United States District Court, M.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE
Peach State Roofing, Inc. (“Peach State” or
“PSR”) filed this action on July 22, 2015,
against defendants Kirlin Builders, LLC
(“Kirlin”) and BMH Engineering, LLC
(“BMH”) alleging claims of anticipatory breach of
contract and breach of contract, wrongful termination,
promissory estoppel, quantum meruit, negligence, negligent
misrepresentation, respondeat superior, suppression, deceit,
nondisclosure and concealment of material
facts. Also before the court is Kirlin's
counterclaim alleging breach of contract, or in the
alternative, quantum meruit against Peach State and North
American Specialty Insurance Co., (“NAS”), Peach
State's bonding company.
court has jurisdiction over these claims pursuant to its
diversity jurisdiction and will apply Maryland law due to
choice of law provisions in the contract documents.
See 28 U.S.C. § 1332(a)(1). Pursuant to 28
U.S.C. § 636(c)(1) and M.D. Ala. LR 73.1, the parties
consented to the United States Magistrate Judge conducting
all proceedings in this case and ordering the entry of final
judgment. A bench trial was held in December 2016, and the
court now makes the following findings of fact and
conclusions of law.
FINDINGS OF FACT
a tale of two contracts. The United States Army Corps of
Engineers (“the Government”) awarded Kirlin the
Prime Contract to act as Prime Contractor on a roofing
project at Lyster Army Health Clinic, Fort Rucker, Alabama.
In conjunction with the Prime Contract with the
Government, Kirlin awarded Peach State Roofing a Subcontract
for it to act as the Roofing Subcontractor on the project.
Unfortunately, the Subcontract drafted by Kirlin is
inconsistent with some requirements under the Prime Contract.
For example, the Prime Contract called for a roof that met a
FMI -120 wind uplift requirement. The Subcontract called for
a roof that met a 120 mph wind zone requirement. The
distinction is significant because a wind uplift requirement
refers to uplift pressure and the forces underneath the roof
while a wind zone requirement refers to wind over the top of
the roof. (Tr. Trans. at I-205-06). The other significant
difference concerns insulation. The Prime Contract referenced
construction standard Section 07 22 00 which in part requires
installation two layers of insulation. As will be seen, the
Subcontract does not contain that requirement. The conflicts
caused by these fundamental differences as well as the manner
in which Kirlin administered the contract form the basis of
the disputes at issue in this case.
much of the difficulty in this case began with a lack of
precision in the terms used in the contracts. The contracts
are a labyrinth of attachments and references which would
confound even lovers of the impossible constructions art of
M.C Escher. Nonetheless, the court has painstakingly
reviewed the salient documents submitted by the parties, and
now attempts to set forth the facts in a coherent fashion. It
does so as much as possible in chronological order.
Prime Contract between the Government and Kirlin
January 27, 2014, the Government requested Kirlin and six
other companies to offer proposals to replace and repair the
roof at Lyster Army Health Clinic in Fort Rucker, Alabama.
(Tr. Ex. 1). The Government requested the companies to
submit a “Firm-Fixed Price (FFP) proposal for Design
and Repair/Renewal/Construction, as detailed in the enclosed
Scope of Work.” (Id. at 1). The
Government's Scope of Work constitutes the project
documents that describe the work to be completed in detail
and includes all the Government's specifications and
requirements for the project. Attached to the Request for
Proposal was a Scope of Work dated January 24, 2014, and
Attachments 2 and 1. (Id.) Proposals were due by
February 27, 2014. (Id.) The documents contain the
crucial project specifications related to the PVC membrane
roofing system and insulation for the wind uplifts and wind
zone requirements of the building.
February 28, 2014, the Government amended its Scope of
Work. Section 2.1.3 of the Scope of Work as
amended outlines the work to be performed under a contract
with the Government.
