GRANTED: March 17, 2011 
CBCA 1966
 SINGLETON ENTERPRISES-GMT MECHANICAL 
Appellant, 
v. 
DEPARTMENT OF VETERANS AFFAIRS, 
Respondent. 
Wayne Singleton, Joint Venture Partner of Singleton Enterprises-GMT Mechanical, 
Luthersville, GA, appearing for Appellant. 
Lisa M. Clark, Office of the Regional Counsel, Department of Veterans Affairs, 
Brecksville, OH, counsel for Respondent. 
Before Board Judges BORWICK and POLLACK. 
POLLACK, Board Judge. 
This appeal arises out of contract no. VA541-C-0089, between Singleton Enterprises-
GMT Mechanical, a Joint Venture (JV or appellant), and the Department of Veterans Affairs 
(VA) for replacement of approximately 36,000 square feet of polyisobutylene (PIB) roof on 
the second floor of a building at the VA Medical Center, Wade Park, Ohio, along with new 
underlying insulation, associated masonry, carpentry, and other items. Supplemental Appeal 
File , Exhibit 1; Transcript at 83, 117, 119. This case centers on contract provisions dealing 
with the placement of new insulation on the roof deck (using asphalt), and how that related 
to the contract’s requirement for a twenty-year manufacturer warranty on the PIB roof being 
installed. 

               
           
           
               
            
               
               
             
            
        
 
               
                
           
            
               
               
               
             
   
               
               
                  
              
            
              
               
               
               
            
  
        
           
              
              
2 CBCA 1966 
A hearing on this appeal was held on November 9, 2010, in Cleveland, Ohio. Each 
party provided testimony from various witnesses. Appellant, however, provided only one 
affirmative witness, Mr. Wayne Singleton, and thus when testimony of appellant is 
referenced below, it refers to his testimony. The VA appeal file was divided into sections; 
however, it was not otherwise tabbed or numbered. Appellant provided a tabbed 
supplemental appeal file, which included most of the documents in the VA file. Because the 
supplemental appeal file has been numbered, we use it as the primary citation source in this 
decision. Additionally, the parties provided limited documents at the hearing. The Board 
here issues a two-judge decision, as appellant elected the Board’s accelerated procedure. 
Rule 53 (48 CFR 6101.53 (2010)). 
Facts 
The contract called for appellant to place layers of insulation on the roof deck and to 
attach to that insulation a new PIB roof (PIB membrane). The roofing membrane was to be 
attached to the insulation by means of specified proprietary adhesives manufactured by 
Republic Powdered Metals, Inc. (RPM). Supplemental Appeal File, Exhibit 1; Appeal File, 
sec. 4. While not stated in the specifications, the testimony of various VA witnesses makes 
it clear that the VA wrote the PIB roofing specification for this contract around RPM’s PIB 
product. Supplemental Appeal File, Exhibit 1; Transcript at 9, 119, 225, 246, 327. There 
was no evidence, however, that the insulation provisions of the contract were written around 
any particular manufacturer’s product. 
Appellant submitted a bid of $777,020. The VA opened bids on September 28, 2007, 
and awarded the contract on October 12, 2007. The contract initially called for five months 
to complete from the date of award. That was later changed at the time of notice to proceed 
(NTP) to 180 days. Supplemental Appeal File, Exhibit 1, 3; Transcript at 42. 
Section 07220, Roof and Deck Insulation (eight pages) set out the requirements for 
providing and installing new insulation on the project. It clearly addressed using asphalt for 
adhering insulation to the existing concrete roof deck. It detailed the type (grade) of asphalt 
to be used, as well as included details such as heating temperatures and coverage rates for 
application of the material. Nothing in the section made reference to the use of adhesive as 
the means for adhering insulation to the roof and deck. Supplemental Appeal File, 
Exhibit 20. 
Section 07531, Elastomeric Sheet Roofing Polyisobutylene Tear Off And 
Replacement, which ran eighteen pages and contained parts of two separate roofing 
specifications, addressed the tearing off of the existing roof and replacement with a new PIB 
membrane which was to be attached to the new insulation by means of RPM adhesives. 

