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

Case 1:04-cv-00473-MBH

Document 28-3

Filed 10/19/2004

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

No. 04-cv-00473-MBH (Judge Horn)

PROPOSED FINDINGS 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. See Exhibit 2. 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...." See Exhibit 2 (1.1 SCOPE A). Regarding scope, the solicitation

instructed the bidder to "[r]efer to Bid Schedule as furnished by the Base Contracting Office for breakdown of bid items." See Exhibit 2 (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. [...] H. Related or incidental work which is manifestly necessary or customary to finish the project and provide a complete installation. 1

Case 1:04-cv-00473-MBH

Document 28-3

Filed 10/19/2004

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See Exhibit 2 (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." See Exhibit 2 (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. at C. 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." Id. at D. 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. The solicitation required bidders to complete "Part I - The Schedule, Section B, Supplies or Services and Prices/Costs." The Schedule required bidders to provide a "UNIT PRICE" per "SF" (square foot) for "Remove Aggregate Surfacing" for "BUR & EPDM" under "Demolition." The gravel must be removed before any of the BUR material is removed. On the Schedule, the United States estimated the quantity of aggregate surfacing that needed to be removed at "200" SF and included such figure in Contract Line Item Number 0001AA. See Exhibit 1; Declaration of Miguel Garcia, ¶3. 6. The United States did not allow a site inspection prior to bidding. See Declaration of Miguel Garcia, ¶5.

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Case 1:04-cv-00473-MBH

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Filed 10/19/2004

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7.

For the contract line item "Remove Aggregate Surfacing," M. G. Construction bid $1.50 per SF. See Exhibit 1; Declaration of Miguel Garcia, ¶4.

8.

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. See Complaint, ¶3; Answer, ¶3.

9.

In 2002, M. G. Construction removed 125,800 SF of aggregate. See Declaration of Miguel Garcia, ¶6; Exhibit 3.

10.

In 2003, M.G. Construction removed 117,300 SF of aggregate. See Declaration of Miguel Garcia, ¶6; Exhibit 3.

11.

In total, M.G. Construction removed 243,100 SF of aggregate. The final amount of aggregate was over 1215 times the estimated amount of 200 SF indicated by the United States in the solicitation. At $1.50/SF, the total amount M.G. Construction earned was $364,650. The United States has failed to pay for any of the aggregate removal. See Declaration of Miguel Garcia, ¶¶5-7; Exhibit 3. DATED this_19th_ day of October, 2004. "s/Joseph A. Yazbeck, Jr." Joseph A. Yazbeck, Jr. YAZBECK, CLORAN & HANSON, LLC 1300 SW 5th Av. Suite 2750 Portland, Oregon 97201 (503) 227-1428 Attorney of Record for Plaintiff

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