Repair/Construction Action: Remove all existing and install
new tapered roof insulation system to provide positive
drainage to roof drains and scuppers. Insulation shall
provide a minimum R=20 thermal resistance. On top of new
insulation, install a new single ply PVC membrane roof to
comply with requirements for a 20 year No. Dollar Limit
Warranty. New metal coping and re-flashing of scuppers will
be required. Extend existing plumbing vents to a minimum of
8" above finished roof surface. Provide new flashing
devices, compatible with PVC roofing system, at these and
other roof penetrations.
(Tr. Ex. 2 at 1).
the Scope of Work as amended required a minimum R-20 valued
thermal insulation under a PVC membrane roof but did not
explicitly require that the insulation be installed in two
layers. The Scope of Work as amended also does not reference
roofing construction standard Section 07 22 00.
for the contract were due to the Government by March 17,
2014. (Tr. Ex. 3). An extension was granted to allow
proposals to be submitted by March 20, 2014. (Id. at
April 24, 2014, the Government offered the Prime Contract for
the project to Kirlin at a price of $3, 436, 024.85. (Tr. Ex.
6). Kirlin accepted the Government's offer to contract as
the prime contractor on the roofing project on May 6, 2014.
The Prime Contract between the Government and Kirlin required
Kirlin to replace the roof at Fort Rucker Lyster Army Health
Clinic “in accordance with the attached scope of work
dated 24 January 2014.” (Id.). In addition,
Kirlin's proposal was “incorporated” in the
contract “and made a part of this task order.”
Scope of Work as amended delineates the Task Order as
“Roof Replacement” and describes the project as
2.1 Project Description: The objective of this Project is for
the Contractor to provide all labor, materials and equipment
necessary to repair by replacement the roofing system at
Lyster Army Health Clinic, Ft. Rucker, AL, in accordance with
all Federal, State, and Installation codes and laws, to
include preparation of a Type 3 Work Plan/design as discussed
below. The new roof shall be designed using a PVC membrane
(72 mil minimum) having the latest in energy efficient
systems with pathways to all roof mounted equipment in
compliance with regulations/standards, and meet the current
health and standard safety requirements. All work in
conjunction with this Task order will provide a complete and
functional roofing system.
(Id. at 3).
addition, under the Prime Contract, Kirlin was obligated to
develop a site survey and report, and was responsible for
preparing “design documents.”
Section 2.1.2. The contractor shall prepare design documents
to clearly describe their plan of work for completing the
requirements of this project. . . . The Contractor shall base
his design per the attached PVC Specifications (Attachment 1
& 2) Attachment 1 (2009 Specification) should be used as
an example of the existing quality standard for PVC roofs and
Attachment 2 (2013 Specification) should be finalized as a
part of the final work plan deliverable. The SOW
shall supersede any conflicts between both attached
specifications and Attachment 2 shall supersede any conflicts
in Attachment 1.
(Id. at 4) (emphasis added)
Scope of Work as amended specifies the insulation required by
Section 2.1.3. Insulation shall provide a minimum R=20
thermal resistance. On top of new insulation, install a new
single ply PVC membrane roof to comply with requirements for
a 20 year No. Dollar Limit Warranty.
(Id. at 6).
Prime Contract obligated Kirlin to provide to the Government
the following work plan documents as deliverables: 35% Work
Plan/Design Documents; 65% Work Plan/Design Documents; 100%
Work Plan/Design Documents - Unrevised; and 100% Work
Plan/Design Documents - Issued for Repair. (Id. at
7). In other words, Kirlin was responsible for creating and
providing these documents to the Government pursuant to its
contract with the Government.
Scope of Work as amended was not the only document to which
Kirlin was obligated to adhere. It was incumbent on Kirlin to
understand its responsibilities under the Prime Contract and
to ensure that its subcontractor, Peach State, provided a
roofing system that met Kirlin's obligations under Prime
Contract. Attachments 1 & 2, entitled PVC Roofing Spec,
include sections related to Roof Insulation. (Id. at
Insulation system and facer material shall be compatible with
membrane application specified and be approved and supplied
by the PVC membrane roof manufacturer [and as specified in
Section 07 22 00 ROOF AND DECK INSULATION].