               
               
             
            
              
                 
    
  
         
          
      
   
           
          
 
     
           
              
          
        
         
          
       
               
                
            
                  
              
             
               
    
3 CBCA 1966 
Portions of section 07531 were confusing and could only be explained as a mistake. Appeal 
File, sec. 4; Transcript at 206-08, 231. For example, as set out below, the roofing 
specification had two warranty paragraphs, rather than one. While there were differences in 
the two warranty specifications, each called for a twenty-year warranty and thus the 
duplication does not materially affect our analysis in this appeal. The following provisions 
from section 07531 are relevant to the claim. We list the warranty provisions in the order 
they appeared in the specification. 
1.10 WARRANTY 
A. Provide manufacturers standard twenty (20) year warranty covering 
materials and labor. Must be 100 mil. Polyisobutylene membrane adhered 
with GEOTAC or GEOBOND Adhesive. 
1.6 WARRANTY 
Roofing work subject to the terms of the Article “Warranty of Construction” 
of Section, General Conditions, except extend the warranty period to twenty 
years. 
3.03 ROOF INSULATION. 
A. Apply insulation neatly fitted to penetrations, projections, and nailers. 
Install tapered or feathered insulation around roof drains in such a way as to 
provide proper slope (maximum 3: 12 pitch) for drainage. 
B. Adhere insulation with Manufacturers Insulation Adhesive, or 
mechanically fasten per manufacturers recommendations. 
Paragraph 3.03, above, although in the roofing specification, addressed the placement 
of insulation. It was clear from the testimony of various VA witnesses that the VA wanted 
insulation attached by adhesive (as set out in Paragraph 3.03) and the VA had not meant to 
include asphalt as either the preferred method or an option. Transcript at 183-93, 222, 327. 
However, nothing in the specifications conveyed that intention or even suggested that 
asphalt could not be used. The VA’s best explanation as to how the two methods were to be 
treated was from Mr. Edward Hazel, current chief of construction at the VAMC. He 
described asphalt and adhesive as alternatives and also said that while asphalt was provided 
in the specification, the Government did not intend or imply that appellant had to use asphalt. 
Transcript at 117, 120, 180-81. 

    
               
               
              
               
       
                 
           
              
                  
             
             
                 
          
             
             
            
               
             
                
             
               
    
           
               
        
              
              
              
              
              
                 
          
                
        
                  
4 CBCA 1966 
There is no dispute between the parties as to appellant’s responsibility for providing 
a twenty-year roof warranty. However, as addressed below, the central dispute in this case 
turns on how the use of asphalt meshed with appellant’s ability to secure that warranty. 
Although the VA did not name a roof membrane supplier, the VA wrote the PIB 
roofing specification around use of the RPM PIB roof. The VA did specify the RPM 
adhesive in section 07531. Further, although RPM was not specified as the sole source for 
the roof membrane, the VA wanted that product on this project. As noted by Mr. Brian Rice, 
the contracting officer’s technical representative (COTR), had a contractor on this project 
come in with a different roof (non-RPM), the VA would have probably disapproved it. 
Transcript at 225, 246, 327. The VA had used RPM roofs at this facility for ten to fifteen 
years and had approximately fourteen roofing areas with the RPM PIB roofing product. 
Supplemental Appeal File, Exhibit 10-11; Transcript at 222-23. Mr. Rice explained the VA 
had a policy at the facility to standardize, so it would not have to deal with ten different 
roofing companies or ten different processes. Transcript at 327. 
The VA held a pre-bid conference. Appellant did not attend; however, Gire Roofing 
Construction (Gire), the firm appellant used for the roofing work, attended, as did another 
potential subcontractor, Warren Roofing & Insulation Co. (Warren). Warren was a local 
contractor with prior experience at the site. Gire was from Illinois, and there was no 
evidence it had previously worked on the facility. Supplemental Appeal File, Exhibit 10-12; 
Transcript at 196. Mr. Nick Carrozza, a VA engineer, and Mr. Rice represented the VA. 
Supplemental Appeal File, Exhibit 22; Transcript at 94-95, 254, 323-26. Neither VA 
official, however, addressed specifics as to roofing at the meeting. Instead, that was handled 
by Tom Dornbrook, sales representative for RPM.  On roofing matters, it appeared that the 
VA had essentially turned its program over to Mr. Dornbrook. In a 2008 memo, where the 
VA was seeking some advice on this claim from the Corps of Engineers, Mr. Hazel referred 
the recipient to Mr. Dornbrook for details and described Mr. Dornbrook as “the VA’s main 
contact for the roofing materials system in use for the entire hospital.” Supplemental Appeal 
File, Exhibit 34. Under questioning from the VA counsel, Mr. Dornbrook confirmed that on 
this project, he assisted as a consultant to the VA. Transcript at 236. 
Mr. Dornbrook testified as to what he said at the pre-bid conference. He confirmed 
that his presentation essentially focused on the RPM product and its requirements. He did 
not address the use of asphalt during the meeting, and stated that at the time of the pre-bid 
conference, he was in fact unaware that the VA even had provided an asphalt specification 
in its contract. He acknowledged he did not say anything involving the operation of the RPM 
warranty and use of asphalt, nor did he say that the use of asphalt would void the warranty. 
At the close of the meeting he provided the attendees with an RPM material sheet. The sheet 

