Watts Constructors 01 Jv, LLC v. Secretary of the Army

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
LEBOLO-WATTS CONSTRUCTORS 01 JV, LLC,
Appellant
v.
SECRETARY OF THE ARMY,
Appellee
______________________
2021-1749
______________________
Appeal from the Armed Services Board of Contract Ap-
peals in Nos. 59740, 60378, 60459, 60507, 60508, Adminis-
trative Judge J. Reid Prouty, Administrative Judge Reba
Page, Administrative Judge Richard Shackleford.
______________________
Decided: February 18, 2022
______________________
HERMAN MARTIN BRAUDE, Braude Law Group, P.C.,
Rockville, MD, argued for appellant.
D ANIEL B. VOLK, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for appellee. Also represented by BRIAN
M. BOYNTON, MARTIN F. HOCKEY , J R., P ATRICIA M.
MCCARTHY .
______________________
Case: 21-1749 Document: 42 Page: 1 Filed: 02/18/2022

-- 1 of 15 --

LEBOLO- WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 2
Before L OURIE, BRYSON, and CUNNINGHAM , Circuit
Judges.
BRYSON, Circuit Judge.
In this appeal, Lebolo-Watts Constructors 01 JV, LLC,
(“Lebolo”) seeks compensation for costs associated with the
performance of a contract to construct a satellite communi-
cations operations center at Fort Meade, Maryland. The
appeal includes a claim by Lebolo on its own behalf and
pass-through claims that Lebolo submitted on behalf of two
of its subcontractors, Worch Electric Inc. (“Worch”) and
Warner Mechanical Corporation (“Warner”). The Armed
Services Board of Contract Appeals denied compensation
as to all three claims, and this appeal followed. We affirm.
I
A
On November 24, 2010, the U.S. Army Corps of Engi-
neers published a contract solicitation for construction of
the Wideband Satellite Communication Operations Center
(“WSOC”) at Fort Meade, Maryland. J.A. 379. In addition
to the construction of the WSOC building, the contract
called for the construction of a new electrical substation.
J.A. 2. The new substation would receive power from ex-
isting electrical switchgear in another building known as
“Building 8905” and would provide power to the WSOC
building. Id.
The solicitation for the WSOC contract included Draw-
ing No. EP 601, which depicted the existing switchgear in
Building 8905. J.A. 10478. That drawing was subse-
quently revised, and on December 20, 2010, it was issued
as part of an amendment to the solicitation. J.A. 478. The
drawing indicated that the contractor was to use spare cu-
bicles five and ten in Building 8905 to connect to the
Case: 21-1749 Document: 42 Page: 2 Filed: 02/18/2022

-- 2 of 15 --

LEBOLO- WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 3
existing switchgear and to provide power to the new sub-
station. J.A. 10435.
Drawing No. EP 601 depicted two circuit breakers, one
in cubicle five and one in cubicle ten, in bold font. Id. Other
circuit breakers depicted in the drawing were shown in
light gray font. Id. As found by the Board, the typical con-
vention is that bolded items on a drawing represent new
work to indicate to the contractor what is within the con-
tract’s scope of work. J.A. 79–80, 11687.
In addition to the bolded items, the drawing included
four notes. The first note relevant here, note two, required
the contractor to “furnish and install 1 set of 3 #2/0-AWG-
C and 1 #6-AWG-G.” J.A. 10435. The second note relevant
here, note four, stated that the “circuit breaker installed in
the existing switchgear shall be compatible with the exist-
ing switchgear,” and that such work should be included “in
the coordination study.” Id. Neither the drawing nor the
contract specifications explicitly stated whether the gov-
ernment or the contractor was to furnish the circuit break-
ers to be used in cubicles 5 and 10.
Lebolo submitted a bid and was ultimately awarded
the WSOC contract. In January 2013, after work had be-
gun on the contract, representatives of Lebolo and the gov-
ernment visited Building 8905. During the visit, it became
clear that the government’s position was that Lebolo was
responsible for furnishing the two circuit breakers referred
to in Drawing No. EP 601. J.A. 11679. On March 15, 2013,
Lebolo directed one of its contractors, Enterprise Electric
Company (“Enterprise”), to “furnish and install th[o]se
breakers.” J.A. 2370. Enterprise did not obtain the circuit
breakers and deliver them to Building 8905 until June 11,
2013, causing a delay in the project. J.A. 7966.
Additional delays continued to impact the project after
the delivery of the circuit breakers. For instance, Lebolo
repeatedly notified Worch of deficiencies in its work from
May through December 2013. J.A. 36–39. Lebolo also
Case: 21-1749 Document: 42 Page: 3 Filed: 02/18/2022

