GRANTED:  June 28, 2013 
CBCA 2409
JAMES A. CUMMINGS, INC.,
Appellant,
v.
DEPARTMENT OF VETERANS AFFAIRS, 
Respondent.
Jason D. McLarry of Troutman Sanders, LLP, Atlanta, GA, counsel for Appellant.
Ricarto Brazela, Office of the General Counsel, Department of Veterans Affairs,
Washington, DC, counsel for Respondent.
Before Board Judges SOMERS, VERGILIO, and STEEL. 
SOMERS, Board Judge.
James A. Cummings, Inc. (appellant or Cummings) alleges that the Department of
Veterans Affairs (respondent or VA) owes it $213,254 for requiring steel carrier piping for
the below grade fuel piping system at a medical center.  The parties have elected to waive
a hearing and submit the case on the written record pursuant to Board Rule 19.  The record
considered by the Board in issuing this decision consists of the pleadings, the appeal file
exhibits, the parties’ submissions, including declarations, affidavits, and excerpts from
deposition transcripts.  For the reasons discussed below, we grant the appeal. 


CBCA 2409 2
Findings of Fact
On January 27, 2010, Cummings and the VA entered into a firm fixed-price contract
which required the contractor to furnish and install three separate fuel systems (gas, engine-
generated, and vehicular fueling) at a VA medical center in Orlando, Florida.  Based upon
its interpretation of the contract requirements, Cummings intended to supply a glass fiber
reinforced plastic (FRP) carrier and containment pipe system for the underground fuel
system.1  Relying upon a different interpretation, the VA planned for the contractor to install
steel carrier pipe housed within FRP containment pipe.   
The contract specifications at issue here are found in Section 23 10 00, entitled
“Facility Fuel Systems.”  This section sets forth the contract requirement for the project’s
diesel fuel oil and burner fuel oil tanks, piping, and accessories located outside, underground
or above ground.  The section is broken down into the following parts: General, Products,
and Execution.    
Part I, General, described the work and provided for quality assurance.  Relevant to
this appeal is subsection 1.3, Quality Assurance, which provides that, among other things,
the contracting officer’s approval will be based on the contractor’s certification that “the
entire installation shall conform to requirements of local and state pollution control
authorities.” Another subsection, 1.4, Submittals, required the contractor to ensure that the
fuel piping is compliant with standards established by ASTM (ASTM International, known
until 2001 as the American Society for Testing and Materials) and UL (Underwriters
Laboratories Inc.). 
Part 2, the Products section, provides, in pertinent part: 
2.5 PIPING, VALVES, FITTINGS
B. Steel Pipe and Fittings
1 Cummings explains that “‘[c]arrier’ pipe refers to small bore piping that
carries fuel or other materials from underground storage tanks to termination points,
typically housing generators or other components that rely on combustion engines. 
‘Containment’ pipe refers to larger diameter piping that encloses carrier piping to protect it
and ensure fuel is not released into the environment in the event the carrier pipe is breached
or otherwise compromised.”   

CBCA 2409 3
1. Piping: Steel, seamless or electric resistance welded
(ERW), ASTM A53 Grade B or ASTM A106 Grade B,
Schedule 40.  Aboveground piping shall be painted . . . .
 
2.6 SECONDARY CONTAINMENT FOR UNDERGROUND FUEL
PIPING SYSTEMS . . . 
B. Glass Fiber Reinforced Plastic (FRP) Conduit:
1. Conform to UL 971 and ASTM D2996 using a filament
winding process and epoxy or vinyl ester resins.
2. Design pipe, fittings and joining system for carrier pipe
fuel service, 66 EC (150 EF), 1030 kPa [kilopascals]
(150 psi [pound force per square inch] pressure, 68 kPa
(20 inches Hg [hectogram]) vacuum.  
The Execution Section, Part 3, contains these relevant parts:
3.3 INSTALLATION AND TESTING, UNDERGROUND PIPING
SYSTEMS 
A. Leak Detection system: Arrange fuel carrier piping, enclosed in
secondary containment piping, to accommodate lead detection
systems . . . 
B. Steel Fuel Carrier Piping: All joints butt or socket welding. 
Threaded piping is not permitted.  Piping ends shall be
accurately cut, true and beveled for welding. 
C. Glass Fiber Reinforced Plastic (FRP) Fuel Carrier Piping and
Secondary Containment Piping: Install in accordance with
printed instructions of pipe manufacturer.  Installation personnel
trained in accordance with Article, QUALITY ASSURANCE. 
Plastic piping not permitted in same secondary containment
system with steam or condensate piping. 
D. Secondary Containment Piping:  