                
  
            
               
                  
              
                 
             
           
               
             
               
            
                
              
               
               
                 
               
        
             
                
                
             
            
               
              
             
         
                
 
          
             
             
               
                  
5 CBCA 1966 
was not later distributed by the VA to other potential bidders. Transcript at 236, 245, 255-56, 
262, 265-66. 
Appellant received three to four bids on roofing, including bids from Gire and 
Warren. Gire provided a single price, based on seating the insulation in asphalt. Transcript 
at 11-12. Warren provided two prices. The first was a primary price of $645,000 (based on 
providing adhesive to attach insulation). The second specified a $50,000 deduct to the first 
price if asphalt was used. Warren appended the following note to its bid: “For Asphalt as the 
insulation adhesive, DEDUCT: $50,000. Asphalt is specified as the insulation adhesive but 
in (sic) not compatible with warranty requirements.” Supplemental Appeal File, Exhibit 9. 
Warren’s bid was based on using the RPM roof, and its comments as to the warranty 
referred to that product. Supplemental Appeal File, Exhibit 9. After appellant received 
Warren’s bid, it attempted to contact the VA for clarification, but was unsuccessful. It then 
proceeded to provide its bid, relying on its understanding that the specifications clearly 
provided for the use of asphalt and relying upon Gire’s pricing, which was based on asphalt. 
Transcript at 12, 42, 333. Because appellant had utilized RPM’s price for the roof 
membrane, appellant planned on using the RPM roof on top of the new insulation. While 
RPM was local, there were other manufacturers that could furnish a PIB roof. Insulation was 
not being provided by RPM. Transcript at 17, 26. The firm, quoting asphalt to appellant, 
verbally agreed to keep its price firm for ninety days from bid. Supplemental Appeal File, 
Exhibit 12; Transcript at 18-19, 45. 
When asked to explain how it reconciled bidding with the note in Warren’s bid as to 
the warranty, appellant stated it relied on the fact that the specifications called for the use of 
asphalt and further that it saw nothing in the specifications that led it to believe that RPM 
would not accept asphalt for attaching insulation, or that asphalt would void an RPM 
warranty. Essentially, appellant was stating that because the specifications were explicit as 
to the suitability of asphalt, there was no reason to assume a connection between how the 
insulation was being connected and the roofing membrane warranty. At the time of bid, 
appellant believed that the warranty could be issued. Appellant also pointed out that 
Warren’s letter related solely to RPM and that Gire’s bid contained no similar qualification 
or concern as to the use of asphalt. Supplemental Appeal File, Exhibit 24; Transcript at 331­
37. 
After award, appellant proceeded with gathering information for submittals from 
RPM. During that process, appellant was advised, either directly by Mr. Dornbrook or 
through Gire, that RPM would not provide a twenty-year warranty unless insulation was laid 
with adhesive. Appellant testified that this was the first it knew of the problem; however, 
as noted above, Warren had warned of a possible problem in its bid. Transcript at 13-14. 

                
                 
                
              
         
            
                 
              
            
             
 
             
             
               
              
             
               
       
              
                 
              
            
            
         
           
              
                
           
                 
              
              
             
             
   
               
               
6 CBCA 1966 
Based on what it had learned from RPM as to the warranty, appellant provided a letter, dated 
November 27, 2007, to the VA along with an asphalt submission. The letter advised the VA 
that RPM had said that the use of asphalt was not compatible with the RPM warranty and 
appellant would have to use adhesive. Appellant advised that adhesive would be more costly. 
Supplemental Appeal File, Exhibit 21; Transcript at 14. 
The VA did not respond, so on December 28, 2007, appellant sent a letter seeking a 
decision on the submittal. Appeal File, sec. 3. At this time, appellant was in contact with 
Mr. Dornbrook as to the roofing materials. From those contacts and conversations it became 
obvious to appellant that it was going to have to use adhesive for the insulation and do that 
regardless of whether the Government issued a formal change order or not. Appellant 
testified that after several discussions with Mr. Dornbrook, it was evident that the PIB roof 
was to be supplied using RPM materials and Mr. Dornbrook “was calling the shots.” 
Appellant characterized the use of RPM for the roofing material as essentially cast in 
concrete. With that in mind, appellant, even without a change order, took steps to secure 
adhesive so as to protect the price. Accordingly, Gire ordered 200 pails of insulation 
adhesive from Dornbrook Marketing LTD on January 11, 2008. Notice to proceed (NTP) 
was finally issued by the VA on January 14, 2008. Supplemental Appeal File, Exhibit 13; 
Transcript at 15, 18, 55, 276. 
The COTR explained the VA’s failure to respond, saying that the VA could not reject 
a submittal until there was a NTP. Transcript at 100. The VA, however, did begin an 
internal analysis. In his January 4, 2008, memo to engineering, the contracting officer (CO) 
stated, “The specifications called for asphalt as the adhesive for insulation, but the 
manufacturer may not honor the warranty using asphalt, according to the contractor.” 
Supplemental Appeal File, Exhibit 5; Transcript at 14, 42. 
On February 12, 2008, the VA rejected appellant’s submittal and provided under 
Remarks, “Revise and resubmit in accordance with design bulletin No. 1.” Three days later, 
the VA issued Bulletin No. 1, which provided: “The adhesive to be used to secure the roofing 
insulation shall be RPM Insulation Primer and RPM Insulation Adhesive as manufactured 
by Republic Metals, Inc. Asphalt shall not be used to secure insulation to the roof deck.” 
Supplemental Appeal File, Exhibit 23. Mr. Hazel described the bulletin as a clarification and 
not a contract modification. He said it addressed an ambiguity in the specifications. 
Transcript at 181-82. Pursuant to the direction, appellant provided a new submittal noting 
that the use of adhesive was based on the Government’s direction. Supplemental Appeal 
File, Exhibit 24. 
On March 13, 2008, the VA asked appellant for a proposal to delete a segment of 
construction services in the southwest corner of the roofing project. This is relevant to the 

