Sergent's Mechanical Systems, Inc., Dba Sergent Construction v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SERGENT'S MECHANICAL SYSTEMS, INC., DBA
SERGENT CONSTRUCTION,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2025-1116
______________________
Appeal from the United States Court of Federal Claims
in No. 1:21-cv-01685-MHS, Chief Judge Matthew H. Sol-
omson.
______________________
Decided: May 21, 2026
______________________
J OSEPH WHITCOMB, Whitcomb, Selinsky, PC, Lake-
wood, CO, argued for plaintiff-appellant.
VINCENT DE P AUL P HILLIPS , J R., Commercial Litigation
Branch, Civil Division, United States Department of Jus-
tice, Washington, DC, argued for defendant-appellee. Also
represented by D EBORAH A NN BYNUM , MATTHEW J UDE
CARHART , P ATRICIA M. M CCARTHY , B RETT SHUMATE;
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SERGENT' S MECHANICAL SYSTEMS, INC. v. US 2
K ATHLEEN RAMOS , Office of General Counsel, United
States Department of Veterans Affairs, Arlington, TX.
______________________
Before T ARANTO, SCHALL , and CHEN, Circuit Judges.
T ARANTO, Circuit Judge.
In 2021, the Department of Veterans Affairs (VA) ter-
minated its 2020 contract with Sergent’s Mechanical Sys-
tems, Inc. (d/b/a Sergent Construction) for default. VA did
so after Sergent confirmed that it would not timely com-
plete performance of the work required by the contract—
work involving asbestos abatement and heating, ventila-
tion, and air conditioning (HVAC) systems at a VA facility.
Sergent sought relief from the termination under the Con-
tract Disputes Act (CDA), 41 U.S.C. §§ 7101–7109, filing
suit in the United States Court of Federal Claims (Claims
Court). The Claims Court granted summary judgment in
favor of VA in 2024, determining that VA properly termi-
nated the contract for Sergent’s default because no modifi-
cation of the contract occurred and no circumstances
excused Sergent’s delay in performance. Sergent’s Mechan-
ical Systems, Inc. v. United States, 173 Fed. Cl. 56, 63–74,
76–77 (2024) (Decision). Sergent appealed, and we now af-
firm.
I
A
In June 2020, VA and Sergent entered into Contract
No. 36C24820C0067 (Contract), in which Sergent agreed to
perform certain HVAC and asbestos-abatement services at
the C.W. Bill Young Medical Center in Bay Pines, Florida
(Medical Center) by August 17, 2021. J.A. 64, 89, 338, 346.
There is no genuinely disputed issue of material fact pre-
sented on appeal. See Appellant Opening Br. at 12–14; Ap-
pellee Br. at 20–23. The appeal focuses on three contested
components of the Contract.
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SERGENT ' S MECHANICAL SYSTEMS, INC. v. US 3
First, the Contract stated that the Medical Center
would remain operational “24 hours a day 7 days a week”
during the performance period. J.A. 835. For that reason,
VA required that “any interruption in service must be
scheduled and coordinated with the [Contracting Officer’s
Representative (COR)].” Id. Sergent agreed to seek per-
mission from the COR, in writing, for any proposed outage
in utility services seven or fifteen calendar days in advance
of said outage, depending on the scale of the interruption.
J.A. 836–37. The Contract made clear that VA had discre-
tion in approving or denying a proposed outage in utility
services and could reschedule an outage to when it would
“cause least inconvenience” to the Medical Center. Id.
Second, Sergent agreed to perform HVAC cooling-coil-
replacement work between October 2020 and March 2021.
J.A. 499, 508, 1412. The Contract clearly identified re-
quirements for the to-be-installed cooling coil, stating
“END” at the conclusion of the requirements section, i.e.,
Section 23 82 16, of the Contract. J.A. 1388–90. Rele-
vantly, the Contract specified the required diameter of the
cooling coils: a “[m]inimum 16 mm (0.625 inch) tube diam-
eter.” J.A. 1389. In an addendum following a different sec-
tion of the Contract, i.e., Section 23 73 00, the Contract
attached materials submitted by a different contractor in
2009 showing samples of cooling coils, some of which had
smaller diameters than the Contract required Sergent to
install. See J.A. 1221–386.
