ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -- )

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Carothers Construction, Inc. )

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 )

APPEARANCE FOR THE APPELLANT: Ralph B. Germany, Jr., Esq.

 Bradley Arant Boult Cummings LLP

 Jackson, MS

APPEARANCES FOR THE GOVERNMENT: Michael P. Goodman, Esq.

 Engineer Chief Trial Attorney

Kathleen P. Miller, Esq.

David C. Brasfield, Jr., Esq.

 Engineer Trial Attorneys

 U.S. Army Engineer District, Mobile

OPINION BY ADMINISTRATIVE JUDGE CLARKE

This appeal is submitted pursuant to Board Rule 11. The dispute involves a 

disagreement over whether the Air Force (AF)1 specified a proprietary 2 1/2′′ thick 

roof deck product and, if so, was Carothers Construction, Inc. (Carothers) entitled to 

substitute a 2′′ thick roof deck as an equal pursuant to Federal Acquisition Regulation 

(FAR) 52.236-5, MATERIAL AND WORKMANSHIP. We have jurisdiction 

pursuant to the Contract Disputes Act of 1978 (CDA) 41 U.S.C. §§ 7101-7109. We 

sustain the appeal. 

FINDINGS OF FACT

1. On December 15, 2015, the Air Force (AF) solicited for the phased 

replacement of the Maxwell Elementary/Middle School at Maxwell Air Force Base, 

Alabama by Solicitation No. W91278-16-URGC-0001 (R4, tab 5 at 3).

2. The solicitation included several relevant clauses: FAR 52.243-4, 

CHANGES (JUN 2007)2

, FAR 52.236-21, SPECIFICATIONS AND DRAWINGS 

 1 The Corps of Engineers was also involved, but we use Air Force (AF) to avoid 

confusion. 

2 We were unable to find FAR 52.243-4 Changes in the contract but, if it is missing, it 

is included by operation of law. Tri-County Contractors, Inc., ASBCA 

No. 58167, 15-1 BCA ¶ 36,017 at 175,916 n 2 (“Despite the absence of the 

ASBCA No. 62204

Under Contract No. W91278-12-D-0037
2

OF CONSTRUCTION (FEB 1997), and FAR 52.236-5, MATERIAL AND 

WORKMANSHIP (APR 1984) (R4, tab 4 at 94-95). FAR 52.236-5, MATERIAL

AND WORKMANSHIP, states in part:

(a) All equipment, material, and articles incorporated into 

the work covered by this contract shall be new and of the 

most suitable grade for the purpose intended, unless 

otherwise specifically provided in this contract. 

References in the specifications to equipment, material, 

articles, or patented processes by trade name, make, or 

catalog number, shall be regarded as establishing a 

standard of quality and shall not be construed as limiting 

competition. The Contractor may, at its option, use any 

equipment, material, article, or process that, in the 

judgment of the Contracting Officer, is equal to that named 

in the specifications, unless otherwise specifically provided 

in this contract. 

(Emphasis added)

3. Phase 2A of the Contract included construction of a new addition to the 

existing Maxwell Elementary School. This new addition included a performance area 

and ICC500 Storm Shelter that both feature the acoustical deck roof product. The 

solicitation, Sheet S-0023

, STEEL DECK NOTES, ¶ 2. MATERIALS, (WRA) 2-1/2′′, 

20 GA ACOUSTICAL DECK (SR-0.70), required providing a 2 1/2′′ thick acoustical 

roof deck at various locations in Phase 2A. (R4, tab 8 at 14

, tab 22 at 2 ¶ 5) There 

were no markings that would indicate the 2 1/2′′ deck was proprietary.

4. In a February 12, 2016 email and letter to Zyscovich Architects,5

Mr. Sean Smith, New Millennium Building Systems, submitted its request to substitute 

 

required FAR 52.243-4, CHANGES (JUN 2007) clause from this construction 

contract (finding 7), such clause may be deemed included pursuant to 

G.L. Christian & Associates v. United States, 312 F.2d 418, 426 (Ct. C1.), 

cert. denied, 375 U.S. 954 (1963)”). 3 Drawing sheet S-002 General Notes was developed by “Transystems” but 

“ZYSCOVICH Architects” was printed on the right side of S-002 (R4, tab 8 

at 1). We do not know the relationship between Transystems and Zyscovich. 

4 Drawing S-002 was “issued” on October 2015 pursuant to Solicitation 

No. W91278-16-URGC-0001 (R4, tab 8 at 1).

5 Zyscovich Architects name appears on the solicitation drawings (R4, tab 8 at 1) and 

we infer that Zyscovich is the original architect of record. 
3

its deck product Versa-Dek6 “as a suitable alternate to the specified Toris A (Epic 

Metals Corporation)” called out in the solicitation structural drawings.