-- 3 of 15 --

LEBOLO- WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 4
charged Enterprise with having caused delay on the project
starting in May 2013 and running through April 2014. J.A.
48–49; Lebolo-Watts Constructors 01 JV, LLC, ASBCA Nos.
59740, 60378, 60459, 60507, 60508, Transcript of Oct. 11,
2017, Hearing at 172–74. In addition, it was discovered
that the relays in the existing switchgear were not compat-
ible with the new circuit breakers. The government then
obtained and furnished new relays that were compatible
with the circuit breakers, resulting in a delay in contract
completion. J.A. 40–41, 11709. Another period of delay of
18 days resulted from issues with the existing differential
relays in Building 8905 and out-of-phase conductors at the
existing substation. Lebolo-Watts Constructors 01 JV,
LLC, ASBCA Nos. 59740, 60378, 60459, 60507, 60508, R4,
tab 338 (“Ockman Rep.”) at 40–42. Permanent power was
finally made available at the new substation on December
19, 2013. J.A. 48.
Throughout the contract, Lebolo negotiated several
contract modifications with the government to extend the
completion date on the contract and to compensate Lebolo
for various delays. In one of those modifications, Modifica-
tion No. A00016, the government compensated Lebolo for,
among other things, installing the new relays that the gov-
ernment furnished for use in the existing switchgear. J.A.
5453. That modification included a release for all claims
“on behalf of the Contractor and its Subcontractors and
Suppliers . . . for all delays related thereto.” Id. at 5454.
Another modification, Modification No. P00030, pro-
vided Lebolo monetary compensation and a time extension
for various delays associated with “power delays and sub-
station changes.” J.A. 1112. The release language in that
modification was very similar to the release language in
Modification No. A00016, except that Modification No.
P00030 did not specifically reference the claims of Lebolo’s
Case: 21-1749 Document: 42 Page: 4 Filed: 02/18/2022

-- 4 of 15 --

LEBOLO- WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 5
subcontractors.1 Id. A contemporaneous email exchange
between Lebolo and the government indicated that Lebolo
intended to reserve the rights of its subcontractors to bring
a delay claim for the issues addressed by Modification No.
P00030. See J.A. 5979–83.
B
After the completion of the project, Lebolo raised sev-
eral claims to the contracting officer. When those claims
were denied or not acted upon, Lebolo appealed to the
Armed Services Board of Contract Appeals.
Three claims are relevant to this appeal. Lebolo sub-
mitted one claim seeking compensation for the circuit
breakers that it furnished for use in Building 8905. In the
other two claims, which Lebolo submitted on behalf of
Worch and Warner, Lebolo sought compensation for losses
suffered by those subcontractors due to the delay in estab-
lishing permanent power at the new substation.
With respect to Lebolo’s claim regarding the circuit
breakers, the Board held that the contract required Lebolo
to provide the circuit breakers, J.A. 81, but contained a pa-
tent ambiguity concerning the requirements for the circuit
breakers to be used in Building 8905. J.A. 87. Because the
ambiguity was patent, the Board held that Lebolo had a
duty to inquire regarding the ambiguity before placing its
bid. Id. Lebolo did not make such an inquiry, and there-
fore the Board resolved the ambiguity against Lebolo. Id.
1 The release language in Modification No. P00030
read, in part, “It is further understood and agreed that this
adjustment constitutes compensation in full on behalf of
the Contractor for all costs and markups directly or indi-
rectly attributable for the change ordered, for all delays re-
lated thereto, for all extended overhead costs, and for
performance of the change within the time frame stated.”
J.A. 1112.
Case: 21-1749 Document: 42 Page: 5 Filed: 02/18/2022