                
                
              
                
  
               
                
             
           
            
                
                
        
                             
                   
                         
            
                       
               
                  
               
             
 
   
                        
              
              
            
             
         
              
             
                
      
7 CBCA 1966 
claim, in that it reduced the square footage to be replaced. After negotiation, the parties 
agreed that appellant would provide a credit for the deleted work. The VA has asserted that 
the claim must be adjusted for the reduced area. Appellant has contended otherwise, pointing 
out that in the modification, appellant gave the VA a credit based on the use of adhesive 
instead of asphalt as planned.  Supplemental Appeal File, Exhibit 28-32; Transcript at 103. 
Appellant in this claim seeks to recoup the difference between what it provided in the credit 
for adhesive and what that credit would have been if it had been based on asphalt. 
On April 22, 2008, appellant submitted what it designated as its claim and change 
order proposal, seeking $56,004 for changing the originally specified asphalt to RPM 
insulation adhesive. The claim included a breakdown for subcontractor costs (Gire) of 
$47,774. The remainder of the claim sought markups for the prime of 7.5% for overhead, 
7.5% for profit, and 1.44% for bond. The subcontractor costs were broken down as follows: 
Delete Asphalt 14 Ton @ $500 ($ 7,000) 
Delete Asphalt Labor 14 Ton @ $ 90 ( 1,260) 
5-Gallon Pails Adhesive 200 EA @ $216 43,200 
Labor for Pails of Adhesive 200 EA @ $ 32 6,400 
41,340 
7.5% overhead 3,101 
44,441 
1.5%(sic) profit 3,333 
Total 47,774 
The 1.5% for subcontractor profit was intended to be 7.5%. Supplemental Appeal File, 
Exhibit 6. 
Although not provided to the VA in April 2008, appellant provided at the hearing a 
further breakdown from Gire, dated April 25, 2008. It includes comparative labor prices for 
asphalt and adhesive and shows 1344.75 manhours @ $46.55 per manhour for a total of 
$62,598 for installing insulation with adhesive; and 1207.25 manhours @ $46.55 per manhour 
for a total of $56,198 for installing insulation with asphalt. Supplemental Appeal File, 
Exhibits 12, 29; Transcript at 58-59, 103, 106-07. 
On May 7, 2008, Mr. Rice authored an estimate comparing the costs for using asphalt 
versus adhesive based on 844.70 squares of roof insulation (versus 899 squares used by 
appellant). His estimate provided no breakdown as to labor or material, but rather set out an 
estimated combined cost of $56.67 per square for labor and material for laying insulation in 

                
                
                
           
             
              
             
                  
                 
          
            
             
                
             
             
                
            
              
            
              
            
                   
     
                 
             
             
               
              
               
              
    
             
                  
               
              
           
              
               
