John T. Jones Construction Co. v. Hoot General Construction (543 F. Supp. 2d 982, 2008)

FINDINGS OF FACT, CONCLUSIONS OF LAW, RULING ON MOTIONS FOR JUDGMENT AS A MATTER OF LAW AND ORDER FOR JUDGMENT

ROSS A. WALTERS, United States Magistrate Judge.

Plaintiff John T. Jones Construction Co. (“Jones”) was the general contractor for a public improvement project at defendant Des Moines Metropolitan Wastewater Reclamation Authority’s (“WRA”) Wastewater Reclamation Facility (“WRF”). The project was the “WRF Combined Hauled Waste/Solids Processing Improvements”(“the project” or the “WRA project”). (Ex. 48 at 4). The project included a lining system to protect the concrete in “blended sludge wetwells, a new waste-to-digester” wetwell and septage tanks which were to be rehabilitated to serve as “special waste receiving tanks.” This lawsuit is about which of two competing lining systems should have been installed. It involves claims, counterclaims and cross-claims between Jones, WRA, Black & Veatch (“B&V”), an international construction and engineering firm hired by the City of Des Moines to provide engineering services for the design, bidding and construction of the project, and Hoot General Construction Co. (“Hoot”), the initial concrete lining subcontractor hired by Jones.

The claims of the parties and history of proceedings were discussed at length in an August 8, 2007 ruling on the parties’ motions and cross-motions for summary judgment (“the August 8 ruling”). The August 8 ruling left the following claims to be tried: Jones’ claims of breach of contract (Count VI), common law indemnity (Count VII) and promissory estoppel (Count XII) against Hoot; Jones’ claims of breach of contract (Count I) and breach of the duty of good faith and fair dealing (Count II) against WRA; Jones’ claims of intentional interference with contract (Count VIII), negligent misrepresentation (Count X) and professional negligence (Count XI) against B&V; Hoot’s claims of intentional interference with contract (Count I) and professional negligence (Count III) against B&V; WRA’s counterclaim against Jones for breach of contract and breach of the duty of good faith and fair dealing; WRA’s cross-claim against B&V for indemnity (Counts I through VI); and B&V’s counterclaim against Jones for contribution on Hoot’s claims against B&V and cross-claim against Hoot for contribution on Jones’ claims against B&V.

The Court has diversity jurisdiction. 28 U.S.C. § 1332(a). The case came on for bench trial before the undersigned on August 20 through 24, 2007 pursuant to 28 U.S.C. § 636(c). Posttrial written arguments and motions for judgment as a matter of law have been filed and the case is now fully submitted.

The Court has carefully considered the record evidence, the post-trial written arguments and motions for judgment as a matter of law, and now finds and concludes as follows on the issues presented.

I.

FACTUAL BACKGROUND AND FINDINGS

A. Concrete Corrosion, The Competing Lining Systems, and Testing

To better understand the issues and background facts in this case it is appropriate to start by discussing why concrete exposed to wastewater needs to be protected and moving from there to a comparison of the two lining systems at issue and the testing to which they have been subjected. John A. Redner retired in 2004 as head of the “Sewerage” Department for the County Sanitation Districts of Los An-geles County. He has extensive experience in protecting wastewater collection systems from the corrosive effect of waste-water, and is a recognized leading expert on the subject. Jones called Mr. Redner to give expert testimony. According to Mr. Redner, as wastewater stays in a collection system, it becomes septic and gives off hydrogen sulfide gas. Bacteria break down the hydrogen sulfide gas and consume the hydrogen sulfide. A byproduct of this process is sulfuric acid. Most wastewater collection systems, including WRA’s, are constructed of concrete. Sulfuric acid corrodes concrete. How to protect concrete wastewater collection systems from corrosion has been a subject of study for decades. The issue became acute when in about 1987 the federal Environmental Protection Agency adopted new regulations which required industries to remove heavy metals from wastewater. The removal of heavy metals had the unfortunate effect of improving the wastewa-ter environment for the growth of bacteria, the net effect of which was a significant increase in the production of sulfuric acid and accompanying marked acceleration in the corrosion rate of concrete wastewater structures.

Coatings of various kinds provide a measure of protection, but used alone tend to degrade and fail over time which had, in fact, been WRA’s experience with coal tar epoxy coatings. The most consistently successful protective methods involve attachment of an impervious polyvinyl chloride (PVC) liner to the concrete surface. PVC liners for new concrete structures have been available for years. It has been within about the past twenty years that lining systems have evolved to protect rehabilitated existing concrete collection structures. As relevant in this case, the rehabilitation and protection of an existing structure involves first repair of the corroded concrete surface (for example by sand- or waterblasting, with the application of shot crete if more severely damaged) followed by the application of a bonding material or “mastic” to the repaired concrete surface to which is affixed a PVC liner. In 2002 two companies offered PVC/mastic lining systems for rehabilitated concrete wastewater structures— Ameron International Corp. (“Ameron”), and Linabond, Inc. (“Linabond”). (Ex. 195 at 4). As events would develop, the competing lining systems proposed for use on the WRA project were Ameron’s “Arrow-Lock” system and Linabond’s “Semi-Rigid Co-Lining” system.

Arrow-Lock uses an epoxy mastic and PVC sheets with ribbed, arrow-shaped anchors on the inside face. The PVC sheets are mechanically locked in place by rolling the anchors into the mastic before it cures. Weld strips are fused at the seams of the PVC sheets using hot air. Linabond’s co-lining system uses a structural polymer mastic with, in this case, a semi-rigid PVC lining which is chemically bonded to the structural polymer. Polyurethane seam material is used to seal the joints. The first installation of both of these systems occurred in the mid-1990’s. While both were designed to rehabilitate corroded concrete structures, both could be used on new construction.

The record is replete with references to two kinds of tests for coatings and liners generally accepted as standards in the wastewater treatment community. The first is the “pickle jar” test, developed and conducted by the City of Los Angeles. Since the 1940’s and '50’s the City has been involved in testing materials for use in wastewater treatment systems. The manufacturer of the product being tested, usually a coating, supplies test “coupons” which are immersed in solutions of chemicals typically found in wastewater for a period of up to 112 days. The coupons are checked every twenty-eight days for changes in them properties. Some coatings, however, passed the pickle jar test but failed in use. Los Angeles sanitation officials under Mr. Redner’s leadership developed an auxiliary test to gauge the performance of protective coating and lining systems to sulfuric acid exposure over a period of one year. Some ninety-plus products or systems had, as of 2002, been subjected to what has come to be known as the Redner test. The results of the tests were summarized in an August 2002 report authored by Mr. Redner and other engineers associated with the sanitation districts of Los Angeles County (the “Redner report”). (Ex. 195 at 310-44). Both Am-eron’s Arrow-Lock PVC liner and Lina-bond’s PVC liner with its structural polymer system passed the Redner test. (Id. at 321, 322, 332). Both had the best possible score for acid resistance and “concrete bond,” though Linabond did not score as well on “application.” While the Arrow-Lock liner passed the Redner test, the mastic used in the Arrow-Lock system has not been tested. The Linabond structural polymer mastic has passed the pickle jar test.