-- 5 of 15 --

LEBOLO- WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 6
As a result, the Board held that Lebolo was responsible for
the circuit breakers and was not entitled to compensation
for furnishing them or for the delay resulting from the time
required to obtain them.
With respect to the pass-through subcontractor claims
seeking recovery for the delay in providing permanent
power to the project, the Board reached several conclu-
sions. First, the Board found that, to the extent the sub-
contractors’ claims were seeking compensation for delay
associated with the procurement of the circuit breakers,
that delay was attributable to Lebolo and not the govern-
ment, because the circuit breakers were the responsibility
of Lebolo. J.A. 103.
Second, as to delay that was not associated with the
circuit breakers, the Board found that Lebolo had waived
the rights of its subcontractors to raise delay claims regard-
ing the provision of permanent power when Lebolo agreed
to Modification No. P00030. J.A. 98. The Board held that
the release language in that modification, which waived
the rights of “the Contractor . . . for all delays related
thereto,” was unambiguous, because subcontractors are
not in privity of contract with the government and can raise
pass-through claims only through the general contractor.
J.A. 98 & n.50. According to the Board, because the sub-
contractors’ rights were waived in Modification No.
P00030, the government was not required to pay compen-
sation for any delay associated with the provision of per-
manent power. J.A. 99.
Third, the Board found that, even if the subcontractors’
rights were not waived, those two claims lacked merit be-
cause there was concurrent contractor-caused delay
throughout the relevant period. Specifically, the Board
found that four categories of contractor activity resulted in
a total of 353 days of delay on the project: “late finish of
masonry walls; slow progress with electrical work; late
commissioning of the substation; and slow progress with
Case: 21-1749 Document: 42 Page: 6 Filed: 02/18/2022

-- 6 of 15 --

LEBOLO- WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 7
testing/late substantial completion as-built schedule.” J.A.
29–30. In other words, the entirety of the delay on the pro-
ject was at least partially attributable to the contractor be-
cause the project was delayed in total by 353 days. J.A. 61.
The Board concluded that the contractors’ actions pre-
cluded recovery because Lebolo and its subcontractors were
“responsible for concurrent and non-concurrent delay” dur-
ing the periods of delay Lebolo asserted. J.A. 115.
Following the Board’s denial of those three claims,
Lebolo appealed to this court.
II
We review the Board’s conclusions of law de novo; we
may set aside the Board’s factual findings if they are
“fraudulent, arbitrary, or capricious”; “so grossly erroneous
as to necessarily imply bad faith;” or “not supported by sub-
stantial evidence.” Sharp Elecs. Corp. v. McHugh, 707 F.3d
1367, 1371 (Fed. Cir. 2013); 41 U.S.C. § 7107(b). Contract
interpretation is a question of law. Premier Off. Complex
of Parma, LLC v. United States, 916 F.3d 1006, 1011 (Fed.
Cir. 2019).
A
Lebolo first argues that the Board erred in determining
that the contract required Lebolo to furnish the circuit
breakers used in Building 8905. In Lebolo’s view, Drawing
No. EP 601 unambiguously requires the government to fur-
nish the circuit breakers. In the event that the drawing is
deemed ambiguous, Lebolo argues, the ambiguity is latent
and the doctrine of contra proferentem2 applies. We
2 Under the doctrine of contra proferentem, a con-
tract provision that is latently ambiguous is construed
against the drafter. HPI/GSA 3C, LLC v. Perry, 364 F.3d
1327, 1334 (Fed. Cir. 2004). As applied here, if the contract
were deemed latently ambiguous, the contract would be
Case: 21-1749 Document: 42 Page: 7 Filed: 02/18/2022

-- 7 of 15 --

LEBOLO- WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 8
conclude that the contract was patently ambiguous as to
the circuit breakers.
There are several indications that the contract re-
quired Lebolo to furnish the circuit breakers. First, the cir-
cuit breakers are depicted in bold font in Drawing No. EP
601. J.A. 10435. The Board accepted the government’s as-
sertion that the use of bold markings is a “traditional de-
sign convention” that indicates “new work for the
contractor.” J.A. 79–80. We sustain the Board’s finding
that the depiction of the circuit breakers in bold suggested
that the circuit breakers represented new work to be done
by the contractor.
Second, note four on Drawing No. EP 601 provides that
the “circuit breaker installed in the existing switchgear
shall be compatible with the existing switchgear.” J.A.
10435. Lebolo points to the past tense use of “installed” as
evidence that the circuit breakers would already be pro-
vided in the spare cubicles. Appellant’s Br. 42. However,
the imperative “shall be” suggests that some action is re-
quired on the part of the contractor. If the circuit breakers
had already been installed, there would be no need to de-
termine whether the existing circuit breakers were com-
patible with the existing switchgear, and note four would
be pointless.
Third, when Lebolo solicited bids from potential sub-
contractors, one of the bidders, 1st Electric Inc., included
the circuit breakers in its bid. J.A. 10495. Lebolo argues
that 1st Electric’s bid referred to “existing unused breakers
in the ‘spare’ cubicles” and therefore did not include fur-
nishing new circuit breakers. Appellant’s Br. 48–49. The
Board, however, found that “1st Electric did include the[]
construed to require the government, which drafted the so-
licitation, to furnish the circuit breakers used in Building
8905.
Case: 21-1749 Document: 42 Page: 8 Filed: 02/18/2022