7 Attached to 

the letter was “side-by-side metal deck product comparisons.” (R4, tab 1 at 10-13) In 

a January 11, 2019 email from Mr. Smith to Mr. Boggs, Carothers’ Senior Project 

Manager, Mr. Smith stated that he had submitted the data to Zyscovich almost three 

years ago (id. at 10). There is no indication in the record that Zyscovich responded to 

the February 12, 2016 email. 

5. The declaration of Mr. Walter Boggs is in the record (app. supp. R4, tab 3). 

Mr. Boggs was Senior Project Manager for Carothers from the time of bid through 

February 2020 (id. at 1 ¶ 4). He testified that he investigated and found that only one 

manufacturer (Epic Metals) made such a roof deck (the Toris A roof deck product) that 

was 2 1/2′′ thick (id. at 3 ¶ 10).

6. Mr. Boggs also testified: 

On behalf of Carothers, I also investigated whether the 

Versa-Deck product was an equal to the Toris/Epic Metals 

product. In that investigation I obtained the emails and 

letter from Sean Smith with New Millennium Building 

Systems included in Tab 1 of the Rule 4 file at the pages 

bates-labeled 1000010-16. As shown by that 

documentation, Mr. Smith/New Millennium documented 

how the Versa-Deck product was an equal to the 

Toris/Epic Metals product. Note this documentation 

shows it was submitted to the United States Army Corps of 

Engineers’s (“USACE”) designer of record (Zyscovich 

Architects) (the “DOR”) prior to bids for the Project, with 

the expectation that it would be used for bidding on this 

Project. Carothers provided this information to the 

USACE as part of Carothers’s effort to get approval to use 

the Versa-Deck product and to recover for not being 

allowed to use the Versa-Deck product.

(App. supp. R4, tab 3 at 3 ¶ 11)

7. Carothers bid the Contract expecting to use Harrell’s Metal Works, Inc. 

(“Harrell”) to supply the roof deck system. Harrell’s quote and Carothers’ bid for the 

 6 The product was called both “Versa-Dek” and “Versa-Deck” in different 

correspondence. We do not perceive a difference.

7 Structural drawings are identified by an “S” such as S-002 relevant in this appeal.
4

Contract were based on using the New Millennium 2′′ Versa-Deck LS ES Acoustical 

roof system. (App. supp. R4, tab 3 at 2 ¶ 7)

8. The Corps of Engineers (COE) Mobile (Alabama) District awarded Task 

Order No. W91278-12-D-0037-0003 to Carothers on March 28, 2017, in the amount 

of $39,010,686 (R4, tab 9 at 1).

9. The record includes the Declaration of Mr. Timothy R. Posey, 

Administrative Contracting Officer (ACO), for this contract (R4, tab 22 at 1). 

ACO Posey states:

The U.S. Army Corps of Engineers, Norfolk District 

entered contract W91236-14-D-0046-0007 with 

Zyscovich, Inc. (“Zyscovich”) on April 27, 2017, to obtain 

Engineering During Construction Design Services (the 

“EDC Contract”) for the Maxwell Elementary/Middle 

School Project. The EDC Contract required Zyscovich to 

provide limited reviews of Carothers’ submittal packages 

and Requests for Information (“RFI’s”). The quantity of 

submittal and RFI reviews was detailed in the negotiated 

EDC Contract. Any variation in that quantity exclusive of 

design errors, omissions, or clarifications, would require 

modification to the EDC Contract by the Norfolk District 

Contracting Officer. The U.S. Army Corps of Engineers, 

Mobile District held no contractual authority on the EDC 

Contract. However, the Mobile District Field Office was

responsible to determine which Contract submittals and 

RFI’s would be reviewed by the EDC Contract. The 

Mobile District Field Office also provided input and 

analysis for the EDC Contract regarding errors, omissions, 

and clarifications. 

(R4, tab 22 at 2 ¶ 6) 

10. Following the award of Task Order No. W91278-12-D-0037-0003, the 

initial acoustical deck submittal was received by the government on November 7,

2017, under transmittal number 05 30 00-1 (R4, tab 19 at 1, tab 22 at 3 ¶ 8). The 

submittal contained technical and test information that was not discussed in the record. 

However, it included the following:

• New Millennium Building Systems drawing D3.1 showing a section of 

VERSA-DEK®LS ES ACOUSTICAL roof deck having an overall height of 2′′. 
5

There is a note in red ink stating, “Note: Refer to sheet S-002 ‘Steel Deck Notes’

for deck height = 2 1/2′′.” (R4, tab 19 at 25) 

• New Millennium New Millennium Building Systems data sheet SECTION 

PROPERTIES CALCULATIONS listing a 2′′ deck height with a red ink annotation 

2 1/2′′ (id. at 30, 32).