CBCA 2409 4
1. Provide sand bedding and backfill material for steel
piping and pea gravel for FRP piping. . . .
Cummings reviewed the project specifications.  In addition, it examined the state and
local regulations and determined that Florida statutes require storage tank system equipment 
be approved before installation and use.  In particular, Florida Administrative Code
section 62.761-850(2)(a) provides that “storage tank system equipment used in the State of
Florida must have the approval of the [Florida Department of Environmental Protection
(FDEP)] before installation or use.”  
The Florida Administrative Code, chapter 62-761.500(8)(b), permits the use of either
fiberglass reinforced plastic piping or other non-metallic piping, or coated steel piping.
FDEP publishes an approved equipment list, which sets forth approved underground fuel
carrier and containment piping.  From this list, Cummings selected its fuel carrier and
containment system to be used on the project.  The system, identified as the Ameron
International Dualoy® 3000/LCX product, a glass fiber reinforced plastic fuel carrier piping 
system, in addition to being approved by Florida authorities, met the UL 971 standard
required by the contract specifications. 
Cummings relied on sections 2.6(B) and 3.3(C) of the Facility Fuel System
specification to prepare its proposal based on an FRP carrier and containment pipe system. 
Section 2.6(B) references carrier pipe and states that it must comply with UL 971. 
Section 3.3(C) provides installation and testing requirements for “Glass Fiber Reinforced
Plastic (FRP) Fuel Carrier Piping and Secondary Containment Piping.”  
At some date after contract award, Cummings presented the VA with its plan to use
the FRP carrier and containment system in submittal no. 231000-01.  On June 9, 2010, the
VA reviewed the submittal and determined that Cummings must review and resubmit its
submittal.  The VA advised that the “Manufacturer’s literature and data include a fiberglass
piping system; note that 23 10 00.2.5 requires steel piping for liquid fuels, 23 10 00.2.6.
requires FRP products for containment purposes – intention of the submitted product is not
clear.”  This response provided Cummings with its first indication that something was awry. 
On July 12, 2010, Cummings responded through request for information (RFI) 0052,
stating that “installation of a fuel system utilizing a steel pipe for liquid fuels, as indicated
in our submittal response, conflicts with both the requirement of the specification and local
codes.”  Cummings asserted further that: 
1. There are no factory fabricated containment systems utilizing steel
piping currently approved by the Florida Department of Environmental

CBCA 2409 5
Protection.  As a result the system you describe in your submittal response
appears to conflict with the specification section 23 10 00.1.3.3F requiring the
installation to conform to the requirements of local and state pollution control
authorities. 
 2. The project requires the installation of over 500 linear feet of 4" carrier
piping. If this piping is steel, then an 8" secondary containment system will be
needed.  There are currently no 8" UL listed FRP containment systems. 
Additionally, the large annular space between the carrier and containment
piping could promote the build up of condensation and ultimately corrosion
of the steel carrier. 
3. Specification section 23 10 00.1.4.C - Fuel Piping: indicates that the
piping must be compliance [sic] with both ASTM and UL.  We currently can
find no UL standard covering steel pipe within an [sic] FRP carrier for fuel oil
service.  
4. Specification section 23 10 00.1.6.G - Underwriters Laboratories UL
provides reference to UL 971-95 “Non-Metallic Underground Piping for
Flammable Liquids.”  There is no standard provided for metallic underground
piping.  
Cummings also stated that “specifications can be interpreted to require steel piping above
grade and non-metallic carrier and conduit below grade.”  Cummings requested that the VA
reconsider its planned use of the FRP system. 
Responding to Cummings’ request, on July 27, 2010, the VA wrote:  
1. We will accept the specified steel piping with FRP containment piping. 
2. We have confirmed with manufacturers that 4" steel pipe will fit in the
6" FRP containment sleeve.
3. UL listing pertains to FRP containment system only.
4. UL listing pertains to FRP containment system only. [sic]
5. Spec[ification] section 2.6 is headed Secondary Containment for
Underground Fuel Piping Systems.  Para 2.6 B.2 should read “containment
pipe” and not “carrier pipe.”  (emphasis added). 

