Free Motion for Summary Judgment - District Court of Federal Claims - federal

Case 1:04-cv-00473-MBH

Document 64-2

Filed 04/22/2005

Page 1 of 5

IN THE UNITED STATES COURT OF FEDERAL CLAIMS M G CONSTRUCTION, INC. Plaintiff, vs. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 04-00473 (Judge Horn)

JOINT STIPULATIONS OF UNCONTROVERTED FACT 1. The United States, by and through the United States Air Force, issued Solicitation Number F48608-01-R-001 for Project Number GHLN 01-1004, known as the Roof Requirements Contract for the Air Force Space Command at the F.E. Warren Air Force Base, Wyoming. App. 3-69. The Contract was to be a set-aside for 8A minority contractors. 2. Regarding "SCOPE," the solicitation required bidders to "[p]rovide all labor, means, operations, materials, sales tax, accessories and incidentals necessary for performing all operations required for repairing or replacing existing roofing on various base buildings...." App. 15 (1.1 SCOPE A). Regarding scope, the solicitation also instructed

the bidder to "[r]efer to Bid Schedule as furnished by the Base Contracting Office for breakdown of bid items." App. 15 (1.1 SCOPE C). 3. Regarding "STATEMENT OF WORK," the contract informed the bidder that: [t]he work will be performed on non-housing type buildings, such as dormitories, administrative facilities, and industrial buildings, and Military Family Housing units. The work to be performed shall consist of, but is not necessarily limited to, the following principal features: A. Demolition and removal of existing roofing. [...] 1

Case 1:04-cv-00473-MBH

Document 64-2

Filed 04/22/2005

Page 2 of 5

H.

Related or incidental work which is manifestly necessary or customary to finish the project and provide a complete installation.

App. 15 (GENERAL REQUIREMENTS, 1.2 STATEMENT OF WORK). 4. Regarding "DESCRIPTION OF BID ITEMS," the solicitation required the bidder to "[p]rovide a proposal for each of the Bid Items described in the Bid Schedule." App. 25 (GENERAL REQUIREMENTS, 1.38 DESCRIPTION OF BID ITEMS, A). The solicitation informed that "[t]he description for each [bid] item is a `scope description', incomplete and abbreviated, and does not detail the full range of materials and processes needed to complete the required work." Id. Specifically regarding demolition, the solicitation informed that "[a]ll demolition items shall include all industry standard safety and work practices, proper tools, enclosed chutes, dust control, dumpsters, legal disposal of wastes, etc. [...] [d]emolition items to include associated clean up and preparation / cleaning to support succeeding material installation." App. 26 (GENERAL REQUIREMENTS, 1.38 DESCRIPTION OF BID ITEMS, C). Once again, the bidder was instructed to "[r]efer to the Bid Schedule provided by the Government for actual breakdown of Bid Items." Id. at D. 5. When demolishing an existing BURS roof, first you have to remove the aggregate surfacing (if any), then the multiple plys of the roofing membrane, then the insulation. The aggregate must be removed so that the exposed plys of membrane can be saw cut for removal. App. 46-48 (describing the layers installed during BURS installation); App. 90 (Supplemental Declaration of Miguel Garcia, ¶2). 6. The solicitation required bidders to complete "Part I - The Schedule, Section B, Supplies or Services and Prices/Costs." App. 3. The Schedule required bidders to provide a 2

Case 1:04-cv-00473-MBH

Document 64-2

Filed 04/22/2005

Page 3 of 5

"UNIT PRICE" per "SF" (square foot) for the Contract Line Items ("CLIN") "Remove Aggregate Surfacing." Id. On the Schedule, the United States estimated the quantity of aggregate surfacing that might need to be removed at "200" SF and included such a figure in CLIN 0001AA. Id.. 7. For contract line item number 0001AA "Remove Aggregate Surfacing," M. G. Construction bid $1.50 per SF. App. 1-3. 8. The Contract Bidding Schedule called for M.G. Construction to propose prices for other demolition tasks that included "Remove Underlayment/ Vapor Barrier" (CLIN # 0001AH), "Remove Rigid Insulation (2" thick)" (CLIN # 0001AF), and "Remove Metal Fascia/Flashing" (CLIN # 0001AJ). App. 3. For CLIN # 0001AC, "Remove BURS (5ply max) & 2" Insulation (2" Mopped)" M.G. Construction bid $.80 per square foot. Id. The estimated quantity for this CLIN was 23,333 square feet. Id. 9. Section 07510 of the Contract, the specification for the installation of "Built-Up Roofing Systems," included: "assembly of components consisting of the underlayment and insulation as applicable, and roofing membrane, final surfacing, bituminous and metal flashings, and all related parts necessary to complete the assembly." App. 42. Also in Section 07510, under "System Description" it described a Built-Up Roofing System as a "four ply asphalt membrane system with insulation, and aggregate surfacing." Id. Also in Section 07510, in describing the construction of a roofing system, the contract specified that, "[t]he entire roofing system, excluding aggregate surfacing, shall be finished in one operation . . . ." App. 46. Further on in Section 07510, the contract described the application of various parts of the roof, including a section for aggregate surfacing. Id.

3

Case 1:04-cv-00473-MBH

Document 64-2

Filed 04/22/2005

Page 4 of 5

48. 10. The Contract specified that "[t]he Government will identify work to be accomplished by the Delivery Order method." App. 16. Delivery orders placed against the Contract included CLIN 0001AC and did not include CLIN 0001AA. App. 70-89. 11. On June 29, 2001, the United States, by and through the United States Air Force, awarded M. G. Construction, Inc. the contract, numbered F48608-01-D-0008, to perform the roofing work at F.E. Warren Air Force Base.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director s/James M. Kinsella JAMES M. KINSELLA Deputy Director s/Joseph A. Yazbeck JOSEPH A. YAZBECK Yazbeck, Cloran & Hanson, LLC 1300 S.W. Fifth Avenue Portland, OR 97201-5617 Attorney for Plaintiff s/James D. Colt JAMES D. COLT Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, NW Washington, D.C. 20530 Attorneys for Defendant

April 22, 2005

4

Case 1:04-cv-00473-MBH

Document 64-2

Filed 04/22/2005

Page 5 of 5

CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of April, 2005, a copy of the foregoing JOINT STIPULATIONS OF UNCONTROVERTED FACT was field electronically. I understand that notice of this filing will be sent to all parties of record by operation of the Court's electronic filing system. s/ Joseph A. Yazbeck, Jr.

5