B. The Course of Events

On December 3, 2001, the City of Des Moines entered into an Agreement for Professional Services (the “professional services agreement”) with B&V to review the WRF and design the project. (Ex. 197). The scope of B&V’s professional services was initially limited to engineering services for the design and bidding of the project. (Ex. 197 at 20). It was later expanded to include bid and pre-award services, and project administration and control. (Id. at 37-54). Part of the latter included review of submittals from the general contractor.

B&V operates on a team model or project workflow basis. In 2002 B&V’s internal design team on the concrete lining portion of the WRF project included project manager Matt Bond, project engineer Amy Kliewer, design engineer Lucas Botero, and a summer intern, Melantha Herron. In discussions with WRA the team learned from Michael Hall, a City of Des Moines civil engineer involved in managing waste collection systems and major treatment projects, that prior to 2002 the City had used primarily coal tar epoxy coatings on concrete pipe and in some structures. The coatings delaminated and failed, even after reapplication, causing severe deterioration of the concrete pipes and structures. WRA told B&V that it did not want to have to deal with the deterioration problem again as there was limited access to the in-ground tanks and there would be regular delivery of a large volume of hauled waste. This concern was heightened by the fact the existing septage tanks were to be rehabilitated to serve as special waste tanks. (Ex. 6 at 1). The system was to handle not only waste from the sewer system, but hauled waste brought in by truck from other communities, “port-a-potties,” and industrial waste. The industrial waste was expected to be high-strength and high in suspended solids with wide pH swings. As a result B&V anticipated the “physical, chemical and bacteriological characteristics” of the “special” waste would not be uniform and would be “very aggressive,” necessitating adequate protection from corrosion. (Id.)

In June 2002 Ms. Herron was given the task of researching lining systems for the rehabilitated tanks. She spoke with a B&V chief engineer, Jack Ory, to gain direction. Mr. Ory testified he met with Herron, but did not have enough information about the job to give her more help at the time. He did tell her she should obtain information about the type of products available and see what vendors of those products would recommend. He wrote down the names of several products and reputable manufacturers. Mr. Ory gave the list to Ms. Herron. (Ex. 4). Among the products he listed was “T-Lock lining by Ameron.” Mr. Ory understood that Ms. Herron was asking about lining for an existing tank and told her Ameron’s T-Lock system was typically for new construction, but they might have something else. Mr. Ory also had in his possession an envelope of materials from Linabond which he gave to Ms. Herron. Mr. Ory had the Linabond information because he received and kept literature from vendors about products he thought might be useful. He testified it was common practice to utilize vendors and manufacturers as resources for available products and their specifications. In a later, June 25, 2002 email to Ms. Herron, Mr. Ory outlined information that would be important for her to obtain in the course of her research. (Ex. 3).

Precisely what Ms. Herron did to research lining systems is unclear because she did not testify. The copy of the June 25 e-mail in the record has handwritten notes on it, presumably by Ms. Herron, which include a reference to Linabond and a number for Anna Pingel, Linabond’s Chief Financial Officer at the time. (Ex. 3). Apparently Ms. Herron got hold of Pingel immediately after receiving the June 25 e-mail from Mr. Ory as evidenced by Pingel’s follow-up e-mail to Ms. Herron about two hours after Ory’s e-mail. (Compare Ex. 5 at 6-7 with Ex. 3). Ms. Pingel thanked Ms. Herron for contacting Lina-bond and directed her to a private website for more information concerning the company’s products. (Ex. 5 at 6-7). She also attached additional information concerning Linabond’s three “co-lining” systems and invited Herron to send more information to facilitate a recommendation from Lina-bond. (Id. at 8).

In the next few days Ms. Herron and Ms. Pingel exchanged more information about the project and about Linabond. (Ex. 5 at 4-6). In a July 2, 2002 e-mail Ms. Herron asked about price estimates and whether a Linabond representative might be available in the Des Moines area to view the tanks. (Id. at 4). Ms. Pingel responded with further questions about the project. On July 9, Ms. Pingel and Ms. Herron exchanged information about use of an anchoring system. On July 11 Herron queried Pingel about Linabond’s warranty information.

On July 12, 2002, Ms. Kliewer sent a memorandum to Mr. Hall and other WRA representatives recommending installation of the Linabond co-lining system “with a supplementary anchoring mechanism above the water line” for the existing tanks to be rehabilitated, noting her recommendation could also be applied to “other structures requiring corrosion protection measures.” (Ex. 6 at 1-2). The memorandum had been drafted through the joint efforts of Ms. Herron and Mr. Botero. Ms. Kliewer reviewed and edited the memorandum, but the research was entirely Ms. Herron’s. The memorandum contained information about several lining and coating systems, application methods, environments in which the products had been used, the time needed for installation, and surface preparation. Three lining systems were presented for consideration. Linabond’s co-lining system and an Amer-on urethane lining system which had reportedly been used for chemical and petrochemical storage tanks were two of these. Because of the high level of oil and grease existing on the tank walls the memorandum recommended a lining system with “a combination of chemical bonding agents and physical anchors,” adding that most manufacturers “do not approve the idea of mechanically anchored systems because of their previous experiences” but “do not object to installing an anchoring system above the maximum surface water elevation.” (Id. at 6). WRA ultimately accepted the recommendation.

The July 12 memorandum also “strongly recommend[ed]” that the manufacturer visit the site “to assess the tanks’ conditions and discuss the surface preparation to be used.” (Ex. 6 at 3). The tanks were inspected by Linabond’s representative, Dave Ahern, on July 26, 2002. As a result of the field inspection and based on the extent of corrosion in the tanks, Lina-bond’s research and development director, German Gilli, recommended to B&V that Linabond’s “Semi-Rigid PVC” co-lining system be used for all tanks. (Ex. 7 at 1). Mr. Botero forwarded Mr. Gilli’s recommendation and attached sample specification to Kliewer. (Ex. 8).