• Sound Absorption Test Report for “20 Ga. Versa-Dek® 2.0 with 2′′, 3# 

Insulation and mesh spacers” (id. at 34). 

11. ACO Posey testified in his Declaration that the submittal was forwarded to

the EDC Contractor, Zyscovich, Inc., for review. ACO Posey testified:

The Contracting Officer’s Representative and I reviewed 

the plans and acknowledged the notes regarding acoustical 

deck height, made by the EDC Contractor on the Shop 

Drawings. Contract Drawing S-0002 specifically requires 

that the acoustical roof deck be 2.5′′ in height, while the 

Shop Drawings specifically call for the height to be 2′′.

(R4, tab 22 at 3 ¶ 8)

12. On or about January 3, 2018, Carothers submitted Request for Information 

(RFI) 0113 asking for approval of 2′′ Versa-Dek® LS ES Acoustical deck as a suitable 

alternative to the specified 2 1/2′′ Toris A (Epic Metals Corporation) called out on the 

structural drawings (app. supp. R4, tab 3 at 31).

13. RFI 0113 was reviewed by Zyscovich Architects that responded on 

January 19, 2018, as follows:

Question [RFI-0113]: We are seeking approval of our 

Versa-Dek® LS ES Acoustical as a suitable alternate to the 

specified Toris A (Epic Metals Corporation) called out in 

the Maxwell Elementary and Middle School project’s 

structural drawings. Please find attached side by side 

metal deck product comparisons, product submittal 

information and a formal letter outlining what metal deck 

product we are seeking approval on. Versa-Dek® LS ES

Acoustical meets and/or exceeds all load and acoustical 

value requirements. 
6

The drawings came back from approval with a stamp

saying to re-submit for the Versa Dek. The drawings 

called for 2-1/2′′ Epic deck. 

We need to get 2′′ Versa Dek approved to move forward 

on the project without delays. New Millennium Building 

Systems does not make a 2-1/2′′ deck. In fact, the only 

manufacture we can find that make 2-1/2′′ deck is Epic 

Metals Corporation.

Answer: Based on the loads and spans, a 2′′ acoustical 

deck will not comply. Contractor may submit alternate 

decking structural and acoustical properties for a 2 1/2′′ or 

possibly a 3′′ acoustical deck for review and acceptance.

(App. supp. R4, tab 3 at 31) 

14. ACO Posey testified in his Declaration as follows:

The Contracting Officer’s Representative forwarded 

RFI- 0113 to the EDC Contract for review, noting that the 

RFI was not associated with a design error, omission, or 

clarification. A response was returned to the Contracting 

Officer’s Representative by the EDC Contractor 

disapproving use of the 2′′ acoustical deck. No structural 

analysis was provided by the EDC Contractor, and it is 

unclear if the RFI was reviewed by their Structural 

Engineer Subcontractor.

(R4, tab 22 at 5 ¶ 11) 

15. By email dated January 22, 2018, Mr. Arlyn Marheine, P.E. COE, sent 

Mr. Hunter Boggs the following: 

Hunter,

The designer said that the 2′′ does not meet the design 

criteria but that the 3′′ might. If you wanted to submit that, 

then they could review it. Based on the side by side 

comparison that you provided though, it clearly shows that 

the Allowable Load on the 2′′ decking is less than on the 

2 1/2′′ decking as well as having a lower acoustical rating 

on the un-shored spans. I have asked for additional 
7

clarification on why the 2′′ deck doesn't meet the 

requirement, but as a variation request, it is really on 

Carothers to demonstrate that the alternate meets the 

requirements not the DOR to demonstrate that the alternate 

doesn’t. Let me know if you have any questions. Thanks

(App. supp. R4, tab 3 at 50) By email dated January 23, 2018, Mr. Hunter Boggs sent 

Mr. Arlyn Marheine, P.E. COE, and ACO Posey the following:

Arlyn,

Please find the attached calculations for the 2′′ versa deck. 

We just got off of the phone with New Millennium’s 

engineer and he stated that the 2′′ decking is more than 

capable of handling the specified loads on this project. 

Please have the DOR review and let’s have a conference

call with everyone to discuss after their review.