Third, Sergent agreed to perform asbestos abatement
as part of its renovation work. Two sections of the Contract
are relevant for understanding the extent of Sergent’s as-
bestos-related duties: a section containing notes, J.A. 463–
64; and Section 02 82 11 (“Traditional Asbestos Abate-
ment”), J.A. 972, 982, 984, which is cross-referenced in the
notes section, see J.A. 464.
Specifically, VA provided Sergent with “General Abate-
ment Notes,” “Architectural General Notes,” and “General
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SERGENT' S MECHANICAL SYSTEMS, INC. v. US 4
Project Notes” that detailed the extent of Sergent’s asbes-
tos-abatement responsibilities. J.A. 464. The General
Abatement Notes informed Sergent that the Contract con-
tained estimates of the asbestos to be abated as part of the
renovation project and that Sergent was responsible for un-
derstanding the extent of its abatement duties:
The following notes apply to all ductwork and all
chilled water piping elbows potentially impacted by
work of this project . . . .
1. Contractor shall remove all asbestos containing
and asbestos contaminated materials indicated in
these general notes, specifications and as shown on
drawings, and dispose of as asbestos waste. Asbes-
tos containing and asbestos contaminated materi-
als include: non-friable mastic and/or seam sealer
located on the ductwork and non-friable mastic on
the CWS/CWR [i.e., Chilled Water Supply/Chilled
Water Return] pipe fitting insulation. Ductwork
mastic and/or seam sealer and pipe fitting insula-
tion with mastic is generally located above the sus-
pended ceiling system.
2. Contractor shall be responsible for field
verifying the existing quantities and condi-
tions of asbestos containing and asbestos con-
taminated materials and immediately notifying
the [COR] in writing of any discrepancies found.
[. . .]
11. There is approximately 800 linear feet of
ductwork with asbesto[s] mastic and/or seam
sealer distributed over 47 rooms/areas and approx-
imately 20 each CWS/CWR pipe fittings to be re-
moved and disposed of as asbestos. Contractor
shall assume that all ductwork and CWS/CWR fit-
tings shown on mechanical drawings for demolition
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SERGENT ' S MECHANICAL SYSTEMS, INC. v. US 5
contain non-friable asbestos in the mastics and/or
seam sealers.
J.A. 464 (emphases added).1 The Architectural General
Notes then informed Sergent that it must “[r]emove com-
pletely all materials as indicated on the drawings and as
required for new construction.” Id. In addition, the Gen-
eral Project Notes clarified that Sergent’s asbestos-abate-
ment responsibilities may evolve as the renovation
progresses, explaining:
L. Asbestos is present in duct wraps and chilled
water line elbows. Asbestos floor tile and mastic is
present in many areas. Removal of floor tile is not
required but damage or removal generated by
construction techniques or methods must be
addressed and handled by the contractor. Re-
fer to General Abatement Notes [on] this sheet[,]
Specification Section 02 82 11 [J.A. 972] and the
Hazmat “Targeted Survey Report” dated Septem-
ber 5, 2018, by Michael F. Durbin, Durbin Environ-
mental Consultants, Inc. . . .
Id. (emphases added). Section 02 82 11 reiterated that the
Contract merely provided estimates of the asbestos that
Sergent was obligated to abate, stating:
A. Below is a brief description of the estimated
quantities of asbestos containing materials to
be abated. These quantities are for informational
purposes only and are based on the best infor-
mation available at the time of the specification
preparation. The Contractor shall satisfy him-
self as the actual quantities to be abated.
Nothing in this section may be interpreted as
limiting the extent of work otherwise
1 Capitalization is altered for all excerpts of J.A. 464.
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SERGENT' S MECHANICAL SYSTEMS, INC. v. US 6
required by this [C]ontract and related docu-
ments.