Over a year went by before the liner design was revisited. On October 7, 2003, B&V submitted a project Design Memorandum to WRA which proposed existing tanks and wetwells would be rehabilitated with a “combination of a sheet liner with a coating system.” (Ex. 11 at 4, 6, 15-16). B&V began to prepare drawings and specifications for the contract documents. On November 13, 2003, Mr. Botero contacted Wayne Kerns, a corrosion specialist and product specifications archivist at B&V. Mr. Botero told Mr.' Kerns that B&V would be specifying “a co-lining system (Linabond)” for the Des Moines project. He asked for a copy of a “Flexible Protective Co-Lining System” “cut file” in B&Vs records. (Ex. 12 at 1). In B&Vs system a “cut file” is a nonstandard specification which has been used on another B&V project. Mr. Kerns provided Mr. Botero with a “tentative guide specification” for a Lina-bond flexible co-lining system. The specification had been drafted by Mr. Jon Ar-dahl in 1996. (Id. at 2-15). Mr. Ardahl was at the time a member of B&V’s specification department. Paragraph 5 of the cut file specification stated “[t]he co-lining system shall be Linabond ‘Vinylthane Co-Lining System” and “[n]o substitutions or alternatives will be permitted.” ” (Id. at 7). The specification was thus a “sole source” Linabond specification, that is, a specification which specified the manufacturer of the product to be installed.

On November 25, 2003, Mr. Botero contacted Linabond’s Mark Bertram for additional information. (Ex. 13). Mr. Botero sent B&V’s Linabond cut file specification to Mr. Bertram for review. Mr. Bertram responded with an updated sample sole source specification for Linabond’s semi-rigid co-lining system. (Ex. 14 at 3-8). With the in-house cut file specification and Linabond’s updated specification in hand, Mr. Botero put together a draft lining specification for the WRA project. His draft specification was reviewed and certified by Ms. Kliewer.

On December 16, 2003, another B&V design engineer, Scott Aurit, e-mailed B&V’s draft lining specification to Mr. Bertram with a request for a review and comment. (Ex. 15 at 3). On January 8, 2004, Ms. Pingel sent Mr. Botero the most recent Linabond sample specification to review and said Mr. Gilli would call the next day. Mr. Botero believes he made changes to the specification based on the information provided by Ms. Pingel. (Ex. 16).

The end result of all this was Section 09887 of the project specifications entitled “Protective Co-Lining System.” (Ex. 18; Ex. 48 at 407-15; Ex. 49 at 8-16). The specification called for a protective “co-lining” system to be applied to the interior concrete surfaces of all of the project’s wetwells and tanks. It is necessary to review the specification in some detail. Section 6 captioned “MATERIALS” stipulated the “co-lining system shall be Lina-bond ‘Semi-Rigid Co-Lining System’ manufactured by Linabond Inc., or equal.” (Ex. 18 at 3 (emphasis added)). The same section went on to specify “[c]o-lining [mjaterials” ... “if approved by the lining manufacturer.” (Id.) These included a structural polymer mastic which was to be resistant to “weathering, aging, dilute (10 per cent) solutions of sulfuric acid and intermittent wetting by raw sewage.” (Id.) The sulfuric acid solution to which the mastic was to be resistant was the same employed in the Redner test. (Ex. 195 at 312). Subsection 6.01 described the physical properties of the liner.

Section 4 of the specification required the “lining” to meet conditions of service with reference to exposure to specified chemical solutions, chief among which was a solution of 20 per cent sulfuric acid. (Ex. 18 at 2). The chemical solutions were essentially the pickle jar test chemicals.

Section 9 of the specification dealt with the application of the lining system. The system was to “consist of a semi-rigid liner bonded with a surface activator to a structural polymer mastic that is bonded with an epoxy/urethane primer to the concrete surface.” (Ex. 18 at 5). At vertical seams the liner sheets were to be overlapped at least four inches and “fully bonded in the mastic to the adjoining liner sheet.” (Id. at 7).

Except for the conditions of service, all of the particulars of the specification discussed above were peculiar to Linabond’s patented co-lining system.

Throughout the development of the specification, and later when considering submittals from general contractor Jones, B&V’s engineers viewed the term “co-lining” as a generic description of a type of lining system with a PVC liner attached to a coating or mastic applied over the concrete substrate which afforded two levels of protection (a “co-lined system” as referred to in Ms. Kliewer’s original July 12, 2002 lining memorandum (Ex. 6 at 2)). “Co-lining” is actually a proprietary trademark for Linabond’s lining system and is not an engineering term used in the industry. The “Co” in co-lining signifies a covalently bonded liner, that is, a type of chemical bond. The structural polymer mastic was not intended to afford standalone protection though it was resistant to acid and sulfide and would provide a measure of protection if the liner was compromised until the liner could be repaired.

As originally drafted by B&V the specification was a “sole source” specification like that in the cut file and Linabond’s sample specifications in that it specified only Linabond’s product. The “or equal” language italicized above was added at the request of WRA which preferred to have as few sole source specifications as possible. The request was not controversial with B&V. Ms. Kliewer testified B&V did not know that there were no other manufacturers who could meet the lining specification and that an or-equal would be considered was already provided for in the “front end” provisions of the general contract. As the Court understands it, the front end provisions Ms. Kliewer was referring to were those which stipulated the project would be constructed in accordance with the Urban Standard Specifications for Public Improvements Manual (“Urban Standards”), a uniform set of specifications for public improvements, as modified by “supplemental specifications and special provisions” specific to the project (“specific project requirements”). (Ex. 48 at 28). The Urban Standards instructed that when a “manufacturer’s name, brand or model is mentioned, it is to be understood that the words equivalent or equal are assumed to follow ... whether or not they do in fact....” (Exs. WRA 1 at 12; 48 at 305). Similarly, the specific project requirements advised that “[wjhenever the names of proprietary products or the names of particular manufacturers, or vendors are used, it shall be understood that the words ‘or equal’ following the enumeration, if not specifically stated, are implied.” (Ex. 48 at 227). The same section also stated that “[w]henever a material or article is specified or described by using the name of a proprietary product or the name of a particular manufacturer or vendor, the specified item shall be understood as establishing the type, function and quality desired.” (Id.)

In March 2004 the City notified potential bidders of the project. Bidding documents made available to prospective bidders included plans, drawings and specifications from the general contract, and by reference the Urban Standards. (Ex. 48 at 26, 134). The project, plans and specifications were publicly advertised. (Id.) Bids were due April 20, 2004. (Id. at 26; Ex. 23 at 1).

John T. Jones Construction Company of Fargo, North Dakota, is a general contractor which in the past twenty years has almost exclusively worked on wastewater projects. Jones is a lowcost bidder. It is owned by brothers Jeff Jones and John B. Jones. While the company itself does some dirt, concrete and pipe work, typically most of the work on its projects is performed by subcontractors. John B. Jones is the company’s president, Jeff Jones its CEO. John Jones is in charge of estimating. Jeff Jones takes charge of the projects after they are awarded to the company. John Jones was assisted in estimating the WRA project by Scott Nath, a Jones project engineer and estimator. Mr. Nath was responsible for the concrete liner part of Jones’ bid for the WRA project. He also served as Jones’ project manager on the project.

