Civilian Board of Contract Appeals

All Phase Services, Inc. v. Department of Veterans Affairs

Case no.: CBCA 8034
Date filed: June 30, 2026

The Civilian Board of Contract Appeals has ruled the government’s specifications would not have voided a roof warranty. The specs were not defective, and the contractor’s failure to prosecute the work was not excused.

The US Department of Veterans Affairs awarded a contract to All Phase Services Inc. (APS) to replace 55 roof areas at the VA Medical Center in Buffalo. The multi-story building was clad with limestone panels. Limestone is an absorptive stone, so the building was constructed with thru-wall structures.

These structures include bent copper flashing. Any water that gets behind a limestone panel will weep to the exterior. The building, as constructed, had thru-wall structures at every level and above every door and window.

After work commenced, APS sent the VA a request for information, which noted the insulated roofing materials specified in the contract were burying some of the thru-wall structures and that the insulation was absorbing moisture. APS was concerned that this would void the roof warranties. How did the VA want to proceed?

A VA architect said the project should be constructed as designed, and the thru-wall structures would continue to function as intended. The manufacturer of the specified product, Tremco, stated it would provide a warranty for the product despite the presence of the structures.

APS had completed only seven of the 55 roof areas. The VA was concerned about APS's untimely performance and issued a cure notice, followed by a show-cause notice. These notices threatened the contractor with default termination. APS’s responses did not mention the issue with the thru-wall structures.

The VA terminated the contract for default due to inadequate progress. APS appealed the default, arguing in part that it had been confronted with defective specifications for the roofing materials.

The board said there was no evidence the buried thru-wall structures had impeded the contractor’s work. APS had raised the issue of moisture entering the insulation and expressed concern about the warranty. The VA directed the contractor to proceed with the project as designed. APS never mentioned the issue again until after the default termination.

“APS did not establish that the specification requirement to build the roofing material with insulation so that the thru-wall structure is buried is a defect. The roofing systems that APS was hired to replace had buried thru-walls. VA’s expert testified that, if buried thru-walls are causing water to collect, the water will leak into the building. VA did not report problems with the water leaking into the building with the prior roof.”

The court also said, “APS also provided no evidence that its contract difficulties were caused by the purported defect or that the purported defect delayed its performance. APS notified VA of the issue in an RFI. In response, the VA’s architect determined that the roof could be installed as designed, and VA received assurances that Tremco, the roofing material supplier, would warranty the roof.”

If the VA had been slow to respond to the RFI, forcing the contractor into standby while awaiting instructions on how to proceed, it would have been an excusable delay. However, that was apparently not the case here.

If an explanation for performance problems is not offered during the default process, that explanation loses a lot of its persuasiveness when raised in a subsequent appeal of the default termination.

Participants:
For All Phase Services: Lawrence J. Sklute; Potomac, Maryland
For Department of Veterans Affairs: Jennifer L. Hedge; Pittsburgh, Pennsylvania
Before: Board Judges Beardsley, Sheridan, and Sullivan
Opinion by: Board Judge Sullivan
Outcome: Appeal of default termination denied

Source: Please click here to read the complete opinion.