(Att. 2 at 10, Section 2.1.9; Att. 1 at 10, Section 2.1.9)
2 requires the roof membrane manufacturer to accept the
“insulation and other products and accessories to be
provided by and warranted under the full system guarantee of
the roof membrane manufacturer.” (Id. at 10).
to its Prime Contract with the Government, Kirlin was
responsible for examining and verifying that the roof was
installed in compliance with the Scope of Work as amended.
See Id. at 12-14, Section 3.2, Section 3.3.2,
that the following conditions exist prior to application of
j. Insulation boards are installed smoothly and evenly, and
are not broken, cracked, or curled. There are no gaps in
insulation board joints exceeding 6 mm 1/4 inch in width.
Insulation is attached as specified in
Section 07 22 00 ROOF AND DECK INSULATION. Insulation is
being roofed over on the same day the insulation is
(Id. at 12-13, Section 3.2) (emphasis added)
07 22 00 is a government construction standard that sets
forth the requirements for insulation on roofs and decking on
government buildings. In addition to stating that
insulation should be applied in “two layers when total
required thickness of insulation exceed 1/2 inch, ”
Section 07 22 00 also describes quality control requirements,
surface preparation, requisite fastening patterns, and types
and thickness of insulation. (Tr. Ex. 11 at 69-75). Thus,
section 07 22 00 requires much more than just two layers of
insulation. Notably, the Prime Contract specifies that
insulation be “attached as specified in
Section 07 22 00.” (Id. at 12-13, Section
3.2). Section 07 22 00 requires the use of mechanical
penetrating fasteners that are
[f]ush-driven through flat round or hexagonal steel or
plastic plates. Steel plates shall be zinc-coated, flat round
not less than 1 3/8 inch diameter or hexagonal not less than
28 gage. Plastic plates shall be high-density, molded
thermoplastic with smooth top surface, reinforcing ribs and
not less than 3 inches in diameter. Fastener head shall
recess fully into the plastic plate after it is driven.
Plates shall be formed to prevent dishing. Do not use bell-or
cup-shaped plates. Fasteners shall conform to insulation
manufacturer's recommendations except that holding power,
when driven, shall be not less than 120 pounds each in steel
deck. Fasteners for steel or concrete decks shall conform to
FM APP GUIDE for Class I roof deck construction, and shall be
spaced to withstand an uplift pressure of 120 pounds per
(Tr. Ex. 11 at 72).
Kirlin also agreed to ensure that the PVC membrane was
installed free from wrinkles and fishmouths. (Id.
at 13-14, Section 3.3.2, Section 3.3.3, Section 3.3.4).
Subcontract between Kirlin and Peach State
conjunction with its submission of a proposal to the
Government, Kirlin solicited bids from roofing companies to
perform the work that would be required for the roofing
project at Fort Rucker if Kirlin received the Prime Contract.
Prior to submitting its formal proposal, Peach State engaged
in an email exchange with Kirlin discussing the
specifications of the roofing project. (Tr. Ex. 5). On March
18, 2014, Kirlin asked Peach State to confirm that it
understood “that [Kirlin] [is] obligated to the
Government's Scope of Work and it's (sic)
attachments.” (Id.) Kirlin advised Peach State
that specifications with the Scope of Work were “rarely
included” so Peach State needed to “read those
documents.” (Id.) After a further series of
emails, on March 27, 2014, Peach State submitted a proposal
to Kirlin to act as the roofing subcontractor to replace and
repair the roof at Fort Rucker. (Tr. Ex. 5 at 7). Peach
State's proposal included the following
• Remove existing roof system down to metal deck and
• Furnish and install 130, 500 sf of 3.5",
R-20 (1 layer) polyiso insulation over sloped metal deck,
• Furnish and install 90, 500 SF of 3.5",
R-20 (1 layer) polyiso insulation over sloped concrete
deck . . .
• Furnish and install 72mil PVC membrane, mechanically
attached and fully adhered over concrete.