While Mr. John Jones had many years of experience bidding projects, the WRA project was Mr. Nath’s second job as a project manager for Jones. Neither was an expert on concrete lining, was familiar with Linabond’s products, or was acquainted with the differences between the Lina-bond and Ameron lining systems. Mr. John Jones testified the company relied on subcontractors to bid the appropriate products for a project. The time factor involved in bidding also necessitated reliance on subcontractors because most subcontractor bids came in at the eleventh hour just before the general contractor’s bid was due, a common practice which discouraged general contractors from bid shopping. Typically Jones did not go over subcontractor bids in detail, looking only at the scope, price and whether there were any exclusions such as “subject to engineer’s approval.” Jones did not take bids with exclusions.

A project pre-bid conference was held in Des Moines on March 18, 2004, at which B&V reviewed the bidding documents and procedures, explained the contract specifications, including that substitutions would not be evaluated during the bid phase, gave a plant tour, and answered general questions. (Ex. 48 at 103-106). No representative of Jones attended. (Id. at 107). Jones did not submit to B&V any pre-bid requests for clarifications or interpretations of the contract specifications. It did, however, have the bidding documents in hand. (Id. at 134-35). No bidder raised any questions about the liner specification. (Id. at 103-106).

Mr. Nath called Phil Hoot, president of Hoot General Construction Company of Houston, Texas, to see if Hoot would be interested in bidding the lining work on the project. Hoot has been a certified Ameron concrete lining installer for over twenty-five years and usually works as a subcontractor on public projects. In 2003 Jones employed Hoot to install Ameron T-Lock on new concrete structures at a wastewater treatment plant project in Springfield, Missouri. (Exs. HC 5 at 11-13; 9, 10, 69). B&V was the project engineer though neither Ms. Kliewer nor Mr. Botero were involved with Springfield. (Ex. 199).

Mr. Nath probably called Mr. Hoot on or just before April 19, 2004. Mr. Hoot requested a copy of the lining specification and an approximation of the quantity of materials required, the “take-offs.” Mr. Nath faxed this information to Hoot on April 19. (Ex. 21). After looking at the specification Mr. Hoot spoke with Mr. Nath and told him if Hoot bid on the project it would have to be on an or-equal basis.

Mr. Hoot faxed the specification to John Pico, an Ameron field service representative, and followed up with a call to Mr. Pico. They discussed whether Ameron’s lining products would equal the specified Linabond product. Not surprisingly Mr. Pico assured Mr. Hoot Ameron’s products were the equal of Linabond’s. Mr. Hoot then called Mr. Nath. Mr. Hoot told Nath he had spoken with Ameron and there should be no problem using Ameron’s products on the project, Hoot had never had Ameron rejected as an or-equal, and Ameron was considered equal to Linabond in the industry. Mr. Hoot informed Mr. Nath that Hoot would send a bid in on an or-equal basis. All of this occurred in short order for later on April 19 Hoot faxed Jones a quote for “T-Lock or Arrow-Lock liner at the referenced project.” (Ex. 22).

For his part, Mr. Nath did not recall any conversations he may have had with Mr. Hoot prior to Hoot’s bid. He testified Jones relied only on the quote it received from Hoot. Mr. Nath knew the quote was for Ameron products, not the specified Linabond system, and that an “or-equal” submission had to be approved by the project engineer.

Hoot’s bid for installing a mix of Amer-on’s T-Lock and Arrow-Lock on the new and existing structures was $382,074.00. (Ex. 22 at 2). Mr. Nath did not have any other liner bids at the time Jones prepared what would be its first bid on the project.

On April 20, 2004, Jones submitted its initial bid for general construction work on the project. (Exs. 23, 25). Jones listed Hoot as its concrete lining contractor but provided no other information concerning Hoot’s quote. (Ex. 23 at 9). Jones was the low bidder, substantially so. (Ex. 26). However, Jones found a mistake in its bid and requested and received permission from WRA to withdraw it. (Exs. 25, 27).

WRA rejected the initial round of bids and directed the project be let for rebidding. (Ex. 33). A new bid closing date of June 8, 2004 was set. (Ex. 48 at 144). Jones was allowed to rebid. On June 8, 2004, Jones received unsolicited bids from Graham Construction, Inc. and CDP Maintenance, Inc. for the liner portion of the project. (Exs. 40, 203, WRA 5). The Graham and CDP bids were based on the Linabond co-lining system (though this was not evident from Graham’s bid) and were in the amounts of $614,881 and $1,087,988 respectively. Jones again used Hoot’s quote in its second bid, although it neglected to include Hoot’s identification or quote in the bid documents submitted to WRA. (Ex. 35 at 6). Jones was again the low bidder when the bids were opened on June 8, 2004 and again substantially so. (Ex. 38). Scott Hutchens of WRA contacted Jones about the missing information, to which Jones promptly responded, identifying Hoot as the co-lining subcontractor and $382,074 as the lining subcontract amount. (Ex. 39). On B&V’s recommendation WRA awarded the general construction contract for the project to Jones for the low bid amount of $9,305,401. (Ex. 42).

Jones and WRA entered into the “WRA Public Improvement Contract” on July 1, 2004 (hereinafter “general contract”). (Ex. 48). The contract included the Urban Standards, (id. at 294), and the “Protective Co-Lining System” specification in section 09887. (Id. at 407).

In the meantime Hoot had heard nothing from Jones about the status of its bid or whether it had even been incorporated in Jones’ bid. Around July 19, 2004 Sue Daul, the contract administrator at Jones, wrote to Hoot enclosing Jones’ standard subcontract form with a request that it be signed and returned in ten days. (Ex. 50). This was followed on July 22, 2004 by a congratulatory fax from Jones saying sub-mittals were due July 30, 2004. (Ex. 54). Both Theta McDurham, Hoot’s project administrator, and Mr. Hoot reviewed the subcontract. At Mr. Hoot’s direction, Ms. McDurham changed the subcontract by adding two new terms which she typed on the contract form just after the signature lines: “Contract amount to be based on actual square footage of liner installed, welded and tested. Full set of construction drawings is required to perform work outlined in Section 09887.” (Ex. 57 at 12). Hoot had based its bid on information from Mr. Nath about the quantity of liner involved. Hoot added the unit price and construction drawings terms to ensure it would be compensated for all of the liner it installed. Hoot did not return the subcontract right away. Mr. Hoot signed it with the additional terms on August 3, 2004 and on August 4 Ms. McDurham sent the subcontract on to Jones. (Exs. 55, 56, 57). In a fax cover sheet Ms. McDurham also said eight submittals would be sent to Jones that day by mail. (Ex. 56).