-- 8 of 15 --

LEBOLO- WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 9
breakers in its bid.” J.A. 13. That finding is consistent
with the language in 1st Electric’s bid and is thus sup-
ported by substantial evidence.
Although the evidence supporting the government’s in-
terpretation of the contract is strong, there is some evi-
dence in favor of Lebolo’s interpretation. For instance, note
2 of Drawing No. EP 601 uses the phrase “furnish and in-
stall” to identify other equipment that Lebolo was respon-
sible for furnishing, but Drawing No. EP 601 did not use
that language to refer to the circuit breakers. J.A. 10435.
Additionally, the contract specifications described other
circuit breakers that were to be furnished and installed by
Lebolo but did not describe the circuit breakers to be used
in Building 8905. See, e.g., J.A. 9658. Finally, three of the
four electrical subcontractors that submitted bids to Lebolo
apparently did not include the circuit breakers in their
bids. See J.A. 13.
In the end, we conclude that the contract is ambiguous
with respect to the obligation to provide the circuit break-
ers. That conclusion requires us to address whether the
ambiguity is latent or patent. As the Board explained, a
patent ambiguity is one that is obvious, gross, or glaring,
such that the contractor has a duty to inquire about it.
NVT Techs., Inc. v. United States, 370 F.3d 1153, 1162
(Fed. Cir. 2004).
Lebolo cites Mountain Home Contractors v. United
States, 425 F.2d 1260 (Ct. Cl. 1970), for the proposition that
“an ambiguity cannot be patent if it is so small or infinites-
imal that there is no competitive advantage being taken by
a prospective bidder” who remains silent in order to bid a
lower amount. Appellant’s Br. 49–50. In Lebolo’s view, be-
cause the circuit breakers represented a very small portion
of the total contract price, the ambiguity regarding who
was to furnish the circuit breakers cannot be patent. We
disagree that Mountain Home compels that result.
Case: 21-1749 Document: 42 Page: 9 Filed: 02/18/2022

-- 9 of 15 --

LEBOLO- WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 10
In Mountain Home, the contract at issue was for the
construction of 300 housing units. Mountain Home, 425
F.2d at 1261. The contract provided for the installation of
kitchen exhaust fans “where shown,” yet the notations on
the drawings provided that the exhaust fans were to be bid
as an alternative, and there was no alternative item listed
in the specifications for kitchen exhaust fans. Id. at 1263.
The court observed that the cost of the exhaust fans was
$19,764, while the contract price was $4,918,600. Id. at
1264. However, the court noted that the low cost of the
fans relative to the contract price was “not the sole deter-
minative factor” in its holding that the ambiguity was la-
tent. Id. The overall question, in the court’s view, was
whether the ambiguity was “glaring or substantial” such
that it “impose[d] upon plaintiff the duty to seek clarifica-
tion from the government.” Id. The relatively low cost of
the fans was simply evidence that the ambiguity was not
glaring or substantial.
Here, by contrast, the Board held that any ambiguity
that existed in the contract with respect to the circuit
breakers was patent because of the importance of the cir-
cuit breakers to the overall project. Although the Board
acknowledged the relatively low cost of the circuit breakers
as compared to the total contract price, it noted that for
certain contract items the “significance” of the item “may
vastly exceed the purchase price.” J.A. 84 (emphasis omit-
ted). The Board pointed to the fact that a “critical delay”
resulted from the failure to procure the circuit breakers as
evidence of the circuit breakers’ significance. Id.3
3 Another difference between this case and Moun-
tain Home is that in Mountain Home the court recognized
that it was reasonable for the contractor to conclude that
many of the housing units were not intended to have ex-
haust fans. Mountain Home, 425 F.2d at 1264. Here, by
contrast, no one could reasonably allege that power could
Case: 21-1749 Document: 42 Page: 10 Filed: 02/18/2022