* * *
(Id.) (emphasis added).
State proposed completing the work for $2, 107, 315.00 and
included a performance bond costing $32, 000.00.
(Id.) Although the Subcontract is dated May 19,
2014, Kirlin awarded Peach State the Subcontract for the
roofing replacement project on May 6, 2014. (Tr. Ex. 7 at
24). Peach State contracted to “[p]rovide and install
new roof work in strict accordance with the Contract
Documents.” (Id. at 2). The Subcontract then
specifically listed those documents included in the
• the 5 page contract document,
• all exhibits and and attachments to the Subcontract,
• agreement between the Owner and the General
• Attachments A and B and
• a Davis Bacon Wage Determination.
Subcontract between Peach State and Kirlin states that Peach
State would “furnish and install new R-20 minimum
polyiso insulation” (id. at 10) which
conformed to the Government's Scope of Work as amended.
The Scope of Work as amended references R-20 insulation but
does not specify one or two layers of
addition, Attachment A to the Subcontract defines “PSR
Scope of Work.”
• Furnish and install a complete new roofing system for
Lyster Army Health Clinic to include demolition. All work
will be conducted per work plan documents, Government scope
of work, and its Attachments 1 & 2. Perform all Roofing
work associated with the work plan documents, including, but
not limited to, Division 07 specifications.
* * *
• Furnish and install new R-20 minimum polyiso
insulation over metal deck, mechanically fastened
• Furnish and install new R-20 minimum polyiso
insulation over concrete deck, fully adhered with
low VOC, 2 part polyurethane adhesive.
• Furnish and install minimum 72mil PVC membrane,
mechanically attached over metal and fully adhered over
• All systems meet 120mph wind zone requirements
per final work plan.
(Id. at 10) (emphasis added)
07 specifications refer to Government building construction
standards that relate to Thermal and Moisture Protection and
include much more than just roof and deck insulation. (Tr.
Ex. 11 at 31; Def's Tr. Ex. 3 at 1-2). Included in
Division 07 is Section 07 22 00 but it differs from Section
07 22 00 contained in Kirlin's Work Plans. For example,
in Division 07, Section 07 22 00, “[r]oof insulation
should be specified by thermal resistance (R value) necessary
to obtain required overall thermal transmittance (U value)
need to satisfy design criteria for particular type of
facility.” (Def's Tr. Ex. 3 at 12, Section 2.1.1).
In addition, Division 07 discusses polyisocyanurate
insulation which was to be installed on the roof.
See Def's Tr. Ex. 11 at 15.
Where polyisocyanurate foam board insulation is provided,
install 13 mm 1/2 inch thick wood fiberboard, glass mat
gypsum, or 19 mm 3/4 inch thick expanded perlite board
insulation over top surface of foam board insulation. Stagger
joints of insulation with respect to foam board insulation
(Def's Tr. Ex. 3 at 26, Section 126.96.36.199) (footnote added)
section does not specify two layers of insulation. Attachment
A to Peach State's Subcontract with Kirlin required Peach
State to “[p]erform all Roofing work associated with
the work plan documents, including, but not limited to,
Division 07 specifications.” (Tr. Ex.
7at 10) (emphasis added).
to the extent that the Subcontract references insulation, it
provides that Peach State will “[f]urnish and install
new R-20 polyiso insulation” in accordance with
Division 07 specifications that meets the 120 mph wind zone
requirements for the building. (Id.)
places great reliance on the Subcontract's “Flow
Down” provision which obligated Peach State to Kirlin
“in the same way [Kirlin] is [obligated] to the
[Government.]” (Id. at 2). However, the Flow
Down provision includes an exception. “Except that this
Subcontract shall govern any inconsistent provision in the
Contract Documents.” (Id.)
the Subcontract contains the following provision.
Subcontractor recognizes the Design/Build nature of the
project and understands that the scope of work indicates the
main work to be accomplished and that all details and
specifics are NOT necessarily shown or
specified. Should additional architectural or engineering
work be required by the subcontractor to construct the
project that cost will be borne by the subcontractor.