Hoot’s company policy was to include its bid in any subcontract it entered into with a general contractor as a means of limiting the scope of its work to what it had bid. It did this by attaching its bid as an exhibit to the contract. Hoot had done this with Jones in connection with the 2003 Springfield, Missouri project. (Ex. HC 5 at 11-14). When Ms. McDurham sent the signed contract to Jones on August 4, 2004 she did not attach the bid for inclusion in the contract — referred to in the testimony as “Exhibit B.” This omission was noted and on August 11, 2004 Ms. McDurham faxed Exhibit B to Jones’ Mr. Nath with a cover sheet requesting that it be added to the subcontract, signed by Jones, and returned to Hoot. (Ex. HC 1 at 1). Hoot intended that as with the subcontract on the Springfield project, Exhibit B would describe the work Hoot was to perform. Exhibit B expressly provided that it was “[t]o be entered into and made a part of Section 16.4 — Other Special Provisions” of the subcontract, which is what had been done with the subcontract documents on the Springfield project. (Compare Ex. HC 1 at 3 with Ex. HC 5 at 11-14). Ms. McDurham testified she followed up with a phone call to Mr. Nath the same day. Mr. Nath had received the fax and, according to Ms. McDurham, said he or Jeff Jones would sign Exhibit B and return it to Hoot as requested. Mr. Nath and Ms. McDur-ham discussed that the project would be handled “just like Springfield.”

Ms. McDurham prepared daily notes for Mr. Hoot. In her notes for August 11, 2004 she wrote: “Scott Nath/John T. Jones/Des Moines, IA ... requested ‘Exhibit’ be added to subcontract as was done for Springfield, MO Subcontract. Done — faxed Exhibit (attached) Scott or Jeff T. Jones will approve, sign and return by fax.” (Ex. BV 24 at 1). Mr. Nath has no recollection of any conversation he may have had with Ms. McDurham about Exhibit B. He testified he did not have authority to enter into contracts, or to modify a contract, without talking to Jeff or John Jones first. He also said his “OK” notes on Jones’ copy of Ms. McDurham’s faxed copy of Exhibit B had to do with the quantities of the material described in the exhibit. (See Exs. 222, 223). In view of Hoot’s practice of including its bids in subcontracts, Ms. McDur-ham’s testimony concerning her discussion with Mr. Nath about Exhibit B seems plausible. Her testimony is further supported by her contemporaneous notes of her conversation with Mr. Nath. For these reasons the Court credits her version of what passed between her and Mr. Nath on August 11 and finds that Mr. Nath told Ms. McDurham that Jones would approve the addition of Exhibit B to the contract and would return a signed copy to Hoot.

Hoot’s unit price proposal caused some concern to Jones because it potentially made Hoot’s compensation indefinite. Mr. Nath checked the anticipated square footage against the bid amounts and talked to Mr. Jeff Jones, who agreed there should be no problem agreeing to the unit price term Hoot had proposed. (See Exs. 222, 223).

Mr. Jeff Jones signed the subcontract for Jones on August 18, 2004. It was mailed to Hoot on Friday, August 20 and received by Hoot on August 23. (Ex. 58 at 1-2). The subcontract included the two new terms proposed by Hoot, but Exhibit B was not signed by Jones nor was it included in the subcontract documents returned to Hoot. Its absence was unexplained.

Ms. McDurham reviewed the executed subcontract as returned by Jones and noted the absence of Exhibit B. She brought it to Mr. Hoot’s attention. Hoot did not pursue the matter. Neither Mr. Hoot nor Ms. McDurham had any further contact with any representative of Jones about Exhibit B until December 4, 2004 when Jones and Hoot were in dispute about Hoot’s obligations under the subcontract.

On August 25, 2004 Jones received the submittals from Hoot. (Ex. 59 at 3). When they were actually sent by Hoot is not clear in the evidence. Mr. Hoot testified that because of the amount of work required to prepare submittals they were typically not sent out until Hoot had a contract in hand. Ms. McDurham does not recall when the submittals were mailed. The parties have stipulated, however, that Hoot sent the submittals for the lining system to Jones after receiving the executed subcontract from Jones on August 23. (Order on Final Pretrial Conference at 4).

The same day Jones received the sub-mittals from Hoot, it sent them on to B&V where they were processed as Submittal No. 32. (Ex. BV 59 at 2-3). Under its contract with WRA, B&V had been assigned the job of reviewing submittals and, subject to WRA’s approval, exercised the jurisdictional engineer’s responsibilities in this regard under the general contract. (Ex. 48 at 345; Ex. 197 at 46). The contract provided “requests for review of equivalency” would not be considered until after the general contract was awarded, (Ex. 48 at 227), and even after the contract was awarded both the Urban Standards and specific project requirements of the contract instructed no proposed or-equal product was to be ordered until after the engineer reviewed the submittal and approved the or-equal. (Id. at 217, 305). The engineer was the “sole judge of the acceptability” of submittals and whether an item of material or equipment qualified as an or-equal was in the “sole discretion” of the engineer. {Id. at 215). The general contract vested the jurisdictional engineer with authority to decide “any and all questions which may arise as to the quality or acceptability of materials furnished” concerning which the engineer’s decision was “final.” (Id. at 345).

Submittal No. 32 called for the installation of Ameron’s T-Lock PVC sheet liner and Arrow-Lock sheet lining system, the former presumably on the new waste-todigester wetwell (the only new structure to be protected) and the latter on the existing structures. The submittal was not expressly identified as seeking approval of an or-equal lining system and perhaps for this reason it did not get much in-depth consideration from B&V. It went to Mr. Botero who noted the differences between the specified materials and liner physical properties (which were, as noted, those of the Linabond co-lining system) and those of the Ameron products (see BV Ex. 35), spoke to Ms. Kliewer and decided the sub-mittal was not acceptable. Ms. Kliewer testified that while the submittal did not purport to deviate from the specifications it seemed obvious to her when she read it that it did so.

On September 2, 2004 B&V rejected Submittal No. 32 because the proposed lining system “does not meet the specification requirements.” (Ex. 60). The rejection flowed through Jones to Hoot. Mr. Hoot was taken by surprise. He had never before had an Ameron product rejected. Following the chain of command, he wrote to Jones’ Mr. Nath on September 10, 2004 asking for an explanation. (Ex. 61 at 3). Jones sent the inquiry to B&V which reviewed it as “Request for Information No. 7” (the “RFI”).

The RFI received more attention from B&V than the original submittal. Again Mr. Botero was primarily involved. He reviewed the shop drawings and the original submittal, and talked to Ms. Kliewer. Mr. Botero e-mailed a memorandum of his findings to Ms. Kliewer. (Ex. 62). He noted T-Lock was only a liner and not a co-lining system. He observed that Arrow-Lock, like Linabond, was attached to a mastic, but beyond that there were a number of differences: Arrow-Lock’s seams were hot-air welded, Arrow-Lock did not use a surface activator, Linabond’s product literature said that welded liners did not hold external hydrostatic pressure as well as bonded liners, the Arrow-Lock liner did not meet the specified tensile strength and durometer values, Arrow-Lock was a thicker liner, it was possible the Arrow-Lock arrow-shaped fasteners would penetrate the full thickness of the mastic, there were differences in the composition of the Arrow-Lock and Linabond mastics, and the Linabond liner was semi-rigid whereas the Arrow-Lock liner was flexible.