        
8 CBCA 1966 
asphalt, and $43.22 per square for laying it with adhesive. He concluded the VA was entitled 
to a net credit of $11,905.92. Supplemental Appeal File, Exhibit 36; Transcript at 65-66. The 
numbers he used in the estimate were figures he secured from Mr. Dornbrook, who in turn had 
secured the information from contractors he had contacted. Supplemental Appeal File, 
Exhibit 36-37; Transcript at 87-88. There was no background information as to what 
information was provided to the sources, and Mr. Rice under questioning stated that he did 
not have any work papers with him.  It appeared he had not reviewed any work papers prior 
to the hearing. Transcript at 207-08. At some point, the VA tweaked its numbers and in a 
June 12, 2009, memo increased the cost of the asphalt work to $57.87 per square. The change 
was never addressed nor explained. Supplemental Appeal File, Exhibit 41. 
On May 27, 2008, the VA and appellant spoke by telephone regarding appellant’s 
costs, with VA advising that it needed more justification for appellant’s numbers. Transcript 
at 296. On the same date, appellant wrote two letters to the contracting officer (CO). The 
first, referencing the earlier conversation as to costs, addressed seven cost issues. Among 
those were explanations as to how appellant arrived at square footage, appellant’s labor cost 
differences, and how appellant arrived at the asphalt credit. In the letter, appellant stated that 
by that point, asphalt cost was approaching $700 a ton, as compared to the $484 a ton it had 
bid. Supplemental Appeal File, Exhibit 17. In the second letter, appellant stated the 
following, “Unless directed otherwise in writing from the Contracting Officer, we are going 
to proceed with changing the application material from asphalt to adhesive and consider it to 
be a constructive change order coming from the Contracting Officer.” Supplemental Appeal 
File at 18. As of May 27, work had not yet begun on the roof. Roofing commenced some 
time in June or July. 
The VA provided no response to either of the two letters. It did continue to review the 
claim, focusing on pricing and still contending that using adhesive was cheaper. On 
November 6, 2008, Mr. David Sabel, chief of engineering, provided a memorandum to the 
acting CO. The memo affirmed confidence in Mr. Rice’s estimate, stating that it had been 
provided to the VA from the roofing supplier (RPM), and further addressing alleged flaws in 
appellant’s cost breakdown. Mr. Sabel claimed (1) appellant used the wrong size for the roof 
(896 squares versus 844 squares), (2) used too low a cost per ton ($487) for asphalt, since it 
based its figure on a September 2007 date (before asphalt increases in the summer of 2008), 
and (3) asserted that appellant failed to include costs such as transport, maintenance, and 
delivery of hot asphalt to the roof in its comparison of costs. In his memo, Mr. Sabel provided 
no dollar figure for any of the purported omitted items; he similarly provided no figures at 
trial. Finally, the memo said engineering had confirmed its costing through a contact person 
with the Corps of Engineers (who got her information through a subconsultant) and that the 
Corps concluded that there should be little difference in price between the two processes, with 
any cost increase for adhesive being be offset by reduced labor costs in placing adhesive in 
lieu of asphalt. Supplemental Appeal File, Exhibit 39. 

               
              
                
                
                
             
                 
               
          
                
              
               
               
              
                
              
            
             
 
            
               
               
               
                
                  
                
  
 
                  
                   
             
               
              
             
           
             
  
 
              
                 
9 CBCA 1966 
On February 1, 2009, appellant asked for a final CO decision. Again it received no 
reply. On June 12, 2009, Mr. Sabel authored another internal memorandum that in general 
tracked the prior one. Supplemental Appeal File, Exhibit 41. Still having received no reply, 
appellant filed its appeal with the Board on a deemed denial basis. Transcript at 32-33. 
In order to resolve this dispute we must determine (1) whether a twenty-year PIB roof 
was available from a manufacturer other than RPM and (2) whether a twenty-year warranty 
could be secured if insulation was placed in asphalt. Mr. Dornbrook said he knew of at least 
two RPM competitors that could have bid the project to provide the roof membrane. He 
additionally confirmed that in some instances RPM had allowed use of asphalt and honored 
warranties with asphalt. Transcript at 247-52. Mr. Sabel testified that he understood that 
RPM installed material with asphalt and he further acknowledged that the use of asphalt was 
an accepted method in certain situations. Transcript at 224. He also confirmed that there 
were “a few manufacturers that provided” a PIB system. He also testified that he assumed 
that there was another manufacturer that could have provided the roof with a warranty, stating, 
“My assumption is that if it’s a method that’s accepted, that there is a warranty available to 
install appropriately.” Transcript at 225-27. Finally, he testified that it was his understanding 
that if a contractor installed insulation with asphalt, and installed the appropriate security 
devices around it, “that would have a warranty to it.” Transcript at 224-25. 
As noted earlier, Mr. Rice’s estimate provided that the combined labor and material 
costs for adhesive should be $43.22 per square. When that figure is multiplied by 844 
squares, claimed by the VA, the result is $36,477.68. Adhesive comes in five gallon pails, 
which on this project cost $216 a pail. Each square requires a gallon of adhesive. 
Accordingly, using the VA number of 844 squares, one would need 169 pails. When 169 
pails are multiplied by the cost per pail, the total comes to $36,504 for material only. If we 
use what was purchased on the project (200 pails), the number increases to $43,200. In each 
instance, the cost of materials alone exceeds Mr. Rice’s price for materials as well as labor. 
Multiplying the VA cost of $56.67 a square for asphalt by 844 squares, the result is $47,830 
for both labor and material to lay insulation in asphalt. Even if we were to assume the cost 
of asphalt at $1000 a ton (a number we do not find valid, but use for ease of calculation), the 
difference (between $47,830 less $14,000 (for 14 tons)) would leave $33,830 for labor costs 
to place insulation in asphalt. Obviously, the comparisons make no sense. Mr. Rice’s 
calculation (once one accounts for material) yields no labor costs for adhesive, but labor of 
$33,830 for asphalt. Additionally, since the VA provided no breakdown for Mr. Rice’s 
numbers, his estimate is impossible to analyze. Finally, Gire’s labor breakdown shows total 
labor costs of $56,000 for asphalt and $62,500 for adhesive. Supplemental Appeal File, 
Exhibit 12, 36-37. 
At the hearing, appellant provided further confirmation as to its costs. It could not 
provide a written quote for asphalt on this job, because it had proceeded on a verbal quote. 

