No. 02-1442.

329 F.3d 848 (2003)

H.T. JOHNSON, Acting Secretary of the Navy, Appellant, v. ALL-STATE CONSTRUCTION, INC., Appellee.

United States Court of Appeals, Federal Circuit.

May 21, 2003.

Attorney(s) appearing for the Case

Timothy P. McIlmail, Attorney, Commercial Litigation Branch, Civil Division, Department of Justice, of Washington, DC, argued for appellant. With him on the brief was David M. Cohen, Director.

Barbara G. Werther, Thelen Reid & Priest LLP, of Washington, DC, argued for appellee. Of counsel was Michael Evan Jaffe.

Before RADER, LINN and DYK, Circuit Judges.

DYK, Circuit Judge.

The Secretary of the Navy ("the Navy") appeals the decision of the Armed Services Board of Contract Appeals ("Board") in favor of All-State Construction ("All-State" or "the contractor"). All-State Constr., Inc., ASBCA No. 50,586, 02-1 B.C.A. (CCH) ¶ 31,794, at 157,019-21 (Feb. 21, 2002). This case presents the question of whether the Navy was entitled to withhold progress payments from All-State. The Navy offers two justifications...

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