Mr. Botero also sent his e-mail to Mr. Kerns for review and comment. Mr. Kerns for the most part agreed with Mr. Botero. He responded to Mr. Botero and Ms. Kliewer that “[sjince we used a spec that was based on the Lynabond [sic] system, I don’t believe the Ameron T-Lock or Arrow-Lock systems should be considered equivalent.” (Ex. 65 at 1).

On September 28, 2004 B&V responded to the RFI stating that T-Lock was unacceptable because it was a lining, not a “co-lining” system and therefore not comparable, and the Arrow-Lock system differed from the specifications in that its joints were fusion-welded with hot air rather than chemically bonded, Arrow-Lock did not use a surface activator, and it did not meet the tensile strength and durometer values. (Ex. 66 at 2). The other differences noted by Mr. Botero in his e-mail to Ms. Kliewer and Mr. Kerns were omitted because of uncertainty about their validity as a basis to reject Ameron.

A few weeks later, on October 20, 2004, Mr. Hoot called Robert Fisher, an Ameron Regional Sales Manager, and asked for his assistance in persuading B&V to accept Ameron products for the project. Mr. Fisher happened to be at B&V’s Kansas City office at the time he got the call and he attempted to see Ms. Kliewer. Ms. Kliewer would not see him at the time. On November 2, 2004 Mr. Fisher wrote to Ms. Kliewer about the “Arrow-Lock sub-mittals.” (Ex. 70 at l). He started by saying the Arrow-Lock lining system had been approved as an or-equal on numerous projects where Linabond had been specified, and vice versa. He pointed out that the project lining specification was written in terms proprietary to Linabond, making it a sole source specification. Then he addressed the reasons given in the response to the RFI. He argued that while Arrow-Lock did not use a surface activator, mechanically locking the liner sheets as Arrow-Lock did avoided the risk of delamination. He contended the differences in hardness and tensile strength between the two liners merely meant that the Arrow-Lock lining sheets were more pliable and capable of withstanding lower temperatures. He stressed Ameron’s fifty years’ of experience and sent along Amer-on product literature, a trade publication article about a successful Ameron project in Topeka, Kansas, a list of Ameron installations, and the results of a Redner acid bath test. The letter was treated by B&V as Submittal No. 32A.

Ms. Kliewer and Mr. Botero reviewed the submittal. Ms. Kliewer asked Mr. Ar-dahl, the author of the “cut file” specification, to review Mr. Fisher’s letter. Mr. Ardahl had by then retired from B&V but continued to serve it as an in-house consultant. Mr. Ardahl has substantial experience over a lengthy career in concrete, corrosion and corrosion-protection systems for concrete. (See BV Ex. 17). He reviewed and compared the Arrow-Lock system with the project lining system specifications. In doing so he reviewed the Arrow-Lock information submitted by Mr. Fisher. On November 15, 2004 Mr. Ardahl wrote a memorandum to Ms. Kliewer giving his opinions. He began by stating that a “co-lining” system had to provide corrosion protection “on two levels, the PVC sheet and the mastic with maximum adhesion of the liner to the mastic.” (Ex. 73). He saw the Arrow-Lock system as providing only one level of protection. As the Court understands Mr. Ardahl’s testimony, he believed this to be the case because no data had been provided to indicate the corrosion resistance of the Arrow-Lock mastic. In his memorandum Mr. Ardahl noted the Arrow-Lock system did not bond the PVC sheets to the mastic. If the liner was compromised the corrosive environment would attack the mastic between the arrow projections. (Id.) This would be exacerbated if there were voids around the arrow projections.

Mr. Ardahl wrote he was also concerned about Ameron’s use of an epoxy mastic where thermal expansion and contraction could occur because epoxies and the concrete substrate would not react the same to thermal changes. (Ex. 73). He testified that when epoxies cure they give off a lot of heat which he did not like to see around concrete, and epoxies can be more rigid. Finally, Mr. Ardahl observed no information had been provided to evaluate the Arrow-Lock primer and mastic materials, noting the project specification “clearly indicates the requirements for these....” (Id.) For these reasons Mr. Ardahl concluded the Arrow-Lock system was not equal to the Linabond co-lining system.

Mr. Ardahl testified he would not have considered the Arrow-Lock system to be equal unless it had met or exceeded the entire specification, including the materials and physical property values.

On November 16, 2004 Ms. Kliewer emailed Mr. Ardahl’s memorandum to Mr. Nath and Mr. Fisher stating Arrow-Lock was “not acceptable for the Des Moines project.” (Ex. 75). A formal rejection of Submittal No. 32A was sent out by B&V the same day. (Ex. 77).

Jones sent Mr. Ardahl’s memorandum to Steven Smyczek, an Ameron manufacturer’s representative, though not an Am-eron employee or engineer. Mr. Smyczek wrote to Mr. Nath on November 16, 2004 responding to Mr. Ardahl’s memorandum point by point. (Ex. 76). He argued that “co-lining” was a Linabond marketing term, that the Ameron Arrow-Lock system in fact did provide two levels of protection with its mastic and PVC liner— what he termed a similar “belt AND suspenders” approach — and that overall Am-eren’s mechanical attachment of the liner to the mastic was superior to Linabond’s “glued on” process. (Id. at 2). In the course of his letter Mr. Smyczek stated that Ameron’s mastic would “withstand up to 70% sulfuric acid.” (Id. at 1). There was no basis for this claim.

Mr. Smyczek’s letter was forwarded to B&V by Mr. Nath. Ms. Kliewer reviewed the letter. Months later she reviewed the letter again with Linabond’s Mr. Bill Sato and Mr. Gilli and asked them questions generated by the letter as well as Mr. Fisher’s letter of November 2, 2004. (See Exs. 118-121, 195 at 373-74).

Ms. Kliewer and Mr. Botero did not know at the time Submittal Nos. 32 and 32A were reviewed that Jones and Hoot had entered into a subcontract or that Jones had based its bid on the Ameron products. Ms. Kliewer testified she first learned of this in mid-December 2004 when Jones proposed a meeting with Hoot. (See Ex. 86).

B&V’s rejection of the Ameron submit-tals presented Jones and Hoot with the issue of which of them would bear the ultimate responsibility of furnishing the more expensive Linabond lining system if that was what would be required. On December 1, 2004 Mr. Nath wrote to Mr. Hoot about an upcoming milestone date and the possibility that afterward contractual damages might be owing under the general contract if the lining system was not complete. Mr. Nath told Mr. Hoot that any liquidated damages assessed against Jones would be the responsibility of Hoot. Among the options suggested by Mr. Nath was that Hoot would get certified as a Linabond installer or hire a Lina-bond installer to perform the work. (Ex. 78). Hoot was not interested in either option. It has never been a certified Lina-bond installer.