-- 10 of 15 --

LEBOLO- WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 11
For its part, Lebolo argues that the Board’s analysis
regarding the importance of the circuit breakers is imper-
missibly based on hindsight. However, the information
available at the time should have given rise to an inference
that the breakers were significant. For instance, the con-
tract provided that the new substation being constructed
by Lebolo would obtain its high voltage power from the ex-
isting switchgear located in Building 8905. J.A. 2. For that
reason, it would have been clear that not having circuit
breakers in the spare cubicles would result in a delay in
providing power to the new substation. And the question of
who was required to furnish the circuit breakers should
have been apparent to Lebolo given that 1st Electric in-
cluded the new circuit breakers in its bid to subcontract the
electrical work, and given that note four on Drawing No.
EP 601 was specifically called out in an amendment to the
solicitation.
We therefore conclude that the ambiguity regarding
the circuit breakers was patent. Because the ambiguity
was patent, Lebolo had a duty to inquire about the ambi-
guity. Per Aarsleff A/S v. United States, 829 F.3d 1303,
1313 (Fed. Cir. 2016). And because of its failure to do so,
the ambiguity was properly construed against Lebolo. See
id. Accordingly, Lebolo was responsible for furnishing and
installing the two circuit breakers in the spare cubicles in
Building 8905, and it is not entitled to compensation for the
cost of the circuit breakers or the delay associated with pro-
curing them.
B
Lebolo next argues that its subcontractors Worch and
Warner are entitled to compensation for government-
caused delays associated with the provision of permanent
have been provided to the new substation without the cir-
cuit breakers in the spare cubicles in Building 8905.
Case: 21-1749 Document: 42 Page: 11 Filed: 02/18/2022

-- 11 of 15 --

LEBOLO- WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 12
power at the new substation. As a preliminary matter, to
the extent that the pass-through subcontractor claims al-
lege delays associated with the procurement of circuit
breakers for use in Building 8905, those claims fail because
the circuit breakers were Lebolo’s responsibility. That de-
lay is therefore attributable to Lebolo and not to the gov-
ernment.
Lebolo argues that even if it was properly charged with
responsibility for the circuit breakers, the Board erred in
finding that Modification No. P00030 waived the rights of
Lebolo’s subcontractors to pursue claims regarding other
delays associated with the provision of permanent power.
We need not reach that issue because, even if those claims
were not waived, the subcontractors are not entitled to
compensation for those delays, for several reasons.
First, the pass-through claims that Lebolo submitted
on behalf of Worch and Warner do not allege any delays
other than delays associated with the provision of the cir-
cuit breakers. Both Worch and Warner submitted letters
describing their claims to Lebolo, and Lebolo forwarded
those letters to the contracting officer. J.A. 996–1001
(Worch letter), 2158–62 (Warner letter). Both letters fo-
cused exclusively on the delays associated with procuring
new circuit breakers for Building 8905, and no other issues.
The government recognized as much when it requested
more information from Lebolo regarding the two subcon-
tractor claims. See J.A. 1135–36, 2181–82. However, as
Lebolo acknowledged at oral argument, Lebolo never re-
sponded to those requests. See also J.A. 2184–85. Accord-
ingly, we do not construe the claims brought on behalf of
Warner and Worch as encompassing any delays not at-
tributable to the procurement and installation of the circuit
breakers.
Second, even if the pass-through claims were construed
to cover delays other than those attributable to the circuit
breakers, those claims would not be compensable because
Case: 21-1749 Document: 42 Page: 12 Filed: 02/18/2022

-- 12 of 15 --

LEBOLO- WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 13
there was concurrent contractor-caused delay throughout
the period in which the alleged government-caused delays
occurred. In order to recover on a delay claim, a contractor
must establish that “the government’s actions are the sole
proximate cause of the contractor’s additional loss, and
[that] the contractor would not have been delayed for any
other reason during that period.” Triax-Pac. v. Stone, 958
F.2d 351, 354 (Fed. Cir. 1992) (emphases omitted).4
The circuit breakers were delivered on June 11, 2013,
yet the subcontractor claims allege delay for the entire pe-
riod from February 4, 2013, until December 22, 2013. J.A.
1000, 2162. During that period, however, there were a
number of extended periods of delays that were attributa-
ble to the contractor.
On June 12, 2013, Lebolo employee Mike Boettcher
emailed Worch complaining that Worch’s electrical work
was “months behind schedule.” J.A. 37. From that time
through December 6, 2013, Lebolo expressed concern to
Worch regarding its delay on the project at least ten addi-
tional times. See id. at 37–39. Lebolo also later contacted
Enterprise and indicated that there was contractor-caused
delay beginning in May 2013 and continuing through at
4 We note that the requirement stated in Triax-Pa-
cific applies to a claim brought under the contract’s suspen-
sion clause, whereas here Lebolo brought its subcontractor
claims under the “Changes Clause.” J.A. 996, 2158. How-
ever, when the claim focuses on “delay of the contract, as
opposed to a change in the work to be performed in the con-
tract, it is the Suspension clause rather than the Changes
clause which applies.” Triax-Pac., 958 F.2d at 354. Here,
to the extent that the claims focus on delay, not on a change
in the work to be performed, the claims should be treated
as brought under the suspension clause. See id.
Case: 21-1749 Document: 42 Page: 13 Filed: 02/18/2022