CBCA 2409 6
6.  Spec section 3.3C does state FRP carrier and containment piping
which is in error but certainly does not override the specific products section
calling for steel pipe. (emphasis added).  
Cummings asked the VA to reevaluate the submittal and to approve its proposed
product.  By letter dated August 25, 2010, Cummings stated: 
As previously related, Specification 23 10 00 1,4 B.2 (Products) provides
design information for both fittings and joining of a Glass Fiber Reinforced
carrier pipe.  This response to RFI No. 52 indicates that the specification
should read “containment pipe” and not “carrier pipe.”  This statement appears
incorrect, because containment piping is generally rated for between 3 and 5
psi, whereas the pressure requirement within this specification is 150 psi. 
Additionally, Specification 23 10 00 3.3 C (Execution) relates to the
installation and testing of FRP carrier and containment pipe.  
The specifications states [sic] that the “entire installation shall conform to
requirements of local and state pollution control authorities.”  There are no
factory fabricated containment systems utilizing steel carrier pipe that are
currently approved by the Florida Department of Environmental Protection
(FDEP).  The use of steel carrier pipe with a FRP containment system would
require waiver for not utilizing the state approved or UL-listed system. . . . 
We have investigated the carrier pipe systems with the GFRP jacket that has
been recommended, and preliminary pricing indicates that the cost of the
system could be in excess of $300,000.
The VA requested that its architect/engineer (AE)  review Cummings’ contentions
that the specifications permitted the use of FRP systems.  By letter dated September 2, 2010,
the AE disagreed with Cummings’ position, stating: 
It seems that their main position is that the specified system is not currently on
the approved FDEP list; however . . . in researching this issue, we reviewed
Florida Statute, Chapter 62-761 Underground Storage Tank Systems and have
found no exclusion to using steel carrier pipe – the rationale being that, if steel
or other materials are used, they must be contained as required in this Chapter. 
We also spoke to a piping system fabricator who discussed this issue with a
representative of the FDEP who indicated that the steel pipe with an FRP
jacket meets the State intent.

CBCA 2409 7
After receiving these comments, on September 7, 2010, the VA rejected Cummings’
request and directed Cummings to supply and install steel for underground fuel piping, with
FRP for the secondary containment system.  Cummings advised the VA by letter dated
September 21, 2010, that it would proceed under protest with the installation of a steel fuel
piping system using FRP secondary containment.  In a letter sent to the VA on
September 29, 2010, Cummings explained that it believed the specifications to be
ambiguous.  
The VA’s resident engineer confirmed in his deposition that the specifications
contained errors.  He testified that the specifications for the project were developed by using
master specifications or templates modified to suit particular VA projects.  The VA’s
architect/engineer is responsible to delete provisions included in the master specifications
that do not conform with the VA’s intent.  
As to the issues of the errors contained in the language of the specifications, the
resident engineer testified about paragraph 2.6, entitled “Secondary Containment for
Underground Fuel Piping Systems,” located in the “Products” section.  He said that
subparagraph 2.6(B)(2) should have read “containment pipe,” not “carrier pipe.”  Further,
in the “Execution” section, paragraph 3.3, entitled “Installation and Testing, Underground
Piping Systems,” subsection (C) should also have read “containment pipe.”  When asked
whether the resident engineer would agree that the installation specification for FRP carrier
pipe was at least ambiguous, he testified, “It’s not the best.”  
On December 30, 2010, Cummings submitted a certified claim to the VA, seeking
$244,079.  Cummings supported its claim by including a letter from its subcontractor,
Fueling Components, dated December 27, 2010.  The letter stated, “We have provided a
change request in the amount of $228,448 for the above mentioned costs increase [sic] for
Tricon Piping System [the steel system] with the appropriate decrease in the Ameron Piping
System [the FRP system].”  The subcontractor submitted an invoice, showing the net cost
of the change in systems was $205,439.  Adding overhead, profit, and bond, the total was
$228,448.  A more detailed voucher  illustrated the change in cost from a fiberglass carrier
pipe with fiberglass containment to  a steel pipe with fiberglass containment.  Cummings
also submitted various quotes from other subcontractors for a steel pipe system.  The
contracting officer denied the claim.  
Cummings submitted a notice of appeal, docketed on May 3, 2011.  In its appeal,
Cummings decreased its claim from $228,448 to $196,877, noting that its subcontractor and
sub-subcontractor had provided revised pricing for the system.  Cummings later amended
its complaint, increasing its claim to $213,254, based upon additional labor costs. 
Cummings submitted vouchers supporting the final claimed amount. 