B. Removal, clean-up and disposal of non-friable
asbestos containing materials (ACM) and asbes-
tos/waste contaminated elements in an appropriate
regulated area for the following approximate quan-
tities;
(800) linear feet of Mastic Material and/or Seam
Sealer on Duct distributed over 47 Rooms/Areas
(20) Each CWS/CWR Piping Insulation with Con-
cealed and/or exposed Mastic Material on fittings
2" - 6" in diameter
J.A. 972 (Section 02 82 11, subsection 1.1.2) (emphases
added). Sergent further agreed to “assume full responsibil-
ity and liability for compliance with all applicable Federal,
State and Local regulations related to any and all aspects
of the asbestos abatement project.” J.A. 982 (Section 02 82
11, subsection 1.5.2). The Contract also explicitly incorpo-
rated Occupational Safety and Health Administration
(OSHA) regulations and Federal Acquisition Regulations
(FAR) that imposed obligations on Sergent related to its
asbestos-abatement duties. See, e.g., J.A. 982 (incorporat-
ing 29 C.F.R. § 1926.1101); J.A. 439 (incorporating 48
C.F.R. (FAR) § 52.236-7).
The Contract then identified VA’s limited responsibili-
ties related to asbestos abatement, specifying just two an-
cillary duties unrelated to the present appeal. J.A. 984
(Section 02 82 11, subsection 1.5.11). The Contract further
specified that VA’s duties “shall not release [Sergent] from
any responsibility for OSHA compliance.” Id.
B
On August 18, 2020, VA issued its notice to proceed to
Sergent, which, under the Contract, meant that the dead-
line for completion was to be August 17, 2021. J.A. 43;
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SERGENT ' S MECHANICAL SYSTEMS, INC. v. US 7
Decision, at 59. Soon thereafter, Sergent encountered
problems with fulfilling its performance promises. J.A. 47–
50.
Regarding cooling coils: On August 20, 2020, Sergent
made a “submittal” to VA, which, as relevant here, rejected
it for noncompliance with the diameter requirements for
the cooling coils. See J.A. 1835. A few weeks later, Sergent
requested an equitable adjustment relating to the cooling
coils, seeking $88,841.29 in additional compensation and a
60-day extension to the period of performance. J.A. 1815–
21. Sergent reasoned that the Contract was unclear be-
cause Sergent had relied on diameters in samples from
2009 shown in the Section 23 73 00 addendum. See J.A.
1818–21. On September 17, 2020, VA denied the request,
explaining that the addendum did not alter the Contract’s
applicable cooling-coil requirements. J.A. 1989–92.
Regarding asbestos abatement: On October 30, 2020,
Sergent submitted a request for information to VA, asking
VA to identify “exactly where the 20 plus or minus elbows
[containing asbestos] are located” and indicating it wished
to receive more information about the “locations and quan-
tities of” asbestos-containing materials. J.A. 2001. In re-
sponse, VA’s lead engineer at VA Bay Pines said he had
some information but would ask his “Safety department”
for help getting more information, J.A. 1408, which led to
VA’s providing Sergent reports in December 2020 and Jan-
uary 2021, J.A. 2027–75, 2090–158.
Regarding utility-services outages: In February 2021,
VA set a three-hour ceiling on outages in the Medical Cen-
ter’s utility services. J.A. 45, 67.
On February 19, 2021, VA issued a “Cure Notice” to
Sergent, identifying multiple deficiencies in Sergent’s per-
formance and warning that, unless Sergent cured the defi-
ciencies, VA “may terminate” the Contract for default. J.A.
1636; see J.A. 1636–38. For instance, VA expressed con-
cern that Sergent had not begun its cooling-coil
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SERGENT' S MECHANICAL SYSTEMS, INC. v. US 8
replacements until January 2021, yet the Contract dead-
line for that work was March 2021. J.A. 1636. Sergent
responded to the notice on February 26, 2021, requesting a
“192-day time extension” to complete performance due to
“unforeseen” asbestos-abatement issues and noting that
“another time extension request may[ ] be forthcoming.”
