United States Court of Appeals for the Federal Circuit 

2009-1067 

STATES ROOFING CORPORATION, 

Appellant, 

v. 

Donald C. Winter, SECRETARY OF THE NAVY, 

Appellee. 

David W. Lannetti, Vandeventer Black LLP, of Norfolk, Virginia, argued for 

appellant. With him on the brief was Neil S. Lowenstein. 

Jane C. Dempsey, Trial Attorney, Commercial Litigation Branch, Civil Division, 

United States Department of Justice, of Washington, DC, argued for appellee. With her 

on the brief were Michael F. Hertz, Acting Assistant Attorney General, Jeanne E. 

Davidson, Director, and Mark A. Melnick, Assistant Director. 

Appealed from: Armed Services Board of Contract Appeals 

Judge Carol N. Park-Conroy
United States Court of Appeals for the Federal Circuit

 2009-1067 

STATES ROOFING CORPORATION, 

Appellant, 

 v. 

Donald C. Winter, SECRETARY OF THE NAVY, 

Appellee. 

Appeal from the Armed Services Board of Contract Appeals in No. 54854, 

Administrative Judge Carol N. Park-Conroy. 

___________________________ 

DECIDED: December 7, 2009 

___________________________ 

Before MICHEL, Chief Judge, NEWMAN and LOURIE, Circuit Judges. 

Opinion for the court filed by Circuit Judge NEWMAN. Dissenting opinion filed by 

Circuit Judge LOURIE. 

NEWMAN, Circuit Judge. 

States Roofing Corporation appeals the decision of the Armed Services Board of 

Contract Appeals (“the Board”), denying States Roofing’s claim for additional costs 

incurred in connection with its contract to perform roofing work at a Naval facility in 
Norfolk, Virginia.1

 The claim is brought in accordance with the Contract Disputes Act of 

1978, 41 U.S.C. §601 et seq., and turns on whether States Roofing reasonably 

interpreted certain aspects of the contract, such that the Navy’s divergent interpretation 

is appropriately viewed as a constructive change and warrants compensation. The 

Board allowed the claim as applied to work in some areas of the roof, and denied the 

claim as to the same work in other areas of the roof. States Roofing appeals the denial, 

and disputes the measure of the compensation awarded for the allowed portion of the 

claim. 

BACKGROUND 

States Roofing and the Navy entered into Contract No. N62470-97-C-8319 for 

“Building W-143 Roof Replacement, Wall Repair & Painting,” at a fixed price of 

$2,370,000. Building W-143 is a large structure, and in the contract the roof is divided 

into eleven “cells,” labeled A through K. These cells include penthouses located on the 

main roof, and both the main roof itself and the penthouses have vertical elements 

called parapet walls. This appeal relates to the contract’s requirements for 

waterproofing of the parapet walls. 

Pursuant to Federal Acquisition Regulation (“FAR”) 52.236-3 (“Site Investigation 

and Conditions Affecting the Work”), States Roofing’s President, Hugh DeLauney, had 

inspected the roof of Building W-143 before bidding. Mr. DeLauney observed the 

roofing work that had previously been performed in cells A and B by a different 

contractor, RayCo Roofing. RayCo had used waterproofing paint on the parapet walls 

in these cells; States Roofing formulated its bid accordingly. The Board found that the 

 1

 Appeal of States Roofing Corp., ASBCA No. 54854, 08-02 BCA ¶33,912 

(“Board Opinion”). 

2009-1067 2
use of paint to waterproof parapet walls is not uncommon, and that States Roofing had 

used this method of waterproofing in other government contracts. The Board found that 

“[a]t the time of the bid, SRC intended to paint the parapet walls after cleaning them; it 

did not intend to apply any type of wall flashing to them.” Board Opinion at 9. 

After States Roofing had been awarded the contract and had begun work on the 

project, the Navy objected to the use of waterproofing paint on the parapet walls. Lt. 

Darren R. Hale, the Assistant Resident Officer in Charge of Construction, disagreed 

with States Roofing’s understanding of the contract, and required use of three-ply felt 

flashing material to waterproof the parapet walls. It was eventually agreed that States 

Roofing would apply a one-ply waterproofing flashing material having the brand name 

“DynaClad,” but only because the commercially available three-ply flashing material was 

found not suitable for this application and DynaClad was deemed a comparable 

substitute. States Roofing complied with the Navy’s instructions and applied the 

DynaClad to the parapet walls, and requested an equitable adjustment for the additional 

cost of using DynaClad flashing material instead of paint on the parapet walls. The 

Navy’s contracting officer held that the use of DynaClad was a no-cost change, 

reasoning that the contract required three-ply flashing material, not paint. 