No additional design documents will be furnished by
John J. Kirlin Special Projects, LLC. There will be
no change orders unless new areas and/or work are added by
(Id. at 11) (emphasis added).
Attachment A to the Subcontract further advised Peach State
that “[n]o Additional Design Documents will be
furnished, ” and “[t]here will be no change
orders unless new areas and/or work are added by the
customer.” (Id. at 11). Attachment B lists the
Contract Drawings and Specifications applicable to the
project. The Contract Drawing that is listed is Task Order
No. 0021 which is dated April 24, 2014 but that document is
not included or attached. (Id. at 20).
Attachment C to the Subcontract is a list of Government forms
and federal contracting clauses that are incorporated in the
Subcontract. (Id. at 28).
[C]lauses of the contract listed above are
incorporated by reference and are deemed to be inserted in
their entirety, and take precedence over all other terms and
conditions, and are included in the Subcontract
(Id. at 29) (emphasis in the original)
dispute clause upon which Kirlin relies in this case,
FAR52.233-1, is not listed as one of the federal contract
clauses that is incorporated in the Subcontract.
(Id. at 28-29).
Kirlin's Work Plans
fulfill its obligation to the Government under the Prime
Contract, Kirlin was required to create a 35% Work Plan, a
65% Work Plan and a 100% Work Plan. The 35% Work Plan was
dated July 2014 (Def's Ex. 11); the 65% Work Plan was
dated 6 October 2014 (Def's Ex. 13); the 100% Work Plan -
unrevised; and the 100% Work Plan - Issued for
Repair was dated 5 February 2015 (Def's Tr. Ex. 18). For
the purpose of the issues in this case, the relevant
provisions of the Work Plans are the same in all four plans.
Consequently, the court begins by describing in detail the
35% Work Plan because the other Work Plans were built upon
this foundational document.
Work Plan initially describes the roof replacement project as
“a fully-adhered, single-ply 72-mil minimum
PVC-membrane system with a 20-year No-Dollar Limit (NDL)
warranty and will meet FM I-120 wind uplift
criteria.” (Def's Tr. Ex. at 3) (emphasis
added). This wind uplift requirement is different from a 120
mph wind zone requirement. The 35% Work Plan describes the
insulation as follows.
Once the deck is ready for the new roof, the insulation will
be installed to provide a minimum insulating value of R-20 in
accordance with Table C402.2 of the International Energy
Conservation Code . . . . Roof insulation will be installed
with a fully-adhered process using a low-rise foam and
adhesive on the concrete deck, or mechanical fasteners on the
(Id. at 8; Def's Ex. 13 at 6).
35% Work Plan, Kirlin stated that “[n]ew rigid
insulation will be installed and inspected to conform to the
specified R value and wind uplift
criteria.” (Id. at 9) (emphasis
added). The 35% Work Plan created by Kirlin does not
explicitly require two layers of insulation. See
Id. at 4, 8, 9, and 15.
General notes on construction document 13. Roof insulation
shall be rigid poly-isocyanurate board with thickness as
required to achieve an average Rvalue of R-20.
Attachment shall conform to FM I-120. Refer
to specifications for additional material and installation
(Id. at 15) (emphasis added).
its Architect or Engineer, Kirlin had the responsibility and
obligation to review submittals to ensure that the submittals
complied with the Prime Contract.
When submittals are provided by a Subcontractor, the
Prime Contractor is to prepare, review and stamp with
Contractor's approval all submittals prior to submitting
for Government approval.
(Id. at 38) (emphasis added).
Work Plan gives the Government Contracting Officer the
authority to require Kirlin as the Prime Contractor to
“resubmit any item found not to comply with the
contract.” (Id. at 43).
This does not relieve the Contractor from the obligation to
furnish material conforming to the plans and specifications;
will not prevent the Contracting Officer from requiring
removal and replacement of nonconforming material
incorporated in the work plan. . . .