(App supp. R4, tab 3 at 49)

16. ACO Posey “urged” Carothers to submit the 2′′ acoustical roof deck Shop 

Drawings as a variation to the contract (R4, tab 22 at 5 ¶ 12). Carothers disagreed and 

in a February 28, 2018, email wrote, “This is not a variation. The deck we proposed 

meets the spec. This is a huge cost issue, and we are being forced into something that 

we do not have in the contract. I do not understand why you will not allow the 

professionals to talk.” (R4, tab 13 at 2) ACO Posey responded, “If the deck you are 

proposing is not 2.5′′, then it is a variation. The plans are very clear.” (R4, tab 13 at 1) 

On February 28, 2018, the COE Area Engineer, Mr. McLeod, got involved in this 

email exchange writing, “Our position is that we identified salient characteristics in the 

contract including deck thickness and expect them to meet all those requirements, and 

the only way we could except [sic] a change would be through a variation with a credit 

mod.” (Id.) 

17. During an owner’s meeting on February 2, 2018, Carothers and the 

government discussed this roof deck issue. At that meeting it was agreed that Carothers 

would get a third-party structural engineer to review the issue of whether the

Versa-Deck product should be accepted. (R4, tab 1 at 21-22; app. supp. R4, tab 3 at 5 

¶ 20).

8

 Carothers then engaged LBYD Engineers, and in particular, Mr. Brad Harrison, 

 8 The COE does not dispute the fact that the parties agreed that Carothers would hire a 

third-party structural engineer to evaluate Versa-Deck as an appropriate substitute

for the required 2 1/2′′ deck specified in the contract, but the COE insisted that 

the information be submitted as a variation. (COE reply br. at 12-13)
8

to conduct the structural engineering review (app. supp. R4, tab 3, at 5 ¶ 20, tab 2, at 2 

¶ 11). Mr. Harrison stated in his declaration, he has over 20 years structural design 

experience, including projects like this one and including roof systems like the one at 

issue here (app. supp. R4, tab 2 at 2 ¶ 10). Mr. Harrison was provided the same New 

Millennium Versa-Deck product data identified in the January 19, 2018, submission of 

RFI-0113 and the January 23, 2018 email with the manufacturer’s calculations (app.

supp. R4, tab 3 at 05 ¶ 20, tab 2 at 2 ¶ 12). 

18. By letter dated February 15, 2018, LBYD, Inc. (Mr. Harrison) reported that 

based on its review, the 2′′ Versa-Deck manufactured by New Millennium “meets or 

exceeds all of the span/load, and noise reduction requirements specified in the 

construction documents” and is an “acceptable substation [sic] for the specified deck 

in the design documents” (R4, tab 1 at 23). The record includes a declaration from 

Mr. Brad Harrison a licensed professional engineer who conducted the review for 

LBYD (app. supp. R4, tab 2 at 2). Mr. Harrison verified his calculations and 

confirmed that “the 2′′ Versa-Deck LS ES Acoustical roof system as manufactured by 

New Millennium should have been considered an equal to the roof system product 

identified in the Contract documents for the Project”9 (id. at 3-4 ¶¶ 13-15). On 

February 15, 2018, Carothers delivered that letter to the government (app. supp. R4, 

tab 2 at 3, 35, tab 2 at 3 ¶ 13, tab 3 at 5 ¶ 20; R4, tab 1 at 23). There is no evidence in 

the record that the government responded.

19. Carothers submitted a 2.5′′ deck for approval in combined transmittal 

053000-1.2/1.3 on March 12, 2018. The government returned the submittal to 

Carothers on March 29, 2018, with the remark “Approved as Noted” and Carothers 

then provided the 2 1/2′′ deck, as specified in the drawings. (R4, tab 22 at 7)

20. On May 16, 2018, Mr. Chad McLeod, US Army CESAM, emailed 

Mr. Kyle Rogers, US Army CESAM, with copy furnished to ACO Posey, the 

following: 

Kyle,

FYI, this will be coming your way. This is the situation 

where we unknowingly specified a material that apparently 

only one manufacturer could provide. See the e-mail 

below and the attached.

(R4, tab 17 at 1) 

 9 The COE agrees with Mr. Harrison’s credentials and does not dispute that this is 

Mr. Harrison’s “opinion” (COE reply br. at 14-17).
9

21. On April 12, 2019, Carothers filed a certified claim for $319,699.21 via 

email with the contracting officer. Carothers stated that this $319,699.21 amount 

constitutes the direct and indirect costs incurred as a result of the disagreement 

regarding the thickness of the deck. This figure includes the field office overhead and 

a total of 46 days of alleged compensable time to be added to the contract. (R4, tab 1

at 1)

22. On June 6, 2019, Carothers and the government agreed to Modification

No. 2W to the Contract (R4, tab 10 at 2). Modification No. 2W settles any issues or 

disputes related to time associated with any modifications issued prior to May 1, 2019.