             
                
            
               
              
  
               
             
             
   
   
                
                
               
    
               
               
              
            
  
                
               
              
             
                
                 
 
                 
           
                
                 
                 
              
                
           
           
              
10 CBCA 1966 
It did, however, provide an August 2007 pricing proposal on another project, where prices 
ranged from $415 to $450 a ton. Supplemental Appeal File, Exhibit 7; Transcript at 45. 
Appellant also provided an excerpt from R.S. Means Building Construction Cost Data (65
th 
ed. 2007) (Means). The excerpt showed comparative costs for using asphalt and adhesive 
with roofing (it had no insulation listing). The comparisons showed labor of $44.50 per 
square for adhesive,  versus $33 for asphalt, an approximate 35% difference. Supplemental 
Appeal File, Exhibit 42; Transcript at 211-14. That compares to an 11% difference in Gire’s 
labor estimate. Supplemental Appeal File, Exhibit 12; Transcript at 211-12
. Finally, and a 
further buttress to appellant’s labor claim, Mr. Sabel in his testimony referred to “Means” 
several times as a valid industry source. Transcript at 206-08.  His attempts to backtrack on 
that were unconvincing. 
As a final point, one of the VA bases for claiming that the credit for asphalt material 
was understated by appellant, is that the appellant should have used the prices in effect for the 
summer of 2008 and further (particularly of concern to Mr. Hazel), that the appellant was not 
comparing like periods, since appellant was using a September 2007 date for asphalt and an 
April 2008 date for adhesive. Transcript at 139-40, 145-46. The record shows, however, that 
adhesive at $216 a pail was ordered in early January 2008, and the September 2007 price 
(while quoted at that time) was firm until late December. Thus, appellant compared prices 
for similar time frames. Supplemental Appeal File, Exhibit 13; Transcript at 18-19. 
After the hearing, each party filed a brief. The VA brief consisted of two pages and 
listed four conclusory positions with two record cites and no legal analysis. The VA points 
were that appellant’s claim was overstated, that appellant knew at bid time that adhesive was 
required, that appellant failed to properly seek clarification, and finally, that appellant did not 
follow proper procedures in submitting its claim. As an aid to the Board in assessing the 
procedural defense, the VA provided, as one of its record cites, pages 31 to 78 of the contract. 
Discussion 
When all is said and done, this case turns on the fact that in February 2008, the VA 
changed appellant’s method of performance by first rejecting appellant’s submittal calling for 
the use of asphalt to secure insulation to the existing roof; and then coupled that with issuing 
what the VA called a design bulletin. That design bulletin required appellant to use an RPM 
adhesive product to secure insulation to the roof, instead of asphalt, as appellant had bid. 
The contract clearly specified that asphalt could be used to attach new insulation to the 
existing roof deck. In fact, asphalt was the only material mentioned in the section of the 
contract specifically addressing insulation. While we recognize that the contract’s PIB 
roofing specification also contained limited provisions that addressed using adhesive to attach 
insulation to the roof deck, that limited treatment, at best, permitted an alternative means of 

              
              
              
             
             
             
 
  
              
          
       
                
           
               
    
               
         
            
            
                 
               
                 
           
                 
   
               
                 
              
    
               
               
               
                 
               
                  
 
               
               