The roofing work continued to completion. States Roofing’s accountant 

performed an audit, including all adjustments and settled claims, and concluded that the 

company had incurred costs totaling $3,329,317.51 in performing the contract, 

excluding profit. The government’s corresponding audit concluded that total costs of 

$3,336,636 were incurred, excluding profit. States Roofing was paid a total of 

$2,934,346.07, placing it in an overall loss position. 

2009-1067 3
On appeal to the Board, States Roofing argued that it had reasonably interpreted 

the contract as permitting use of waterproofing paint for the parapet walls, and that if the 

contract were unclear or ambiguous, reasonable doubt should be resolved in favor of 

the contractor under the rules of interpretation of federal procurement contracts. The 

Board found that for the parapet walls of the penthouses of roof cells A and B, only 

waterproofing paint was required, but that for parapet walls in cells C through J, threeply flashing material was required. The Board found that States Roofing erroneously 

assumed that the acceptability of paint for cells A and B also applied to cells C through 

J, and that States Roofing failed to take account of certain detail appearing on drawing 

A38, which was one of the 48 sheets of drawings included with the contract. The Board 

found that there was “no specification for the parapet wall waterproofing membrane,” for 

the Navy stated that it had “inadvertently” omitted this specification. Board Opinion at 7. 

However, the Board held that drawing A38 provided sufficient indication that felt flashing 

material was required on the parapet walls, to render States Roofing’s interpretation 

“not within the zone of reasonableness.” Id. at 20. 

The Board also stated, as an alternative ground for denying relief for the roof 

cells other than cells A and B, that “[a]t a minimum, there was a patent ambiguity in the 

specifications and drawings arising out of the references to ‘coats,’ ‘layers’ and ‘plies’ 

about which [States Roofing] was obligated to inquire.” Id.

DISCUSSION 

Contract interpretation under the Contract Disputes Act is a question of law, 

requiring plenary determination on appeal to this court, with “no deference owing to the 

interpretation adopted by either the agency or the Board.” Lockheed Martin IR Imaging 

2009-1067 4
Systems, Inc. v. West, 108 F.3d 319, 322 (Fed. Cir. 1997); see 41 U.S.C. §609(b) (“the 

decision of the agency board on any question of law shall not be final or conclusive”); 

Textron Def. Systems v. Widnall, 143 F.3d 1465, 1468 (Fed. Cir. 1998) (“Contract 

interpretation is a question of law over which we exercise complete and independent 

review.”). In addition, “[c]onstruction of the language of the contract to determine 

whether there is an ambiguity is a question of law which we review without deference.” 

Gardiner, Kamya & Assocs., P.C. v. Jackson, 467 F.3d 1348, 1353 (Fed. Cir. 2006). 

“[W]hether ambiguities are latent or patent and whether the contractor’s interpretation 

thereof is reasonable are also questions of law subject to de novo review.” Interwest 

Constr. v. Brown, 29 F.3d 611, 614 (Fed. Cir. 1994). However, the Board’s factual 

findings “shall be final and conclusive and shall not be set aside unless the decision is 

fraudulent, or arbitrary, or capricious, or so grossly erroneous as to necessarily imply 

bad faith, or if such decision is not supported by substantial evidence.” 41 U.S.C. 

§609(b). 

I 

A 

States Roofing argues that its interpretation of the contract as permitting use of 

waterproofing paint on the parapet walls of all roof cells was reasonable in light of the 

contract documents and the circumstances surrounding its bid. States Roofing states 

that when a contractor relies in its bid on a reasonable interpretation of the contract 

documents and specifications, any change based on a different interpretation by the 

government is not chargeable to the contractor, as explained in WPC Enterprises, Inc. 

v. United States, 323 F.2d 874, 877–78 (Ct. Cl. 1963) (citations omitted): 

2009-1067 5
[I]f some substantive provision of a government-drawn contract is fairly 

susceptible of a certain construction and the contractor actually and 

reasonably so construes it, in the course of bidding or performance, that is 

the interpretation which will be adopted, unless the parties’ intention is 

otherwise affirmatively revealed. This rule is fair both to the drafters and 

to those who are required to accept or reject the contract as proffered, 

without haggling. . . . If the [government] chafes under the continued 

application of this check, it can obtain a looser rein by a more meticulous 

writing of its contracts and especially of the specifications. 