23. On June 28, 2019, the Contracting Officer denied Carothers’ claim of 

$319,699.21 and stated the following:

The contract drawings plainly specified that a 2 1/2′′ deck 

was required. In your claim you argued that the proposed 

Millennium 2′′ deck met all of the specifications of the 

contract and was a suitable alternative for the contract 

indicated 2 1/2′′ deck. However, this was not the case. 

The 2′′ deck did not meet the specifications and contract 

requirements because it is a settled principle of contract 

law that the specifications and drawings are to be read 

together in concert. In this case, Section 05 30 00 “Steel 

Decks”, Paragraph 2.3.4 “Composite Deck” states 

“Fabricate deck used as the tension reinforcing in 

composite deck of the steel design thickness required by 

the design drawings.” (Tab H) The design drawings 

clearly indicate and state that the deck is to be 2 1/2′′. As a 

result, Carothers’ proposed 2′′ New Millennium deck did 

not meet the drawing and specification requirement. The 

Government was entitled to the benefit of the deck that it 

had specified in the contract and should not have to pay 

Carothers additional compensation for an item which was 

clearly outlined and required by the contract. 

(R4, tab 2 at 3-4)

24. On September 18, 2019, in light of Modification No. 2W resolving a large 

portion of the original claim amount, Carothers submitted a Request for Equitable 

Adjustment (REA) containing the same facts as its April 12, 2019, claim but in the 

amount of $69,580.11. The Contracting Officer, citing his original denial letter of 

June 28, 2019, denied this REA via email on September 19, 2019. (R4, tab 3)
10

25. Carothers filed this appeal (app. supp. R4, tab 3 at 6 ¶ 26). The Board 

docketed the appeal as ASBCA No. 62204

DECISION

Position of the Parties

Carothers contends that the AF’s specification requiring 2 1/2′′ thick roof deck 

was proprietary and that FAR 52.236-5, Material and Workmanship, entitled it to 

submit a 2′′ thick “Versa-Dek” roof deck product that was equal in all important 

performance requirements. The AF would not allow substitution and Carothers 

provided the 2 1/2′′ deck at additional cost which Carothers asks to be repaid. 

The AF contends that it is entitled to strict compliance with its specifications 

and that it advised Carothers to submit the 2′′ deck as a variation. Carothers refused to 

submit the variation. The AF maintains that it would only consider the 2′′ deck as a 

variation. It argues Carothers is not entitled to compensation for providing the 2 1/2′′

thick deck because it was specified in the solicitation. 

The 2 1/2′′ Deck Specification Was Not “Brand Name or Equal”

An argument not asserted in the briefs that we feel, for the sake of 

completeness, we should deal with. Late in the game, February 2018, the COE Area 

Engineer, Mr. McLeod, took the position, for the first time in the record, that the 

2 1/2′′ deck thickness was a “salient characteristic.” (Finding 16) “Salient 

characteristic” is a “term of art” in the government contracting world that is associated 

with brand name or equal specifications:

When the Government uses a brand name or equal 

specification, it must identify the salient characteristics of 

the brand name product and use those characteristics in 

evaluating the equivalency of proposed substitutes. See 

KEMRON Environmental Services Corp., ASBCA 

No. 51536, 00-1 BCA ¶ 30,664, 18 November 1999, slip 

op. at 7. “While the Government may reject a substitute if 

the salient characteristics are not met, . . . bidders should 

not have to guess at the essential qualities and the 

Government cannot reject an item that is functionally 

equivalent to the brand name product.” Id.

Southern Systems, Inc., ASBCA Nos. 43797, 43798, 00-1 BCA ¶ 30,762 at 151,924. 

Mr. McLeod’s 2018 characterization of the 2 1/2′′ deck thickness as a “salient 

characteristic” to justify denying equivalency and demanding that Carothers submit the 
11

2′′ deck as a “variation with a credit mod” raises the issue of brand or equal

(finding 16). It’s too late to rely on Brand Name or Equal and “salient characteristic” 

to deny Carothers’ claim because the brand name or equal specification and listing of 

salient characteristics was not included in the solicitation. There was no notice to 

bidders and no evidence of AF intent before award to identify the 2 1/2′′ as a brand 

name or equal product. 

Carothers’ Burden of Proof 

We discussed the elements of proof facing Carothers in Classic Site Solutions, 

Inc., ASBCA Nos. 58376, 58573, 14-1 BCA ¶ 35,647:

(1) the specifications are proprietary, (2) appellant 

submitted a substitute product along with sufficient 

information for the contracting officer to make an 

evaluation of the substitute, and (3) the proposed substitute 

meets the standard of quality represented by the 

specifications. North American, 96-2 BCA ¶ 28,496 

at 142,299; Blount Brothers Corp., ASBCA No. 31202, 

88-3 BCA ¶ 20,878 at 105,575.

Classic Site Solutions, 14-1 BCA ¶ 35,647 at 174,553.