On December 9, 2004 Mr. Nath spoke to Hoot’s Ms. McDurham followed by a fax in which he said if Hoot did not reply to the December 1 letter, Jones would have to involve an attorney. (Ex. 80). Hoot, however, struck first with an attorney. On December 10, 2004 its attorney, Ms. Lynette Bratton, responded to Mr. Nath’s December 1 letter. Referring to “Exhibit B to the Subcontract” Ms. Bratton wrote that Hoot had contracted to install the Ameron T-Lock and Arrow-Lock lining systems. The “wrongful” rejection of Sub-mittal No. 32A prevented Hoot from performing its contract to install the Ameron products and Jones’ failure to secure approval was a breach of the subcontract between Jones and Hoot excusing future performance. Ms. Bratton demanded that the submittal be approved by Jones or that Jones agree to termination of the subcontract. (Ex. 82 at 3-4). Mr. Nath forwarded the letter to B&V. On December 14, 2004 Mr. Nath responded to Ms. Bratton outlining Jones’ position that it was Hoot’s obligation to furnish a lining system in compliance with the lining specification and proposing that Hoot, an Ameron representative, and Jones meet with B&V engineers in an attempt to resolve the issue. (Ex. 84). Mr. Nath also said that Exhibit B, while proposed by Hoot as a part of the subcontract, had not been agreed to by Jones and was not a part of it.

On December 15, 2004 Mr. Nath wrote to B&V proposing the meeting he had suggested in his December 14 communication to Ms. Bratton, adding that if Jones was required to install the Linabond system it would request a change order to cover the additional expense. (Ex. 86). Mr. Nath also said that if the Ameron products were approved, Jones would consider issuing an extended warranty for three to five years rather than the usual one year.

The December 15 letter prompted Ms. Kliewer to seek the advice of Robert Crist, a B&V Ph.D. civil and structural engineer with many years of experience who, among other things, served as a claims and risk manager for B&V. B&V engineers seek him out when they see a “red flag” on a project. Ms. Kliewer went to see Mr. Crist and brought with her some of the Arrow-Lock materials which had been furnished with the submittals together with drawings of the project. Mr. Crist looked these over. He advised Ms. Kliewer not to continue responding to requests to reconsider Arrow-Lock as an alternative as he viewed the insistence on Arrow-Lock as getting to the point of badgering. Mr. Crist also told Ms. Kliewer he did not think Arrow-Lock’s mechanical anchoring system was favorable from a constructability point of view.

After talking with Mr. Crist, Ms. Kliewer sent a brief fax note to Mr. Nath on December 21, 2004 stating B&V did not see the need to meet on the liner issue. (Ex. 87). The same date she corresponded with WRA noting B&Vs position that the proposed Ameron products did not meet the lining system specifications and for that reason had been rejected. Ms. Kliewer added that she saw no reason to discuss the matter further. (Ex. WRA 19). At about this time Mr. Nath appears to have approached WRA directly about the proposed meeting. WRA responded the Am-eron product was not an or-equal product and it was unnecessary for the interested parties to meet to discuss the issue as Mr. Nath had proposed. (Ex. 88).

Also in December 2004 Ms. Kliewer asked another B&V project engineer, Earl Jenkins, if he thought Arrow-Lock was equivalent to Linabond. Mr. Jenkins had used Linabond on projects, but was not familiar with Arrow-Lock. Ms. Kliewer showed Mr. Jenkins an Arrow-Lock sample. Based on the sample and his experience with Linabond Mr. Jenkins told Ms. Kliewer he did not think the systems were equivalent because Arrow-Lock was not chemically bonded and he thought Arrow-Lock’s fusion welds would be susceptible to breaking with expansion and contraction.

On January 7, 2005 Ms. Bratton wrote to Jones’ attorney, Maurice McCormick, repeating the contention in her December 10, 2004 letter that B&V’s rejection of the Ameron submittals prevented Hoot from performing its subcontract to install the Ameron lining systems resulting in a breach of the subcontract. (Ex. 112 at 3). On behalf of Hoot Ms. Bratton terminated the subcontract effective immediately. Mr. McCormick wrote back to Ms. Bratton on January 12, 2005 with Jones’ position that if Ameron was not approved, Hoot’s subcontract obligated it to install the Lina-bond lining system. (Ex. WRA 20 at 3-4). Jones rejected the attempted termination of the subcontract and informed Hoot that it would be held responsible for any amounts Jones was required to pay to complete the project.

Hoot and Jones approached B&V again. On February 22, 2005 Hoot sent a packet of materials to Jones which Jones in turn, on February 25, 2005, sent to B&V as a “re-submittal for the Co-Lining System.” (Ex. 102). The re-submittal, which was solely for the Arrow-Lock system, was assigned Submittal No. 32B. It consisted of a cover letter from Hoot, the project lining specification, Mr. Ardahl’s November 15, 2004 memorandum and Mr. Smyc-zek’s November 16, 2004 rebuttal, Mr. Fisher’s November 2, 2004 letter to B&V and accompanying information to Ms. Kliewer, a 2001 laboratory test result of the physical and material properties of the T-Lock PVC sheeting, and the August 2002 Redner report. The Redner report was the principal item of new information in the submittal. (Id. at 69). In a conclusion Mr. Hoot wrote that there was no reason the Arrow-Lock system should not be considered the equal of the Linabond system. (Id. at 89). The submittal was reviewed by Ms. Kliewer to see what the products in the submittal were and whether they had been changed. In addition, Ms. Kliewer may have talked to Mr. Kerns about it. In an e-mail communication Mr. Kerns again told Ms. Kliewer he did not believe Arrow-Lock should be considered equivalent to the Linabond system. (Ex. 108). On March 15, 2005 Submittal No. 32B was returned to Jones by B&V marked “Returned Without Review.” (Ex. 109 at 1, 3).

On March 24, 2005, Jones gave Hoot written notice it was in default with three days to cure. (Ex. 110). When this did not happen Jones followed on March 30, 2005 with a seven-day notice of contract termination stating that if Hoot did not correct the breach Jones would employ others to complete the subcontract work at Hoot’s expense. (Ex. 111). Hoot, through its attorney Bratton, responded that it had earlier terminated the contract. (Ex. 112).

In the same approximate time frame Mr. John Jones wrote to Ms. Kliewer pointing out the problems and increased cost of performance to Jones occasioned by the rejection of Submittal No. 32B, asking again that B&V reconsider its rejection of Ameron in light of the probability of legal proceedings. (Ex. 113). Nothing came of the request and on May 3, 2005, Jones notified B&V it would submit a claim for the additional cost of installing the Lina-bond system. (Ex. 114).