This rule of contra proferentem continues to apply, as illustrated in Lockheed 

Martin IR Imaging Systems, 108 F.3d at 322, where this court declined to impose a 

contract interpretation sought by the Army but to which the contractor never intended to 

agree. States Roofing points out that this principle has particular force where, as here, 

the Navy “inadvertently” omitted a specification that could have avoided 

misunderstanding. See Appeal of City Elec., Inc., ASBCA No. 24565, 82-2 BCA 

§16,057 (contractor’s interpretation was reasonable where it was “conceded by the 

Government that neither the contract specifications nor the contract drawings provide 

any details for constructing” the relevant feature). 

In determining whether States Roofing’s interpretation was reasonable, as to 

whether paint or flashing material was required for the parapet walls, we need not 

conclude that it was the only possible reasonable interpretation, or even the best one. 

See United Pac. Ins. Co. v. United States, 497 F.2d 1402, 1407 (Ct. Cl. 1974) (“[I]t is 

well established that if a drawing or specification is ambiguous and the contractor 

follows an interpretation that is reasonable, this interpretation will prevail over one 

advanced by the Government, even though the Government’s interpretation may be a 

more reasonable one, since the Government drafted the contract.”); City Elec., ASBCA 

No. 24565, 82-2 BCA §16,057 (“A contractor’s reasonable interpretation need not be 

2009-1067 6
the best interpretation. It need only be within the zone of reasonableness.”). Thus 

States Roofing states that the Board erred in ruling that States Roofing’s understanding 

of the contract’s requirement for waterproofing the parapet walls was “not within the 

zone of reasonableness.” 

States Roofing argues that it was reasonable to interpret the provision for 

waterproofing the parapet walls in cells C through J in the same way as for cells A and 

B, for which the Board agrees that only paint was required. States Roofing argues that 

contract drawing A38, on which the Navy relies, does not clearly indicate the use of 

flashing material rather than paint for this area, and does not fill the gap left by the 

Navy’s admitted failure to provide a specification for this material, as would have 

clarified this aspect of the proposal. States Roofing states that the reasonableness of 

its understanding is reinforced by Mr. DeLauney’s pre-bid site inspection which showed 

that paint had previously been used to waterproof the parapet walls in roof cells A and 

B, and in light of States Roofing’s acknowledged use of waterproofing paint for the 

same kind of roofing structures in other government contracts, and which practice the 

Board found was “not uncommon in the industry.” Board Opinion at 10. 

As summarized by the Board, States Roofing “read the contract documents as 

requiring it to paint the parapet walls, pointing specifically to Demolition Note 23 on 

Sheet A2, contract specifications from Section 09900, New Work Notes 28 and 61 on 

sheet A2, and General Work Notes 12 and 18 on sheet A3 (R4, tab 25).” Id. As found 

by the Board, Demolition Note 23 on drawing A2 required removal of existing flashing or 

other surfacing from the “inside face and top of parapet wall,” and stated “repair wall as 

required.” Id. at 7. Contract Specification 09900, which related to “Paints and 

2009-1067 7
Coatings,” specified that it applied to “existing coated surfaces made bare by cleaning 

operations,” and that “three coats of paint (primer, intermediate, and topcoat)” were to 

be applied. Id. New Work Note 28 on drawing A2 required repainting of existing 

painted concrete and brick, while New Work Note 61 provided: “Back side of parapet 

wall – paint down to surface applied counter flashing.” Id. at 8. The Board found that 

the “‘back side’ of the parapet wall means its interior side.” Id. The Board found that 

General Work Notes 12 and 18 on drawing A3 “described work similar to New Work 

Notes 28 and 29” on drawing A2, and that “General Work Note 18 explicitly refers to the 

parapets.” Id. States Roofing also read General Note 2 on drawing A8, which referred 

to these notes on drawings A2 and A3 and designated the work as “typical,” with the 

word “typical” indicating that the combined details of these drawings and notes would 

not be repeated in the other drawings. Id. at 13. 