The 2 1/2′′ Deck Specification was Proprietary 

Mr. Boggs, Carothers Senior Project Manager, testified that after investigation 

he found that only one vendor, Epic Metals, manufactured a 2 1/2′′ roof deck system 

(finding 5). When an item has only one source, it is the very definition of proprietary:

A specification is proprietary when it describes an item 

that can only be obtained from one source, even when a 

brand name is not expressly designated.10 See C&D 

Construction, Inc., 97-2 BCA ¶ 29,283 at 145,697; North 

American Construction Corp., 96-2 BCA at 142,298; W.M. 

Schlosser Company, Inc., ASBCA No. 44778, 96-2 BCA 

 10 We are aware that in C Construction Co., Inc., ASBCA No. 41706, 94-1 BCA 

¶ 26,263 we held that “The right of such substitution is limited by the [Material 

and Workmanship] clause to cases where a product is specified by trade name, 

make or catalog number” but we also held that a product could be “otherwise 

restricted to a single manufacturer's product.” Id. at 130,616. In view of 

Southern Systems, we distinguish C Construction interpreting “otherwise 

restricted” to allow sole source determinations absent markings. 
12

¶ 28,297 at 141,289; Central Mechanical, Inc., ASBCA 

Nos. 29360, 29514, 84-3 BCA ¶ 17,674 at 88,157. “When 

the evidence is that other manufacturers can meet the 

specification it, by definition, could not be proprietary or 

sole source.” J.R. Youngdale Construction Co., Inc., 

ASBCA No. 27793, 88-3 BCA ¶ 21,009 at 106,118.

Southern Systems, 00-1 BCA ¶ 30,762 at 151,923. 

When an appellant makes its case that a specification is proprietary, the burden 

shifts to the government to prove otherwise: 

We conclude that appellant made a prima facie showing 

that the tilt control requirement was proprietary. It was 

then incumbent on the Government to come forward with 

evidence showing that there was another source 

manufacturing tilt control mechanisms meeting the 

performance requirements of the contract. The 

Government has not met this burden. Accordingly, we 

find that the tilt control mechanism was proprietary and 

that appellant had a right to submit a substitute control 

system for evaluation.

North American Construction Corp., ASBCA No. 47941, 96-2 BCA ¶ 28,496

at 142,298-99.

Carothers has made a prima facie case that the 2 1/2′′ deck is proprietary. It is 

now incumbent on the AF to prove there is another source for the 2 1/2′′ deck. The AF 

provided no evidence to rebut Mr. Boggs’ conclusion and there is nothing in the record 

indicating that the AF even tried to locate a second source for the 2 1/2′′ roof deck or 

that challenged the quality of the 2′′ deck. Indeed, the evidence before us is that the 

COE, through Mr. McLeod, recognized that the roofing material was, in fact, 

proprietary (finding 20). The AF failed to meet its burden in this regard. We hold that 

the AF’s 2 1/2′′ specification was proprietary even though it was not marked as such.

Carothers Has a Right to Submit an Equal Substitute

Having found that the 2 1/2′′ deck product was proprietary, FAR 52.236-5, 

Material and Workmanship, allows Carothers to submit an equal substitute. The 

general rule of strict compliance with the contract specifications does not apply 

simultaneously with the Material and Workmanship clause – it is one or the other. We 
13

discussed FAR 52.236-5, Material and Workmanship in Classic Site Solutions, 

14-1 BCA ¶ 35,647:

Inclusion of the Material and Workmanship clause 

qualifies the general rule that, after award, the Government 

is entitled to strict compliance with every technical 

requirement of the contract’s specifications. The clause 

provides a contractor the right to submit a substitute 

product for a proprietary item called for in the contract’s 

specification absent a warning that only the proprietary 

item will be accepted. North American Construction 

Corp., ASBCA No. 47941, 96-2 BCA ¶ 28,496 at 142,298. 

Use of the word “shall” is not a sufficient warning. 

Minority Enterprises, Inc., ASBCA No. 45549 et al., 

95-1 BCA ¶ 27,461 at 136,827. Language such as, 

“NOTWITHSTANDING any other provision of the 

contract, no other product will be acceptable” is sufficient 

warning to preclude substitution. Maron Construction Co., 

ASBCA No. 53933, 05-1 BCA ¶ 32,904 at 163,026. The 

Government did not include such a warning in paragraph 

2.3 MIX DESIGN.

Classic Site Solutions, 14-1 BCA ¶ 35,647 at 174,552. The solicitation did not provide 

any warning to Carothers that the AF would not accept substitutions of equivalent 

products for the 2 1/2′′ deck. 