This appears to have caused Ms. Kliewer to contact Linabond’s Mr. Sato and Mr. Gilli to review some of the issues Ameron had raised, presumably referring to the November 2004 letters written by Mr. Fisher and Mr. Smyczek. (See Ex. 195 at 372-73). She asked Sato and Gilli to answer questions about how Linabond’s fully bonded system responded to moving or cracking of the concrete, sought data on the structural polymer mastic’s ability to withstand corrosion, the range of temperatures Linabond’s system would tolerate, and any additives in its PVC liner and potential effect on performance. (Exs. 118-20). She also asked Linabond for, received and apparently reviewed the Red-ner report at this time. (Ex. 121). On May 8, 2005 Ms. Kliewer wrote a memorandum to the project file summarizing the evaluations and reviews of the Ameron submittals, her contacts with other B&V engineers on the or-equal issue, and her communications with Mr. Sato and Mr. Gilli concerning questions raised by Amer-on. (Ex. 195 at 372-75). The next day, May 9, 2004, Ms. Kliewer wrote to WRA recommending that any attempt by Jones to file a claim for the additional cost of installing the Linabond system be denied. (Ex. 122).

On May 18, 2005 B&V and WRA received Jones’ claim in the amount of $232,807. (Ex. 128). WRA wrote to Jones on June 1, 2005 denying the claim. (Ex. 132).

There would be one final push for Amer-on. On May 31, 2005 Mr. Redner wrote to Mr. John Jones about the project. (Ex. 133). He noted that the specifications for rehabilitating the concrete surfaces were “written around” Linabond’s co-lining system. (Id. at 2). He wrote that based on his experience the PVC flexible liner in the Linabond system was never fully bonded to the mastic because there were always “varying degrees of noncompromising dis-bondment” (air bubbles where the liner did not attach), a phenomenon he expected would also occur with the semi-rigid liner to be used in the Des Moines project. Mr. Redner opined that the mechanical anchoring of the PVC liner used in Ameron’s T-Lock and Arrow-Lock systems was equal to Linabond’s chemically-bonded means of fastening the liner to the mastic. (Id. at 3). He continued that he believed both the Ameron and Linabond systems would meet the specified conditions of service and concluded by saying Arrow-Lock was Linabond’s equal. (Id.) On June 2, 2005 Mr. Nath faxed Mr. Redner’s letter to Mr. Scott Hutchens, a Des Moines city engineer assigned to WRA and who served as WRA’s project engineer, and to Ms. Kliewer.

On June 13, 2005 Mr. Hoot wrote to Mr. Nath offering an extended five-year warranty on Hoot’s workmanship in installing Arrow-Lock. (Ex. 135).

In the meantime Mr. Jeff Jones renewed the proposal, rejected the previous December, for a meeting between Jones, Hoot, B&V, WRA and Ameron and Linabond representatives. He spoke by phone with WRA Director William Stowe on June 11, 2005. Mr. Jones told Mr. Stowe that in light of the return of the latest submittal without review he was concerned about “where the whole thing was leading” and proposed the meeting. Mr. Stowe responded he would try to set up such a meeting.

On June 15, 2005 Mr. Jeff Jones met with Mr. Stowe in the latter’s office. Mr. Jones complained that Jones was in the middle with Hoot refusing to install anything but Ameron and B&V insistent upon Linabond. Mr. Jones pressed for a meeting, telling Mr. Stowe “this is all going to hell in a handbasket” if the interested parties did not meet to sort things out. According to Mr. Jones, Mr. Stowe responded that a meeting was a good idea. Apparently Mr. Stowe asked Mr. Jones to supply him with information about the differences in hardness and tensile strength between Linabond’s PVC liner and the Arrow-Lock liner. On June 17, 2005 Mr. Smyczek wrote to Mr. Jones on these subjects, stating essentially that Linabond’s greater hardness and tensile strength did not reflect better performance, but simply the fact that the type of PVC lining required for a chemical bond necessarily had greater hardness and tensile strength. (Ex. 140 at 2-3). Mr. Jones promptly sent Smyczek’s letter to Mr. Stowe. (Id. at 1).

In a handwritten note to Mr. Stowe dated June 16, Mr. Jones said Ameron had suggested that Mr. Stowe talk with Los Angeles County Sanitation official Tommy Sung and Mr. Redner. (Ex. 213). Mr. Stowe passed the note on to Des Moines City sewer enterprises administrator Carl Elshire for follow-up. Mr. Elshire called Mr. Sung who told him he had experience with the Linabond system and less so Am-eron’s Arrow-Lock system, that they had had some problems with Linabond in the form of peeling failures, and had experienced difficulty with Linabond’s people supporting their product. (Ex. WRA 28 at 3). Mr. Elshire received a similar report from a “field guy.” (Id.) Mr. Elshire was unable to make contact with Mr. Redner. Mr. Elshire summarized the results of his inquiries in a June 21, 2005 e-mail to Mr. Stowe which Mr. Stowe forwarded to Ms. Kliewer the next day with the question: “Any change in our position on unequiva-lency?” (Ex. 142).

Ms. Kliewer in a series of e-mails on June 15, 2005 corresponded with several B&V engineers in California and Nevada about their experience with Linabond’s co-lining system and any they might have had with Ameron’s Arrow-Lock. (Exs. 137, 138, 147). Ms. Kliewer began the exchange by saying she was evaluating the two systems and asking if the engineers had any experience with either. (Ex. 137 at 2). She did not learn much. Linabond had been used on one project successfully, but none of the other engineers were familiar with Arrow-Lock.

On June 23, 2005 Mr. Stowe called Mr. Jeff Jones. He told Mr. Jones Ms. Kliewer could not meet that week and Linabond was not interested in the meeting. He also told Mr. Jones that the Los Angeles engineers they had talked to reported there had been some problems with Lina-bond. According to Mr. Jones’ notes, Mr. Stowe also said his technical people had spoken with Mr. Redner who was a “fan” of the Arrow-Lock system. (Ex. 143). Mr. Stowe said he would contact Mr. Jones again the following Monday, June 27.

Mr. Stowe, Mr. Elshire and Mr. Hall had a conference call with Ms. Kliewer on June 27. (See Ex. WRA 30). The Court infers from the context that the purpose of the call was an opportunity for Ms. Kliewer to defend B&V’s decision that Ameron’s Arrow-Lock system was not equal to Lina-bond’s co-lining system in response to the information Mr. Stowe had received from Mr. Jones and Los Angeles sanitation officials. Mr. Elshire and Mr. Hall testified Ms. Kliewer explained why B&V had concluded Ameron’s products were not equal. Mr. Elshire testified Ms. Kliewer also responded to the information he had obtained from Los Angeles. Ms. Kliewer recommended as she had before that the proposed Ameron products be rejected as not equal to Linabond. Later that afternoon Ms. Kliewer e-mailed Mr. Stowe that she hoped she had provided “enough information on our design evaluation and sub-mittal review” and forwarded her original July 12, 2002 memorandum recommending Linabond. (Ex. 6). WRA, relying on B&V, followed its recommendation and the book was closed on t