J.A. 1645, see J.A. 1644–50.
VA sent a “Show Cause Notice” to Sergent on March
16, 2021, specifying various “conditions endangering per-
formance” under the Contract, stating that VA was “con-
sidering terminating the [C]ontract . . . for default,” and
giving Sergent an opportunity to respond. J.A. 1655–57.
On March 22, 2021, Sergent submitted a “schedule devia-
tion” request to VA, seeking to modify a component of the
Contract and confirming that it “will not be able to replace
all of the new cooling coils before March 31, 2021.” J.A.
2164–65. Sergent included in its submission a new pro-
posed schedule for replacement of the cooling coils, indicat-
ing that the renovation would be completed in August
2021. J.A. 2165. Sergent then specifically responded to the
Show Cause Notice on March 26, 2021, arguing that termi-
nation for default was improper and providing an updated
project schedule that contained a completion date of De-
cember 9, 2021. J.A. 1659–72, 1674; see J.A. 1659–78.
VA terminated the Contract for default on March 31,
2021. J.A. 2167–68. In May 2021, Sergent submitted a
certified claim to the contracting officer. J.A. 1680–707.
The contracting officer denied the claim on July 21, 2021.
J.A. 1709–13.
C
In August 2021, Sergent filed suit in the Claims Court,
invoking its jurisdiction under 28 U.S.C. § 1491(a)(2). J.A.
40–59. Sergent challenged VA’s termination for default,
asserting, as relevant here, that its delays were excusable,
J.A. 51–52 (First Am. Compl. ¶¶ 99–106), and also that VA
had constructively altered the Contract, J.A. 54 (First Am.
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SERGENT ' S MECHANICAL SYSTEMS, INC. v. US 9
Compl. ¶¶ 116–21). In September 2024, the Claims Court
granted summary judgment in favor of VA. Decision, at 59.
The Claims Court determined that Sergent was in default
at the time of the Contract’s termination because “there is
no dispute that the schedules Sergent submitted after the
cure notice only indicated completion dates after the con-
tractual completion date.” Id. at 66. The Claims Court
then determined that Sergent had not established a genu-
ine issue of material fact concerning its three theories of
excusable delay (related to asbestos-abatement, the cool-
ing-coil replacements, and VA’s utility-service outage re-
strictions). Id. at 66–67. The Claims Court explained in
detail why each of the alleged delays could not excuse Ser-
gent’s failure to perform, observing that the language of the
Contract put Sergent on notice of its duties and the appli-
cable requirements and VA’s actions did not modify Ser-
gent’s responsibilities. Id. at 67–74, 76–77.
The Claims Court entered final judgment, and Sergent
timely appealed. This court has jurisdiction 28 U.S.C.
§ 1295(a)(3).
II
We “review a grant of summary judgment by the Court
of Federal Claims de novo.” Anderson v. United States, 23
F.4th 1357, 1361 (Fed. Cir. 2022). “Contract interpretation
under the Contract Disputes Act is a question of law . . .
over which we exercise complete and independent review.”
States Roofing Corp. v. Winter, 587 F.3d 1364, 1368 (Fed.
Cir. 2009) (internal citation and quotation marks omitted).
Despite Sergent’s arguments to the contrary, there is
no material issue of fact presented on appeal. Sergent re-
pudiated its contractual obligations when it submitted
schedules to VA, following the cure notice, indicating that
its performance would not be completed by the agreed-upon
deadline. J.A. 1645–53, 1674–75. Unless there was a tria-
ble issue of excusable delay, or a contract modification un-
dermining the default determination, VA properly
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SERGENT' S MECHANICAL SYSTEMS, INC. v. US 10
terminated the Contract for default. See Decision, at 66
(noting that “both parties agreed that ‘this comes down to
whether or not [Sergent] can show that there was excusa-
ble delay’” (citation omitted)); Empire Energy Management
Systems, Inc. v. Roche, 362 F.3d 1343, 1351 (Fed. Cir. 2004)
(analyzing untimely performance). Here, the Claims Court
carefully addressed Sergent’s various legal theories, in-
cluding its contention that VA effectively modified the Con-
tract. Decision, at 63–74, 76–77. We agree with the Claims
Court’s analysis in all respects material to the outcome.