As can be seen from the material and workmanship clause (finding 3) and 

elements of proof quoted above, the determination of “equality” in performance and 

quality is assigned to the Contracting Officer but it has limits:

Since the determination of equality is expressly assigned 

by the Material and Workmanship clause to “the judgment 

of the contracting officer,” Gibbs must show that the 

contracting officer’s rejection of the proposed equal 

products was an unreasonable exercise of judgment. See

Trataros Construction Co., Inc., ASBCA No. 42845, 94-1 

BCA ¶ 26,592 at 132,322; Bruce-Andersen Company, Inc., 

ASBCA No. 29411, 88-3 BCA ¶ 21,135 at 106,714-715.

Gibbs Construction Company, ASBCA No. 44141, 95-1 BCA ¶ 27,368 at 136,370. 

Carothers must now prove that the AF’s refusal to consider the equivalency of the 2′′

deck was “an unreasonable exercise of judgment.”
14

Carothers Made a Prima Facie Case for Equivalency 

Carothers bears the burden of proof of equivalency: 

The contractor bears the burden of proving that its 

substitute is equal in quality and performance to the item 

specified in the contract. 

North American, 96-2 BCA ¶ 28,496 at 142,299 (citations omitted).

Evidence that the 2′′ deck product was equivalent to the 2 1/2′′ deck product 

was submitted five times to the AF to no avail. First, was on February 12, 2016, 

before the March 28, 2017, award of Task Order W91278-12-D-0037-0003,

(finding 8) when New Millennium Building Systems, manufacturer of the 2′′ deck, 

wrote to Zyscovich Architects, the AF’s Designer of Record (DOR), requesting 

approval to submit the substitute 2′′ deck. Attached to the letter was a side-by-side 

metal deck data comparisons. (Finding 4) Carothers’ bid the Contract based on using 

the New Millennium 2′′ Versa-Deck LS ES Acoustical roof system (finding 7). 

Mr. Boggs testified in his declaration that he reviewed documents submitted by 

Millennium demonstrating that the two decks were equivalent (finding 6). There is no 

evidence in the record of a response from Zyscovich Architects.11 We are not aware 

of any evidence that Carothers or the AF knew that there was only one producer of the 

2 1/2′′ deck before award.12 

The initial acoustical deck submittal was received by the AF on November 7, 

2017. The submittal contained technical and test information. (Finding 10) The 

submittal was forwarded to the EDC Contractor, Zyscovich, Inc., for review 

(finding 11). Zyscovich noted the fact that the specification required a 2 1/2′′ deck but 

that a 2′′ deck was submitted (finding 11). There is nothing in the record indicating 

Zyscovich investigated equivalency in response to this submittal. 

On or about January 3, 2018, Carothers submitted Request for Information 

(RFI) 0113 asking for approval of 2′′ Versa-Dek® LS ES Acoustical deck as a suitable 

alternative to the specified 2 1/2′′ Toris A (Epic Metals Corporation) called out on the 

structural drawings (finding 12). RFI 0113 included the side-by-side metal deck data 

 11 One problem may be that Mobile District (AL) awarded Task Order 

W91278-12-D-0037-0003 (finding 8) but the Norfolk District (VA) awarded 

and funded the EDC contract and was responsible to determine which Contract 

submittals and RFI’s would be reviewed by the EDC Contractor, Zyscovich

(finding 9). 12 We don’t believe it would make any difference in the outcome if that issue had been 

raised before award. 
15

product comparison for the 2 1/2′′ and 2′′ decks. Zyscovich responded to RFI 0113 

stating “[b]ased on the loads and spans, a 2′′ acoustical deck will not comply” 

(finding 13). ACO Posey testified in his Declaration about Zyscovich’s response 

stating that “[n]o structural analysis was provided by the EDC Contractor, and it is 

unclear if the RFI was reviewed by their Structural Engineer Subcontractor”

(finding 14). We will not fill in the blanks left by the AF and conclude that a 

structural engineer reviewed the technical data submitted in support of the 2′′ deck. 

On January 22, 2018, Mr. Arlyn Marheine AF PE sent Mr. Boggs the 

following, “the Allowable Load on the 2′′ decking is less than on the 2 1/2′′ decking as 

well as having a lower acoustical rating on the un-shored spans” (finding 15). This is 

the only place in the record where the AF made any technical comments but we have 

no idea what analysis went into these comments. On January 23, 2018, Mr. Boggs 

sent the AF calculations for the 2′′ versa deck indicating that New Millennium’s 

engineer stated that the 2′′ deck was equivalent to the 2 1/2′′ deck (id.). 

In a February 2, 2018, meeting Carothers and the AF agreed that Carothers 

would hire an independent third-party structural engineer to evaluate the equivalency 

of the 2′′ deck (finding 17). The engineer, Mr. Harrison, was provided the technical 

data and documentation submitted earlier by Millennium in RFI 0113 (finding 17). 

