Carothers Construction, Inc.

ARMED SERVICES BOARD OF CONTRACT APPEALS

Appeal of -- )
)
Carothers Construction, Inc. ) ASBCA No. 62204
)
Under Contract No. W91278-12-D-0037 )

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
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-002 3, 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 1 4, 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.

2
its deck product Versa-Dek 6 “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.

3
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″.

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 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.

5
 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

6
 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)

7
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).

8
 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)

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 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

10
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.

11
 ¶ 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

12
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.”

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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.

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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

15
 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.

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 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 I concur

RICHARD SHACKLEFORD J. REID PROUTY
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals of Contract Appeals

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 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

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