Work Plan also includes the Section 07 22 00 Roof and Deck
Insulation “to the extent referenced.”
(Id. at 69). The referenced specification relates to
“thermal insulation above the roof deck with an R value
of 20 and attach to structural deck to
conform with an FM I-120 wind uplift
rating.” (Id. at 70) (emphasis
added). It describes the insulation type as a board
“compatible with membrane application” and
outlines the requisite insulation thickness. (Id. at
As necessary to provide a thermal resistance (R value) of 20
for average thickness of tapered system. Thickness shall be
based on the “R” value for aged insulation.
Installation over steel decks shall satisfy both specified R
value and minimum thickness for width of rib opening
recommended in insulation manufacturer's published
(Id. at 72).
a single sentence on insulation application does Section 07
22 00 mention two layers of insulation. “Apply
insulation in two layers with staggered joints when
the total required thickness of insulation exceeds ½
inch.” (Id. at 73) (emphasis added).
provisions of the 35% Work Plan relate to Kirlin's
obligations to inspect and approve all work on the roof.
Kirlin was required to “establish and maintain an
inspection procedure to assure compliance of the installed
roof insulation with the contract requirements. Any work
found not to be in compliance with the contract shall be
promptly removed and replaced or corrected in an approved
manner.” (Id. at 74). The 35% Work Plan also
contemplated that during the roof replacement, Kirlin would
verify that the PVC membrane and insulation were properly
adhered, secured and free of “ridges, wrinkles, kinks,
and fishmouths.” (Id. at 93).
the 35% Work Plan specified that the roofing materials would
be provided by Carlisle Manufacturing. The 35% Work Plan
included Carlisle's Roof Product Data on its Roof
Membrane and System. (Id. at 141). The 35% Work Plan
referenced Carlisle Sure-Flex PVC 80-mil Membrane with
Carlisle Insulation included. (Id. at 142-44).
Carlisle's materials indicated that “[a]ll
equipment will be installed in accordance with
manufacturer's instructions and recommendations.”
(Id. at 152).
Work Plan included the Carlisle Product Information and again
stated that the roof would be “installed in accordance
with the manufacturer's installation instructions.”
(Def's Ex. 13 at 186). In response to the 65% Work Plan,
the Government requested that Peach State provide
“installer's certification from roof membrane
manufacturer.” (Id. at 193-95). Carlisle
submitted the requested certification to Kirlin which stated
that Peach State Roofing was “a Carlisle Authorized
Applicator.” (Id. at 197). On March 4, 2015,
Kirlin's 100% Work Plan was approved by the Government.
All the Work Plans included Carlisle's Product Data and
clearly contemplated that Peach State would install a
Carlisle Sure-Flex PVC 80-mil Membrane Roofing system
Pre-construction Communications between Kirlin and Peach
11, 2014, Kirlin sent an email to Peach State and Hughes, the
plumbing subcontractor, notifying them that “[t]he 35%
Work Plan for the 778021 Fort Rucker Roof Replacement work
project [was] online for review . . .” (Tr. Ex. 9).
However, nobody at Peach State reviewed the 35% Work Plan
because Peach State understood that the 35% Work Plan was a
document between Kirlin and the Government. (Tr. Trans. at
reasons that were not at all explained at trial, in November
2014, Kirlin and Peach State began an email discussion about
the use of Carlisle products. On November 12, 2014, Larry
Kelly, who works for Peach State, responded to an
email from Ryan Johnson, who worked for
Kirlin, which questioned the use of Carlisle's roofing
products. (Tr. Ex. 10 at 5). Johnson asked Kelly “how
did we end up with Carlisle product data?”
(Id.). Frankly, Kelly's response to Johnson is
baffling since Kelly worked for Peach State, and Peach State
recommended using Carlisle products. Kelly responded
“No idea!? We just want to run a smooth efficient
project for all of us.” (Id. at 4) Jeremy
Koczenasz, Kirlin's project manager, responded to Kelly
at Peach State with the following:
Carlisle was requested by Peach State early in the design
process. At the 35% Work Plan, a question on phasing was
asked by the facility and Peach State provided the attached
letter and detail. We also provided Carlisle details and
product data as that is whom Peach State requested to use.
