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Peach State Roofing, Inc. v. Kirlin Builders, LLC

United States District Court, M.D. Alabama, Southern Division

June 22, 2018

KIRLIN BUILDERS, LLC, formerly known as John J. Kirlin Special Projects, LLC, an BMH ENGINEERING, LLC. Defendants. KIRLIN BUILDERS, LLC, Counter Claimant,
PEACH STATE ROOFING, INC., Counter Defendant. KIRLIN BUILDERS, LLC, Third Party Plaintiff,
North America Specialty Ins. Co., Third Party Defendant.




         Plaintiff Peach State Roofing, Inc. (“Peach State” or “PSR”) filed this action on July 22, 2015, against defendants Kirlin Builders, LLC (“Kirlin”)[1] and BMH Engineering, LLC (“BMH”)[2] 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.[3] 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.

         The 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.[4]

         II. FINDINGS OF FACT[5]

         This is 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[6] 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.

         Furthermore, 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.[7] 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.

         A. Prime Contract between the Government and Kirlin

         On 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).[8] 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.

         On February 28, 2014, the Government amended its Scope of Work.[9] 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).

         Thus, 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.

         Proposals 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 7).

         On 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.”[10] (Id.). In addition, Kirlin's proposal was “incorporated” in the contract “and made a part of this task order.” (Id.)

         The Scope of Work as amended delineates the Task Order as “Roof Replacement” and describes the project as follows.

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).

         In addition, under the Prime Contract, Kirlin was obligated to develop a site survey and report, and was responsible for preparing “design documents.”[11]

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)

         The Scope of Work as amended specifies the insulation required by the contract.

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).

         The Prime Contract obligated Kirlin to provide to the Government the following work plan documents[12] 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.

         The 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 10).

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)

         Attachment 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).

         Pursuant 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, Section 3.3.3.

         Ensure that the following conditions exist prior to application of roofing materials:

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 installed.

(Id. at 12-13, Section 3.2) (emphasis added)

         Section 07 22 00 is a government construction standard that sets forth the requirements for insulation on roofs and decking on government buildings.[13] 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 square feet.

(Tr. Ex. 11 at 72).

         Finally, Kirlin also agreed to ensure that the PVC membrane was installed free from wrinkles and fishmouths.[14] (Id. at 13-14, Section 3.3.2, Section 3.3.3, Section 3.3.4).

         B. Subcontract between Kirlin and Peach State

         In 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 properly dispose.
Furnish and install 130, 500 sf of 3.5", R-20 (1 layer) polyiso insulation over sloped metal deck, mechanically fastened.
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).

         Peach 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.[15] (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 Subcontract:

• the 5 page contract document,
• all exhibits and and attachments to the Subcontract,
• agreement between the Owner and the General Contractor,
• Attachments A and B and
• a Davis Bacon Wage Determination.[16]


         The 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 insulation.[17]

         In 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 concrete.
All systems meet 120mph wind zone requirements per final work plan.[18]

(Id. at 10) (emphasis added)

         Division 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 below.

(Def's Tr. Ex. 3 at 26, Section (footnote added)

         This 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).

         Thus, 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.)

         Kirlin 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.]”[19] (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.)

         Finally, 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 the customer.

(Id. at 11) (emphasis added).

         And, 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.[20] (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 Agreement/Purchase Order.

(Id. at 29) (emphasis in the original)

         The 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).

         C. Kirlin's Work Plans

         To 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[21]; 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.

         The 35% 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 metal decking.

(Id. at 8; Def's Ex. 13 at 6).

         In the 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.[22] 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 requirements.

(Id. at 15) (emphasis added).

         Through 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).

         The 35% 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. . . .


         The 35% 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 71-72).

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 literature.

(Id. at 72).

         In only 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).

         Two 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).

         Finally, 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).

         The 65% 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 including insulation.

         D. Pre-construction Communications between Kirlin and Peach State

         On July 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 I-25-26, I-82).

         For 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.[23] On November 12, 2014, Larry Kelly, who works for Peach State, responded to an email[24] 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).

         Kirlin 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 review.” (Id.)

         Kelly 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.


         Peach 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.

         At some point, [25] 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.[26] (Tr. Ex. 11). Written on the documentation provided by Peach State to Kirlin are the following instructions:

• 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-
• Provide 80-mil Sure-Flex PVC
• 80-mils - Provide .096" Per 2.1.8 Sect. 07 54 19

(Tr. Ex. 11) (emphasis added)

         In 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.).

         Peach 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).

         Submittal 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).

         Specifically, the noted exceptions were the use of 80-mil PVC membrane[27] 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).

         Carlisle's 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 membrane.

(Tr. Trans. at I-37).

         Peach 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.

         Also, 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 ...

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