States Roofing states that these provisions of the contract and drawings, read 

together, support its position that it was reasonable to read the contract as requiring the 

use of paint on the parapet walls. However, the Board found that States Roofing’s 

“interpretation does not fully consider the other drawings, in particular Sheet A38.” Id. at 

19. Sheet A38 is titled “Typical Flashing Detail @ Roof Drains & Parapet Walls” and 

contains New Work Note 2, which calls for a “Waterproofing Membrane (3 Layers)” to 

be applied to the parapet walls in cells C through J. States Roofing argued that, in light 

of the various provisions specifying the use of paint in connection with parapet walls, it 

reasonably understood the reference to “3 Layers” as requiring three layers of paint. Id.

at 13. The Board held that this work note, combined with the drawing itself, adequately 

specified that three-ply flashing material was intended as the “waterproofing membrane 

2009-1067 8
3-Layers,” and gave no weight to States Roofing’s assorted evidence of the 

reasonableness of its interpretation. 

States Roofing asserts that the Board unlawfully resolved against the contractor, 

what is at most unclear, citing the Navy’s admitted failure to include the specification 

that would have avoided uncertainty. States Roofing argues that, even apart from the 

missing specification, if the Navy had intended to require three-ply flashing material, 

rather than paint, to be applied to the parapet walls, it could easily have used clearer 

words to state this intention on drawing A38, as indeed it had done elsewhere in the 

contract. For instance, other Work Notes on drawings A37 and A38, referring to areas 

other than the parapet walls, call for “Waterproofing Membranes (3-Ply)” and “MultiplePly Membrane Base Flashing.” Both States Roofing and the Navy understood these 

Work Notes as requiring plies of flashing material. States Roofing refers to the canon of 

statutory interpretation whereby different terms are presumed to have different 

meanings, see, e.g., United States v. Maria, 186 F.3d 65, 71 (2d Cir. 1999) (“As a 

general matter, the use of different words within the same statutory context strongly 

suggests that different meanings were intended.”), and argues that the same 

presumption reasonably applies in contract interpretation. Thus States Roofing argues 

that it was reasonable for it to understand “3 Layers” on drawing A38 to refer to three 

layers of paint, as distinguished from the “multiple-ply flashing material” that was 

expressly specified elsewhere on the same drawing and throughout the contract for 

other areas of the roof. 

The Board offered no explanation for the contract’s use of these different terms if 

the same three-ply flashing material were intended and required to be used to 

2009-1067 9
waterproof the parapet walls, and acknowledged a potential ambiguity “arising out of the 

references to ‘coats,’ ‘layers’ and ‘plies.’” Board Opinion at 20. Nor has the Navy, in its 

brief, provided any explanation for this inconsistent terminology. The Navy merely 

argues that it used “layers” and “plies” “interchangeably,” and thus that the presumption 

that different words have different meanings holds no sway. The Navy also argues that 

the contract elsewhere uses “coats” or “coatings” when referring to paint, and offers the 

theory that “layers” is more like “plies” than it is like “coats.” 

The Navy argues that the drawing of sheet A38, which shows three thin, narrowly 

spaced, parallel black lines along the parapet walls, shows that a three-ply flashing 

material, rather than three layers of paint, was specified. The Board did not find the 

drawing to be as clear as the Navy proposes. The Board found that “Sheet A38 does 

not specify any required thickness for the waterproofing layers,” id. at 8, and rejected 

the testimony by the Navy’s roofing witness, Mark deOgburn, who stated that the three 

narrowly spaced lines show layers of felt material that “were supposed to be 1/2-inch 

thick,” id. at 19. This Board finding is consistent with States Roofing’s position that this 

detail was inadequate to specify that flashing material was required for the parapet 

walls. 

The Navy also argues that drawing A38 shows the use of fasteners, and that 

fasteners are consistent with the use of flashing material rather than paint. States 

Roofing responds that the placement of these fasteners shows that their purpose is to 

attach sheet metal coping to the sides of the parapet wall and to attach the base 

flashing used for the roof to the bottom of the parapet walls. Drawing A38 shows 

fasteners only where other roofing features overlap with the waterproofing membrane; 

2009-1067 10
no fasteners are shown along the portion of the parapet wall covered only by the three 

lines that the Navy says is three-ply flashing material, although not so designated. We 

agree that this argument about fasteners does not support the government’s position 

that the three lines in the A38 drawing are consistent only with three-ply flashing 

material. 

The Navy also argues that States Roofing’s interpretation would render drawing 

A38 superfluous. In response, States Roofing points to several aspects of drawing A38 

that relate to other contract requirements, unrelated to the waterproofing of the parapet 

walls. States Roofing is correct that these aspects of drawing A38 negate the 

suggestion that States Roofing’s interpretation would render this drawing superfluous. 