The Work Plan had Carlisle product data in it so no submittal
is required as it is part of the design documents.
(Id. at 3).
also confirmed the use of Carlisle products. “Proceed
with Carlisle. Carlisle product data was approved within the
35% Work Plan that PSR was given an opportunity to
then sought confirmation that Peach State was permitted to
order “the Carlisle 3.5" polyisocyanurate R=20 and
the Carlisle 72 mil or greater PVC.” (Id.)
Kirlin replied that it was Peach State's decision as to
when it ordered the material but went on to say
[c]oncerning the material to be used, if it is in the 35%
Work Plan, it is approved to be ordered. Any materials such
as insulation that were not in the work plan will need to be
submitted for review and approval before they are ordered.
State also asked for the credentials to log in and view the
35% Work Plan which Kirlin provided. (Id. at 2). On
November 14, 2014, Kirlin forwarded to Peach State the 65%
Work Plan. (Id. at 1). Peach State's project
manager James Grant did not review the 65% Work Plan because
he was relying on Kirlin's representation that the
Carlisle product had been approved in the 35% Work Plan. (Tr.
Trans. at I-28-29). In other words, the email exchanges set
out above related only to the use of Carlisle products and no
other aspects of the Work Plans.
point,  Peach State submitted a proposal to
Kirlin and its engineering firm, BMH Engineering, to use
Carlisle Sure-FlexTM Flashing, insulation and
other materials. (Id. at I-29). On December 12,
2014, Kirlin rejected Peach State's submittal because it
did not conform to the requirements of the
contract. (Tr. Ex. 11). Written on the
documentation provided by Peach State to Kirlin are the
• Provide Intent to Warrant Letter w/20 Yr NDL
• Provide FM Approved Fastening Pattern conforming with
120 MPH Wind Zone
• Provide Proof of Conformance with FM 4470 Per Spec
Section 07 54 19-188.8.131.52
• Provide 80-mil Sure-Flex PVC
• 80-mils - Provide .096" Per 2.1.8 Sect. 07 54 19
(Tr. Ex. 11) (emphasis added)
addition, the documentation contained a page describing
Carlisle's HP-H Polyiso Insulation. (Id. at 13).
To achieve the R-20 thermal value, the requisite thickness of
the insulation is 3.50" and is circled in red.
(Id.) Carlisle's product data plainly
demonstrates that Peach State was proposing a single
3.5" layer insulation. (Id.).
State amended its submittal, and on February 18, 2015, BMH
Engineering on behalf of Kirlin, stamped its approval on
Peach State's submittal. (Tr. Ex. 12 at 3).
No. 778021 has been reviewed by BMH Engineering, LLC.
 Conformed exceptions noted
“to the Standards required by the Work Plan. The
Subcontractor is responsible to coordinate work with other
trades and ensure adequate quantity(s) to meet the functional
intent of the Facility Work Plan”
(Tr. Ex. 12 at 3) (emphasis added).
the noted exceptions were the use of 80-mil PVC
membrane and 3.50 HP-H Polyiso thermal value
insulation. (Id. at 3 & 28). Peach State also
provided a warranty letter from Carlisle and a fastening
pattern as requested by BMH. (Id. at 4 & 5-9).
In Carslisle's letter, which is included in the submittal
that was approved by BMH, Carlisle addressed the uplift and
wind zone requirements.
Additionally, the proposed systems achieve an FM I-90
uplift rating meeting IBC/ASCE 7 design
requirements. The uplift rating meets the design requirements
based on a 50' tall building located in an ACSE 7
120mph wind zone.