11 CBCA 1966 
performance to the asphalt. The roofing provision’s limited inclusion of directions for use of 
adhesive (to attach insulation) in no way negated appellant’s right to set its insulation in 
asphalt, as set forth in the insulation specification. There was no patent ambiguity in the 
contract created by the two performance methods. The methods could be harmonized. 
Accordingly, in forbidding appellant from using asphalt and in directing it to use adhesive, 
the VA imposed a method of performance that appellant was not contractually required to 
provide. 
However, to resolve this dispute, we need to address additional facts. In addition to 
identifying means of adhering the insulation to the roof deck, the contract also required that 
the contractor provide the VA with a twenty-year manufacturer’s warranty for the PIB roof 
it would install on top of the insulation. At least on this particular contract, RPM (the 
manufacturer around whose products the VA wrote the roofing specifications) would not 
provide a twenty-year warranty with its roofing product, unless adhesive was used to secure 
the insulation below (which RPM was not providing). It would not provide the warranty if 
insulation was set in an asphalt base. That was the case, even though the VA did not appear 
to know at the time it prepared the specifications, or at the time of contract award, that RPM 
would impose such a condition on its warranty. 
In pricing this project, the record shows that appellant anticipated using asphalt for 
securing the insulation and anticipated using the PIB roofing membrane as manufactured by 
RPM. RPM had been providing roofs at the facility, and that fact was highlighted at the pre-
bid conference, well established on the facility, and a logical choice for contractors to bid. 
It was implicit that the VA wanted and was familiar with an RPM roof, and logical that VA 
specifications would reflect that familiarity and not conflict with RPM requirements. 
Additionally, we find that despite the fact that RPM was not specified as a sole source, it was 
highly likely that it’s the only roofing product the VA would have accepted for this project. 
Further, while the VA included asphalt as a means of attaching insulation, the VA clearly did 
not want that product and likely would never have allowed it. That said, the VA not only 
included, but also highlighted asphalt in its specifications as the means for setting insulation. 
Mr. Singleton testified that by the time appellant provided its asphalt submittal to the 
VA, it had learned from RPM that RPM was not willing to provide a twenty-year warranty, 
absent the use of its adhesive. Appellant had also concluded from conversations that the VA 
was going to require the use of the RPM roof. Given those circumstances, appellant appended 
a letter to its asphalt submittal, advising the VA of a potential RPM warranty problem. In the 
letter, appellant did not contest its obligation to provide the specified warranty, nor did it give 
up its intention to use asphalt. Instead, the letter was advising the VA of a potential problem. 
The VA did not respond to the submittal until February 12, 2008, when it returned the 
submittal and marked asphalt as rejected. The VA followed that with the design bulletin, 

             
                  
             
               
              
               
           
 
           
              
               
                
        
          
               
                
                    
             
             
             
               
              
              
                  
                
               
                  
        
            
           
              
            
             
              
              
              
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which explicitly provided appellant could not use asphalt to secure the insulation and directed 
appellant to use a specific RPM adhesive product in order to adhere the insulation. 
Once the VA received the asphalt submission in November 2007, it could have entered 
into a dialogue with appellant as to possible solutions. Alternatively, it could have simply sent 
the submittal back to appellant with a note specifying its concerns as to the warranty and the 
use of asphalt, and directed appellant to advise the VA as to how (with using asphalt) 
appellant intended to provide the warranty. Had appellant been unable to provide assurance 
as to the warranty, then the VA may have had a basis to issue a direction.  However, the VA 
first was obligated to give appellant an opportunity to meet the contract specifications. The 
VA action, in issuing the bulletin and directing how appellant was to perform, took matters 
out of appellant’s hands. Once the VA issued the bulletin, setting out directions, appellant 
no longer had control of its performance. It no longer had the opportunity to pursue the option 
of finding its own way of complying with the contract.  The VA action in denying appellant 
that opportunity constituted a change. Moreover, thereafter, appellant made its disagreement 
with the VA position clear, but the VA did nothing to change its position. 
In finding the VA action to be a change, we are mindful of the argument that appellant 
had a duty to inquire because of the “note” in the Warren letter. However, it is critical to our 
decision that Warren’s statement as to a possible conflict only involved one potential supplier, 
RPM. That is particularly significant, because testimony of government witnesses has led us 
to conclude that there were likely other manufacturers who could have provided a conforming 
PIB roof and it was likely that those manufacturers would have been willing to provide a 
warranty that would not have been voided due to setting insulation in asphalt. 
The fact that appellant’s bid had contemplated using the RPM roof does not change our 
view. A contractor is not obligated to stay with its intended bid, if after bidding it learns that 
due to mistake, improvident analysis, or changed conditions it needs to move to an alternate 
(but contract compliant) means of performance in order to comply with the contract. As long 
as the contractor performs in compliance with the specifications, it has the right to proceed 
as it finds best, even where that varies from how it bid. That is particularly the case where, 
as here, appellant appeared to have other options. 
In Shirley Construction Corp. , ASBCA 46670, 94-2 BCA ¶ 26,868, at 133,690, the 
Armed Services Board of Contract Appeals addressed the relationship between a claimed 
conflict and a contractor’s right to perform. There, the Government asserted that there was 
a conflict between the contractor’s reading of the specifications and a clear specification 
requirement as to a required wind resistance warranty. Specifically, the Government claimed 
that the contract required a warranty that covered damage from sustained winds up to seventy-
five miles an hour, and such a warranty was only available from the manufacturer specified 
in the contract if the contractor employed a combined system of roof application. The 

