Aetna Casualty & Surety Company v. United States of America for the Use and Benefit of Gibson Steel Company, Inc.

WISDOM, Circuit Judge:

This case presents the narrow question whether one who furnishes custom-built items to a Miller Act 1 prime contractor is a subcontractor or a materialman within the meaning of the act. On the facts of this case, we hold that the key party, Rogers Fabricating Co., was a material-man. Accordingly we reverse.

Aetna Casualty and Surety Co. is the surety for the prime contractor, Paul Hardeman, Inc.-Morrison-Knudsen Company, Inc., which built the Manned Space Center Building at Merritt Island, Florida. The prime contractor entered into a purchase order contract with Rogers.…