(Id. at 4) (emphasis added).
letter also reiterates that Peach State would install
“a 3.5" thick Carlisle HP-H Polyisocyanurate
Insulation mechanically fastened” and “adhered to
the deck.” (Id.) On February 18, 2015, Kirlin
emailed to the Government Peach State's approved
submission with exceptions noted. (Id. at 1).
Consequently, based on the approval from BMH Engineering on
behalf of Kirlin, Peach State was prepared to
[i]nstall 3.5-inch-thick Carlisle insulation mechanically
fastened to the steel deck. Eight fasteners in the field, 20
fasteners in the perimeter - at the perimeter, and 32 in the
corners for the steel deck area.
And then it specifies, for the three-and-a-half-inch
insulation, the bead spacing for the two-part polyurethane
adhesive that's used to adhere it to the concrete deck.
And then all of this is going to be covered by an 80-mil
(Tr. Trans. at I-37).
State's proposal to Kirlin to secure the Subcontract and
its' submittals for approval to Kirlin and BMH
Engineering all contemplated a single layer of 3.5 inch
insulation suitable to meet the 120 mph wind zone
requirement. Kirlin approved Peach State's second
submittal noting that it “conforms with exceptions
noted.” (Tr. Ex. 12). Unquestionably, Peach State's
proposal, Subcontract and submittal are inconsistent with the
Government's requirements and Kirlin's work plans.
For example, Kirlin's work plans called for R-20 value
insulation with “attachment of the
roof conforming to a FM I-120 wind
uplift” while Peach State's Scope
of Work as defined by the Subcontract required Peach State to
“[f]urnish and install new R-20 minimum polyiso
insulation” and the roof must
“meet 120mph wind zone
requirements.” (Compare Def's Ex. 13 at 70
to Tr. Ex. 5 at 10)(emphasis added). Nonetheless,
BMH approved Peach State's submittal to replace the roof
with R-20 polyiso insulation that meets a FM I-90 wind uplift
rating for a building in a 120 mph wind zone requirement.
BMH's approval of Peach State's submittal should have
put Kirlin on notice that Peach State's proposal and
submittal, coupled with the Subcontract, differed from
Kirlin's obligations to the Government under the Prime
Contract. It is obvious that at this time, Kirlin did not
recognize, understand or appreciate the differences. After
Kirlin forwarded Peach State's submittal to the
Government representative, there is no evidence in the record
that the Government had any concerns or questions about the
insulation or the uplift or wind zone requirements.
on February 18, 2015, Kirlin forwarded to Peach State by
email roof drawings and government construction standards.
Kirlin's email to Peach State in its entirety read:
“Please see attached.” (Tr. Ex. 14). Jim Grant,
Peach State's project manager, testified that he received
these documents from Kirlin because he had previously not
received any “official roof drawings.” (Tr.
Trans. at I-41). However, when Grant looked at the documents
to find the roofing drawings none were included in the
attachment to the email. (Id. at I-42).
At trial, Kirlin suggested that this document was the 100%
Work Plan. (Tr. Trans. at II-13-14). But as evidenced below
by the court's colloquy with Attorney Patin, following
his examination of a witness, the attachments to the email
would not have notified any reasonable person that the
attachments contained the 100% Work Plan.
Q: And Defendant's Ex. 17 contains an email from Jeffrey
Rhodes to Jim Grant forwarding the 100 percent work plan. Do
you recall that now?
A: You're referencing a 100 work plan, but nowhere does
that state that this is a 100 percent work plan.
Q: Well, do you recall testifying in your deposition that in
your deposition that what Mr. Rhodes forwarded to Mr. Grant
was the same thing that was forwarded to you by Mr. Brock in
May of -- June of 2015?
A. What Jim [sic] Brock -- what he forwarded to me at the
later date was specified as a cover page that it was a 100
percent work plan. All this states here is it's
construction standards. It never states anywhere in here that
it's a 100 percent work plan.
Q. Did you ever look at what was sent to Mr. Rhodes?
A. No, I did not.
Q. Were you aware of Mr. Rhodes being sent this?
A. No, I was not.
Q. The first time you were aware of this email was the day
before your ...