          
              
              
            
             
          
          
          
         
         
              
          
            
     
                 
             
    
           
                  
             
                
    
                 
     
            
            
                
             
              
                  
                
              
              
                   
                 
                    
               
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Government contended that appellant’s reading, which was otherwise reasonable, did not 
result in the needed combined system, and therefore, the appellant’s reading created a patent 
conflict with the warranty. In addressing the matter, the board said the following: 
We cannot conclude the requirement of the 75 mph warranty created an obvious 
conflict. Indeed we believe the 75 mph warranty was a clear and unambiguous 
contract requirement the successful bidder was obligated to supply under any 
interpretation of the installation specifications. Whether it was attainable under 
appellant’s interpretation from a manufacturer other than JPS is not discernable 
from this record. However, respondent’s directions to appellant effectively 
precluded appellant from pursuing its own interpretation and attempting to 
provide a 75 mile per hour sustained wind warranty. In this regard, we note 
respondent’s directions to appellant were focused on the method with the 
warranty to be complied with “in addition” as part of the combined system 
installation required under respondent’s interpretation. 
In Shirley , the board ruled in favor of the appellant, even though it could not discern from the 
record whether the appellant would have been able to secure the disputed warranty and 
thereby proceed as it planned. 
In summary, while we recognize that on the disputed contract, appellant initially 
intended to use the RPM roof, and that the combination of that roof and the use of asphalt was 
incompatible (at least on this facility), the fact remains that the contract permitted appellant 
to pursue finding an alternate roofing manufacturer (even contrary to how it bid). Had it had 
that option, it is likely that it could have provided asphalt and otherwise fully complied with 
the contract. We find the VA’s actions in directing the use of adhesive, instead of asphalt, to 
be a change. 
Appellant has claimed $56,004.76. In reviewing the evidence on quantum, the primary 
disputes involve the comparative costs of adhesive versus asphalt and the comparative labor 
costs for placing the insulation with one product versus the other. On both material and labor, 
we find appellant’s evidence to be significantly more convincing. The bulk of appellant’s 
claim is the material cost differential between the $43,200 paid for adhesive versus the $7000 
expected to have been expended for asphalt. As to the cost of adhesive, there was no real 
dispute that it cost $216 per pail. While the VA challenges appellant’s pricing of asphalt, the 
VA provides no credible evidence of a substitute number. In fact, the only credible 
contemporaneous information as to the price of asphalt was provided by appellant. It showed 
the cost in late December to be approximately $475 and in May to be as high as $700. In 
evaluating this claim, we accept the price for asphalt of $500 a ton, as claimed by appellant. 
We find that price is in line with the firm price it had up until the end of December 2007 and 
further find that given an October award, that firm price should have held. Finally, the 

                 
                
                 
  
            
  
           
              
                 
              
               
                   
    
               
       
              
                
   
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adhesive price used in the claim is the early January 2008 price and therefore, by using a late 
December date for asphalt pricing, we are using comparable time frames. As to labor, we find 
the VA evidence as to labor costs to be second hand, on its face unreasonable, and the VA 
estimate based on it to be incapable of logical analysis.  In contrast, appellant’s numbers for 
adhesive and asphalt, particularly in comparison to each other, appear generally reasonable. 
Additionally, appellant provided sufficient data to allow a critical analysis of its labor costs. 
As to the VA’s contention that because of the modification deleting part of the roof, 
we must reduce appellant’s claim, we again find in favor of appellant. While some roofing 
was deleted, the fact is that in pricing the deletion, appellant gave the VA a credit based on 
laying the insulation with adhesive. Now that we have found that the requirement for 
adhesive was a change, appellant is entitled to recoup the difference between the credit it gave 
the VA for adhesive and the credit it would have given if it had been priced on the basis of 
using asphalt. 
Finally, we find that interest should start on April 22, 2008, the date on which appellant 
first identified the dispute as a claim. 
Decision 
Based on the foregoing, we GRANT the appeal in the amount of $56,004 plus interest 
under the Contract Disputes Act, 41 U.S.C. § 7109 (as amended by Pub. L. No. 111-350, 124 
Stat. 3677, 3825-26 (2011). 
HOWARD A. POLLACK 
Board Judge 

 
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15 CBCA 1966 
I concur: 
ANTHONY S. BORWICK 
Board Judge