The Board’s opinion contains other indications of the Board’s concern with the 

contract, for the Board observed that “[t]he individual who drafted the contract drawings 

did not testify at the hearing.” The Navy witnesses were the architect who had worked 

on the project, David Greenfield, and a subject matter expert in roofing, Mr. deOgburn. 

The Board observed that these two witnesses did not agree, for Mr. Greenfield read the 

contract as “indicating that all of the penthouse parapet walls were to be cleaned and 

painted,” Board Opinion at 18 (emphasis by Board), while Mr. deOgburn opined that the 

parapet walls of cells C though J were to be covered with three-ply flashing material. 

The Board observed that the Navy “disavow[ed]” Mr. Greenfield’s testimony and favored 

Mr. deOgburn’s testimony. Id. On this appeal the Navy presses the contract 

interpretation of a roofer who apparently had no connection to the project, over that of 

the architect the Navy had hired to work on the project. The Board found that Mr. 

Greenfield had not only reviewed and revised the contract drawings and prepared the 

2009-1067 11
government’s estimate, but actually added detail to drawing A38 in an attempt to clarify 

it. The discord between the Navy’s witnesses does not strengthen the Navy’s position 

that drawing A38 was clear and States Roofing’s interpretation unreasonable. 

We conclude that States Roofing’s interpretation was within the zone of 

reasonableness, in view of all of the evidence and circumstances including the prior use 

of waterproofing paint on parapet walls of the same roof, the Board’s agreement that 

waterproofing paint was required for some parapet walls, the consistent use of “ply” and 

other more precise terms wherever flashing material was specified, the Navy’s admitted 

omission of the relevant specification, the conflicting expert testimony, and with due 

attention to the rule of contra proferentem. The Board’s contrary ruling is reversed. 

B 

The Board made the alternative holding that any contract ambiguity was “patent,” 

arising “out of the references to ‘coats,’ ‘layers’ and ‘plies’ about which [States Roofing] 

was obligated to inquire.” Board Opinion at 20. 

A “patent ambiguity” is one that is “obvious, gross, glaring, so that plaintiff 

contractor had a duty to inquire about it at the start.” H&M Moving, Inc. v. United 

States, 499 F.2d 660, 671 (Ct. Cl. 1974). As explained in Grumman Data Systems 

Corp. v. Dalton, “a patent ambiguity does not exist where the ambiguity is neither 

glaring nor substantial nor patently obvious.” 88 F.3d 990, 997 (Fed. Cir. 1996) (internal 

quotation marks omitted). See generally WPC Enters., 323 F.2d at 877 (“Although the 

potential contractor may have some duty to inquire about a major patent discrepancy, or 

obvious omission, or a drastic conflict in provisions, he is not normally required (absent 

2009-1067 12
a clear warning in the contract) to seek clarification of any and all ambiguities, doubts, 

or possible differences in interpretation.”). 

States Roofing contends that the contract did not include a glaring conflict or 

omission. States Roofing states that it reasonably understood the different words 

“layers” and “plies” to have different meanings, citing its knowledge of the past use of 

paint as the waterproofing material for these parapet walls, and the fact that plies of 

flashing material were plainly specified in the contract where flashing was intended for 

use elsewhere on the roof. The Navy does not dispute that States Roofing genuinely 

understood the contract to require paint for waterproofing of the parapet walls in all roof 

cells, and that States Roofing relied on this understanding in its bid. 

We agree with States Roofing that any ambiguity in the contract was latent, 

rather than patent. As precedent explains, there must be a glaring conflict or obvious 

error in order to impose the consequences of misunderstanding on the contractor. See

HPI/GSA 3C, LLC v. Perry, 364 F.3d 1327, 1334 (Fed. Cir. 2004) (“Where an ambiguity 

is not sufficiently glaring to trigger the patent ambiguity exception, it is deemed latent 

and the general rule of contra proferentem applies.”); Blount Bros. Const. Co. v. United 

States, 346 F.2d 962, 973 (Ct. Cl. 1965) (“[Contractors] are not expected to exercise 

clairvoyance in spotting hidden ambiguities in the bid documents, and they are 

protected if they innocently construe in their own favor an ambiguity equally susceptible 

to another construction, for . . . the basic precept is that ambiguities in contracts drawn 

by the Government are construed against the drafter.”). We conclude that the 

waterproofing requirement for the parapet walls, as set forth in the contract, does not 

meet the criteria of a patent ambiguity. 

