Civilian Board of Contract Appeals

Case no.: CBCA No. 7881
Date filed: September 21, 2026

The Civilian Board of Contract Appeals denied a contractor’s claim for defective specifications. The performance-based demolition specs left the construction method to the contractor. However, the contractor stated a valid claim for a differing site condition. It was unclear whether an undisclosed layer of insulating concrete required demolition.

The Department of Veterans Affairs awarded a contract to JV6 Contracting LLC to remove approximately 40,000 square feet of existing coal tar roof assembly on a building at the Hines Medical Center in Illinois. The contractor was required to repair any delaminated concrete in the roof deck and install a new roof assembly of hot rubberized asphalt roofing.

The contract specifications addressed demolition of the existing roof assembly, “down to the structural members.” The demolition was “general in nature.” It was the contractor’s responsibility to “determine by their means and methods the amount of necessary demolition in the performance of their contract.”

JV6 Contracting commenced demolition of the existing tar roof assembly and discovered a lightweight topping of insulating concrete over the concrete roof deck. Nothing in the contract documents indicated the presence of this layer. The insulating concrete was in poor condition and would have to be removed to meet the roofing supplier’s warranty requirements. Once the insulating concrete was removed, the roof drains would have to be lowered. JV6 asked the VA, “Please advise on how to proceed.”

The VA responded that it considered the topping of insulating concrete to be part of the existing roof assembly down to the concrete deck and refused to grant an equitable adjustment to the fixed contract price.

JV6 appealed to the board, claiming that the contract specifications were defective because they required demolition to the concrete deck without disclosing the topping of insulating concrete. The contractor also contended that the insulating concrete had been a Type 1 differing site condition, differing materially from the conditions represented in the contract documents. The VA moved for summary judgment, rejecting the appeal.

The board granted summary judgment in favor of the VA on the defective specification claim. The spec in this contract was clearly of a performance nature. It was up to the contractor to devise the construction method necessary to accomplish the contractual scope of work. The VA extended no implied warranty on the accuracy of this specification.

Quoting Stuyvesant Dredging Co. v. United States, 834 F.2d 1576 (Fed. Cir. 1987), the board said: “The implied warranty attaches only to design specifications detailing the actual method of performance. It does not accompany performance specifications that merely set forth an objective without specifying the method of obtaining the objective.”

The board denied the VA’s motion for summary judgment on the claim for a differing site condition. It was unclear whether the insulating concrete topping was part of the roof assembly or the roof deck: “If the latter, an argument can be made that a differing site condition does exist because the contract only required removal down to the deck, not removal of the deck itself. We cannot decide this factual issue on the current record.”

Each party relied on the National Roofing Contractors Association (NRCA) Roofing Manual to support its position on the characterization of the insulating concrete layer.

Contractors sometimes fail to appreciate the cost risk they assume when using performance-type specifications in a fixed-price contract.

Participants:
For JV6 Contracting: Casey J. McKinnon; Washington, D.C.
For the Department of Veterans Affairs: Laetitia Coleman; Arlington, Texas

Before: Board Judges Russell, Zischkau, and Sullivan

Opinion by: Board Judge Russell

Outcome: Summary judgment granted in favor of government on defective specification claim and denied on differing site condition claim

Source: Please click here to read the complete opinion.