Rather than repeat the analysis on minor points, we ad-
dress only Sergent’s primary argument—that its delay in
performance of its asbestos-abatement obligation was ex-
cusable. See Appellant Opening Br. at 15–20. We conclude
that the asbestos-related provisions of the Contract are un-
ambiguous and that Sergent did not create a triable issue
of fact concerning its contention that VA’s actions resulted
in a modification of Sergent’s Contract duties regarding as-
bestos abatement.
Contrary to Sergent’s contention, id. at 17–18, the as-
bestos-abatement responsibilities imposed on Sergent by
the Contract are not fairly read to be limited to the VA-
estimated locations of asbestos needing abatement. The
Contract directed Sergent to examine the “general notes,
specifications[,] and . . . drawings” to understand the po-
tential scale of the project. J.A. 464 (capitalization al-
tered). The Contract explicitly clarified that VA had
provided only “estimate[s]” of how much asbestos was
within the abatement responsibility of Sergent and that
Sergent bore the responsibility for investigating the site to
identify what specific work was entailed by the abatement
obligation. J.A. 972. The Contract even added that Ser-
gent’s responsibilities could exceed the estimated scope of
abatement work if Sergent’s renovation work disturbed
other asbestos-containing materials. J.A. 464. In addition,
the Contract limited VA’s asbestos-abatement responsibil-
ities to two ancillary tasks irrelevant to the present appeal.
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SERGENT ' S MECHANICAL SYSTEMS, INC. v. US 11
See J.A. 984. Specifically, contrary to Sergent’s suggestion,
see Appellant Opening Br. at 17–20, the Contract does not
condition Sergent’s performance on VA’s provision of addi-
tional information about the location of asbestos needing
abatement.
In short, on this crucial matter of who bore the risk as
to where asbestos needing abatement would be found,
nothing in the Contract makes it reasonable to view the
Contract as leaving VA’s financial obligation open-ended.
Even if Sergent misunderstood the Contract, such misun-
derstanding does not excuse failure to meet the obligation
imposed by the Contract. See J.A. 439 (incorporating
FAR 52.236-7); Comtrol, Inc. v. United States, 294 F.3d
1357, 1364 (Fed. Cir. 2002) (explaining that a “contractor
is charged with knowledge it could have gained from con-
tract documents”); Geren v. Tecom, Inc., 566 F.3d 1037,
1045 (Fed. Cir. 2009) (explaining that a “contractor’s fail-
ure to perform is not excused if impeded by the contractor’s
failure to comply with legal obligations”).
Nor has Sergent created a triable issue of fact concern-
ing its contention that VA modified the Contract when it
voluntarily undertook to gather more information to give
to Sergent to identify locations of needed work. See Deci-
sion, at 69–70. Pursuant to FAR 2.101, a contract and any
modifications thereof must be “in writing,” unless “other-
wise authorized.” See Decision, at 69; see also Mil-Spec
Contractors, Inc. v. United States, 835 F.2d 865, 867 (Fed.
Cir. 1987). Here, Sergent has offered “no evidence of any
written modification . . . or any indication that the parties
achieved a meeting of the minds to modify the written con-
tract so as to shift asbestos-related responsibilities to [VA]
or to otherwise relieve Sergent of any contractual obliga-
tions.” See Decision, at 69. We conclude that no assertion
that the Contract was modified survives summary judg-
ment.
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SERGENT' S MECHANICAL SYSTEMS, INC. v. US 12
III
We have considered Sergent’s other arguments and
find them untimely or unpersuasive. We therefore affirm
the Claims Court’s judgment upholding VA’s termination
for default.
AFFIRMED
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