2009-1067 13
C 

We conclude that the requirement that flashing material be used on all of the 

parapet walls instead of waterproofing paint was a constructive change, for which 

compensation is appropriate. States Roofing is entitled to recover the additional costs 

incurred for the use of DynaClad as compared with paint on the roof parapet walls, 

including a reasonable profit on this work. We reverse that portion of the Board 

decision that denied this claim for the roof cells other than cells A and B, and remand for 

determination of quantum. 

II 

The Board granted an equitable adjustment to States Roofing for the additional 

costs incurred in connection with using DynaClad waterproofing material rather than 

paint for the parapet walls in roof cells A and B. The Board awarded the difference 

between States Roofing’s actual costs in using the DynaClad for these walls, and the 

estimated reasonable cost of painting these features as included in States Roofing’s 

bid. This cost estimate for painting work incorporated a profit component, and States 

Roofing takes issue with the subtraction of this profit component from the adjustment for 

roof cells A and B. States Roofing argues that deprivation of this profit component is 

unfair because it is in a loss position on the contract as a whole, citing several board 

decisions that considered the contractor’s overall loss position in evaluating equitable 

adjustments. See Appeal of CRF, ASBCA No. 17340, 76-1 BCA ¶11,857 (quoting 

Appeal of G.M. Co. Mfg. Inc., ASBCA No. 2883, 57-2 BCA ¶1505) (“On a losing contract 

the price adjustment should not add to the loss the contractor would have experienced if 

there had been no change order.”); Appeal of Banta Co., GPOBCA No. 3-91, 1993 WL 

2009-1067 14
526843 at n.38 (“Indeed, the ASBCA has held that it is improper for the Government to 

add profit to a deductive change because, on a losing contract, the price adjustment 

should not add to the loss the contractor would have experienced if there had been no 

change order.”). 

As the Navy points out, the decisions on which States Roofing relies arose in the 

context of “deductive” changes to the contract, in which the government required that 

the contractor perform less, rather than more, than the contract provided. In such 

circumstance, it may be appropriate to compensate for profit the contractor would have 

received as the contract was initially mutually agreed. Here, in contrast, the 

constructive change for cells A and B resulted in an increase in the total contract 

payment; that is, it was not a deductive change. 

The Navy advises that States Roofing received a profit component on the 

DynaClad installation, in a payment formula whereby States Roofing’s bid price for 

painting parapet walls in cells A and B, which included profit on that work, was replaced 

with the actual cost plus profit for the use of DynaClad. We agree that this was correct 

and equitable, and affirm the Board’s methodology for the quantum adjustment for cells 

A and B. 

CONCLUSION 

States Roofing’s interpretation of the contract as requiring waterproofing paint on 

the parapet walls was within the zone of reasonableness, and States Roofing is entitled 

to compensation for the additional costs incurred due to use of DynaClad instead of 

paint. We remand for determination of quantum. We affirm the Board’s methodology 

as described for roof cells A and B. 

2009-1067 15
2009-1067 16

Costs to States Roofing. 

REVERSED AND REMANDED; METHODOLOGY AFFIRMED
United States Court of Appeals for the Federal Circuit 

 

2009-1067 

STATES ROOFING CORPORATION, 

 Appellant, 

v. 

Donald C. Winter, 

SECRETARY OF THE NAVY, 

 

 Appellee. 

Appeal from the Armed Services Board of Contract Appeals in No. 54854, 

Administrative Judge Carol N. Park-Conroy. 

LOURIE, Circuit Judge, dissenting. 

 I agree with the majority that the contract in question is ambiguous, but I disagree 

that the ambiguity is latent. I find the contract to be patently ambiguous and thus States 

Roofing Corporation (“States Roofing”) should have inquired about the patent ambiguity. 

Because States Roofing failed to do so, it did not act as a reasonable contractor, and its 

interpretation of the contract cannot govern. Therefore, I respectfully dissent. 

 This dispute centers on the proper interpretation of the term “waterproofing 

membrane (3 layers)” for roof cells C through J. This term is used in a new work note of 

drawing A38, which is entitled “Typical Flashing Detail @ Roof Drains & Parapet Walls.” 