Mr. Harrison reported that his calculations confirmed that the 2′′ Versa-Deck LS ES 

Acoustical roof system as manufactured by New Millennium “should have been 

considered an equal to the roof system product identified in the Contract documents 

for the Project” (finding 18). Mr. Harrison’s findings were provided to the AF, but 

there is no indication in the record of a technical analysis or response by the AF (id.).

The AF’s position remained that the 2′′ deck did not comply with the specification and 

Carothers would have to submit its request as a variation with a credit modification

(findings 15-16). 

Apparently the AF gave no thought to FAR 52.236-5, Material and 

Workmanship. We hold that Carothers made a prima facie case that the 2′′ deck was 

equivalent to the 2 1/2′′ deck. 

The AF Failed to Rebut Carothers’ Proof

Applying a similar regulation to the present Material and Workmanship Clause, 

the Court of Claims held that contracting officers lack authority to deny substitute

products shown to be equivalent to a specified proprietary product:

The contracting officer does have to exercise judgment to 

determine whether the item proposed to be substituted is 

equal in quality and performance to the designated 

proprietary product, but his power does not extend to a 
16

refusal to allow a replacement which is equal in these 

respects.

Jack Stone Co. v. United States, 344 F.2d 370, 374 (1965).

Other than Mr. Arlyn Marheine’s cryptic comment (finding 15) submitted before 

Mr. Harrison’s report (finding 18), there is nothing from the AF indicating a serious 

consideration of Carothers’ evidence that the 2′′ deck was equivalent to the 2 1/2′′ deck 

specified in the solicitation. We see no evidence that an AF structural engineer ever 

evaluated the side-by-side presentation of product data submitted several times by 

Carothers or would even talk to Carothers about its evidence of equivalency (findings 4, 

13, 15). The AF seems to ignore the third party structural engineer, Mr. Harrison, that 

Carothers hired with the AF’s approval to evaluate equivalency of the 2′′ deck. 

Mr. Harrison concluded that the 2′′ deck was equivalent to the 2 1/2′′ deck. 

(Findings 17-18) Mr. Harrison’s report and testimony is overwhelmingly persuasive in 

the face of the AF’s insistence on strict compliance with the specification (findings 15-16, 

23). It may be that the AF could have proven either that there was another source for the 

2 1/2′′ deck or that the 2′′ deck was not equivalent if it had conducted a structural 

engineering analysis of Carothers’ evidence. Instead, the AF stuck with its position it 

would only consider the 2′′ deck as a variation. (Findings 15-16) We interpret the AF’s 

position to be one of strict compliance with the specifications. The AF seems to ignore 

the rights bestowed on contractors by FAR 52.236-5, Material and Workmanship. This 

attitude is clearly seen in the Contracting Officer’s June 28, 2019, denial of Carothers’ 

claim. (Finding 23) We hold that, in the absence of AF rebuttal based on engineering 

analysis of the data submitted to it, Carothers has met its burden of proof that the 2′′ deck 

was equivalent to the 2 1/2′′ deck. The burden then shifts to the AF. The AF has 

presented nothing. It failed to rebut Carothers’ proof and its reliance on strict compliance 

with the 2 1/2′′ thickness dimension is unpersuasive. Carothers has satisfied the three 

elements of proof quoted from Classic Site Solutions above. We hold that the AF’s 

insistence on the 2 1/2′′ deck without any serious effort to evaluate the data submitted by 

Carothers supporting the equality of the 2′′ deck was an “unreasonable exercise of 

judgment.” We hold that Carothers was entitled to substitute the 2′′ deck pursuant to 

FAR 52.236- 5, Material and Workmanship. Carothers is entitled to compensation for the 

additional costs associated with its installing the proprietary 2 1/2′′ deck. 
17

CONCLUSION

Based on the above we sustain the appeal. 

Dated: February 11, 2021

CRAIG S. CLARKE

Administrative Judge

Armed Services Board

of Contract Appeals

I concur

RICHARD SHACKLEFORD

Administrative Judge

Acting Chairman

Armed Services Board

of Contract Appeals

I concur

J. REID PROUTY

Administrative Judge

Vice Chairman

Armed Services Board

of Contract Appeals
18

I certify that the foregoing is a true copy of the Opinion and Decision of the 

Armed Services Board of Contract Appeals in ASBCA No. 62204, Appeal of Carothers 

Construction, Inc., rendered in conformance with the Board’s Charter.

Dated: February 11, 2021

PAULLA K. GATES-LEWIS

Recorder, Armed Services

Board of Contract Appeals