-- 13 of 15 --

LEBOLO- WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 14
least April 2014. J.A. 48–49; Transcript of Oct. 11, 2017,
Hearing 172–74.
There was a 31-day period from July 2, 2013, to August
2, 2013, that Stuart Ockman, the government’s expert, rec-
ognized as government-caused delay associated with the
replacement of relays in the spare cubicles in Building
8905. Ockman Rep. 32. As Mr. Ockman noted, “replacing
the relays was initially the Government’s responsibility.”
Id. However, the execution of Modification No. A00016
waived all delay claims relating to the installation of new
relays for both Lebolo-Watts and its subcontractors. Id.;
J.A. 5453–54. The delay associated with the installation of
the new relays in Building 8905 is therefore also not com-
pensable.
Mr. Ockman also recognized an 18-day period from No-
vember 21, 2013, to December 9, 2013, as government-
caused delay. Ockman Rep. at 32, 40–42. Mr. Ockman
found that delay to be resolved by Modification No. P00030,
which purportedly resolved all delay damages on the con-
tract. Id. at 32.
Lebolo argues that Modification No. P00030 was pur-
posely made inapplicable to the subcontractors and there-
fore did not resolve the subcontractors’ delay claims. Even
accepting Lebolo’s argument on that point, however, the
subcontractors’ claims fail because of concurrent delay at-
tributable to the contractor, even with respect to the 18-
day period in November and December 2013.
The communications from Lebolo to Worch and Enter-
prise support an inference that delay attributable to the
contractor continued during that 18-day period. That in-
ference accords with the Board’s finding that 353 days of
delay, the entirety of the period of delay in the performance
of the contract, was attributable to the contractor. And we
note that on appeal Lebolo has not challenged any of the
Board’s fact-findings with respect to the periods of concur-
rent contractor delay. We therefore hold that the Board’s
Case: 21-1749 Document: 42 Page: 14 Filed: 02/18/2022

-- 14 of 15 --

LEBOLO- WATTS CONSTRUCTORS v. SECRETARY OF THE ARMY 15
finding of concurrent delay is supported by substantial ev-
idence. Accordingly, the government was not the “sole sub-
stantial cause” of delay at any point between June 11, 2013,
and December 22, 2013.5 Triax-Pac., 958 F.2d at 354.
III
In summary, the contract contained a patent ambigu-
ity regarding whether Lebolo was required to furnish the
two circuit breakers in Building 8905. Because Lebolo did
not inquire about the ambiguity, it was Lebolo’s responsi-
bility to provide the circuit breakers, and any delay associ-
ated with furnishing the circuit breakers is therefore not
compensable. Lebolo also cannot prevail on its pass-
through subcontractor delay claims because those claims
did not allege delays other than those associated with the
circuit breakers. And, in any event, there was concurrent
delay throughout the period for which Worch and Warner
seek compensation. We therefore affirm the decision of the
Board.
AFFIRMED
5 Lebolo also argues that the execution of Modifica-
tion No. P00030 is evidence that the government was re-
sponsible for the delay associated with the provision of
permanent power. Appellant’s Br. 63–64 (citing L.C. Gas-
kins Constr. Co., ASBCA No. 58550, 2018 WL 1098079
(Feb. 14, 2018)). However, that argument does not account
for the fact that there was concurrent contractor-caused de-
lay throughout the relevant time period and that Lebolo
and its subcontractors are therefore not entitled to compen-
sation for that period of delay.
Case: 21-1749 Document: 42 Page: 15 Filed: 02/18/2022

-- 15 of 15 --