The essence of the parties’ disagreement is whether the contract required the threelayer waterproofing membrane to be made of flashing material, as the government 

argues, or whether waterproof paint was sufficient, as States Roofing contends. I do 
not pretend to know the correct answer, but the ambiguity of the drawings is abundantly 

clear. 

“A patent ambiguity is one that is glaring, substantial, or patently obvious.” 

Comtrol, Inc. v. United States, 294 F.3d 1357, 1365 (Fed. Cir. 2002) (citation omitted). 

“A patent ambiguity is present when the contract contains facially inconsistent 

provisions that would place a reasonable contractor on notice and prompt the contractor 

to rectify the inconsistency by inquiring of the appropriate parties.” Stratos Mobile 

Networks, USA, LLC v. United States, 213 F.3d 1375, 1381 (Fed. Cir. 2000). If a 

contract contains a patent ambiguity, “the rules of government contracting place the 

obligation of inquiry upon the contractor.” Lockheed Martin IR Imaging Sys., Inc. v. 

West, 108 F.3d 319, 322 (Fed. Cir. 1997). If the contractor fails to inquire about a 

patent ambiguity, this failure will preclude acceptance of its interpretation of the 

contract. Stratos Mobile, 213 F.3d at 1381. 

In this case, the government admits to having mistakenly omitted the 

specification for the three-layer waterproofing membrane. Without that specification, the 

word “layer” is unexplained in the contract, in contrast to “ply,” which was used in 

drawing A38 for the base flashing, or “coat,” which is used elsewhere in the contract for 

applications of paint. Despite States Roofing’s insistence that the new work notes on 

sheet A2, which describe painting the parapet walls, apply to the roof cells in question, 

those work notes are referenced in drawing A8, not drawing A38. Drawing A8 has a 

key in the bottom right corner that shades Roof Cells A and B only, evidencing that A8 

does not apply to Roof Cells C-J. In contrast, drawings A4-A7 shade Roof Cells C-J 

and reference drawing A38. “We must interpret [a contract] as a whole and ‘in a 

2009-1067 2
manner which gives reasonable meaning to all its parts and avoids conflict or 

surplusage of its provisions.’” United Int'l Investigative Serv. v. United States, 109 F.3d 

734, 737 (Fed. Cir. 1997) (citing Granite Const. Co. v. United States, 962 F.2d 998, 

1003 (Fed. Cir. 1992)). We must, then, look to drawing A38 and its new work notes to 

determine the meaning of “waterproofing membrane (3 layers)” for Roof Cells C-J. 

In drawing A38, the three-layer waterproofing membrane is depicted by three 

lines that run along the vertical parapet wall and continue over the top of the wall. The 

bottom of the three-layer waterproofing membrane overlaps with “multiple-ply 

membrane base flashing” that runs along the surface of the roof and reaches part-way 

up the parapet wall. At the intersection of the three-layer waterproofing membrane and 

the multiple-ply membrane base flashing are “fasteners,” indicated by dark shading 

between the membranes, that appear to lock the two membranes to each other. 

Drawing A38 also depicts “sheet metal coping” that caps the tops of the parapets. 

Fasteners also appear to connect the sheet metal coping with the three-layer 

waterproofing membrane. Drawing A38, therefore, seems to indicate that the threelayer waterproofing membrane has some substance to it, rather than being just paint. If 

the waterproofing membrane were just waterproofing paint, the fasteners between the 

base flashing and the waterproofing membrane would be superfluous, since one could 

simply paint three layers of waterproofing paint on top of the base flashing to obtain the 

same overlap portrayed in drawing A38 without any fasteners. However, drawing A38 

clearly uses the undefined term “layer” to describe the waterproofing membrane, in 

contrast to “ply,” which is used for the base flashing, which would indicate that the 

waterproofing membrane is not made up of flashing material. 

2009-1067 3
2009-1067 4

Thus, the contract contains a glaring ambiguity regarding the meaning of “layers.” 

A reasonable contractor would have inquired about the meaning of the term. States 

Roofing failed to do so. Because of this failure, we are precluded from adopting States 

Roofing’s interpretation of the contract. Thus, States Roofing was required to abide by 

the Navy’s interpretation and use three-ply flashing material as the waterproofing 

membrane on the parapet walls of Roof Cells C-J. 

Because I would hold the contract to be patently ambiguous, I would not reach 

the question whether States Roofing’s interpretation of the contract was reasonable. 

For the foregoing reasons, I respectfully dissent.