CBCA 2409 8
Discussion
The parties focus upon whether the contract has a patent ambiguity.  As noted above,
the resident engineer testified that subsection 3.3(C) did include an erroneous reference to
“FRP Fuel Carrier” piping.  This type of piping is also addressed in paragraph 3.3(D),
“Secondary Containment Piping,” which provides for its installation requirements.  When
combined with the errors conceded above, the VA asks us to find a patent ambiguity,
arguing that “the solitary deed Appellant needed to make to resolve any potential confusion
concerning the use of a Steel Carrier Pipe versus an [sic] FRP carrier pipe was to inquire. 
A simple request for information prior to bid would have resolved any possible questions
regarding the Underground Piping.”  
Cummings disagrees, arguing that the VA had failed to show that the specification
was patently ambiguous, citing Ted-Paradigm Environmental, Inc. v. United States,
465 F.3d 1329, 1338 (Fed. Cir. 2006) (for ambiguity to exist there must be more than one
reasonable interpretation of contract language); Gaston & Associates, Inc. v. United States,
27 Fed. Cl. 243 (1992) (discrepancy identified by other bidders who sought clarification);
Mountain Home Contractors v. United States, 425 F.2d 1260 (Ct. Cl. 1970) (no inquiry
when claim associated with disputed specification was “less than one half of one percent of
the total contract price”).  Cummings asserts that no glaring ambiguity could be found at bid
time so as to place a reasonable contractor on notice and to prompt the contractor to rectify
the inconsistency by inquiring.  Cummings maintains that the ambiguous nature only became
apparent after discussions with the VA after contract award, when the VA informed
Cummings that the specifications contained errors.  Any ambiguity thus could only be
considered to be a latent ambiguity.  
The parties miss the point. The real question presented here is one of contract
interpretation.  Specifically, does the contract mandate the use of steel piping or not?  After
reviewing the contract specifications, we conclude that it does not.  The terms of the contract
are not ambiguous.   
The products section refers to the use of both steel and FRP piping, and the execution
section permits either for carrier piping.  Nothing in the execution section mandates the use
of steel for the underground system.  Clearly, the contract allowed the contractor to use
either variety for carrier piping.
The contract also requires the contractor to certify that the installation would conform
to any requirements established by state and local pollution control authorities.  For
underground fuel piping, Florida requires that storage tank system equipment used in Florida
must be approved by the FDEP before installation or use.  Cummings complied with

CBCA 2409 9
Florida’s requirements, selecting its proposed FRP carrier and containment piping system
from the approved list published by the state.
   
Because the contract permitted Cummings to chose FRP carrier piping in pricing its
proposal, the VA’s rejection of Cummings’ proposal and its mandate to use steel piping
represented a change to the contract.  Cummings is entitled to an equitable adjustment based
upon this change. 
Cummings seeks $213,254, plus applicable interest.  The record contains the certified
claim and vouchers supporting the quantum sought.  The VA presented no evidence
disputing Cummings’ calculation of damages.  In an affidavit submitted by the VA from its
resident engineer, the witness addresses Cummings’ quantum damages by stating only that
“the VA has not reviewed the quantum of Cummings’ claim and cannot confirm the
accuracy.”  The Board concludes that the record amply supports the request for $213,254.
Decision
The appeal is GRANTED.  Cummings is entitled to recover $213,254, plus interest
as permitted by statute, 41 U.S.C. § 7109 (Supp. IV 2011), calculated from December 30,
2010.
  _____________________________
JERI KAYLENE SOMERS
Board Judge
We concur: 
_____________________________ ______________________________
JOSEPH A. VERGILIO CANDIDA S. STEEL
Board Judge Board Judge