Free Motion for Summary Judgment - District Court of Delaware - Delaware

Case 1 :04-cv-01416-JJF Document 70-17 Filed O1/30/2006 Page 1 0f 3
IN THE UNITED STATES DISTRICT COURT _
FOR THE DISTRICT OF DELAWARE _
UNITED STATES OF AMERICA )
for the Use and Benefit 0f` )
JERSEY SHORE AUTOMATION, INC. )
) .
Plaintiff, )
) C. A. N0. O4-1416 (IJF)
vs. ) 1
) 1
1 I CHUGACH SUPPORT SERVICES, INC., et al. . )
I )
Defendants )

EXHIBIT 6 A
TO
BRIEF OF DEFENDANTS
CHUGACH SUPPORT SERVICES, INC. '
AND SAFECO INSURANCE COMPANY OF AMERICA
IN SUPPORT OF SUPPLEMENTAL MOTION
FOR SUMMARY JUDGMENT ON THE COMPLAINT AND THE
COUNTERCLAIM `

if lv ·‘ ' `
I ; ' Case 1 :04-cv-01416-JJF Document 70-17 Filed 01 /30/2006 Page 2 of 3 _
¤ DEPARTMENT OF THE AIR FORCE
. ; `'‘* i 436th Contracting Squadron (AMC) -
E Z··.;,&·g ( 639 Atlantic Street _
. Dover AFB, Delaware 19902-5639 P i
"'"` "' ` 16 March 2004
MEMORANDUM FOR: Mr Dean Clowers -
( Chugach Support Services, Inc.
i 560 East 34 Ave. · _
Anchorage, AK 99503-4196 ·
FROM: 436 CONS/LGCA _ ‘ · , » _
· 639 Atlantic Street i ·
i Dover AFB DE I9902-5639 4 ~
SUBJECT: Contract No. F07603-03-D—0002, Sheet Metal Workers Classification/Email From
I . Jersey Shore Automation Dated March 10, 2004 Forwarded By Chugach Support ~
Services, Inc., and Received on 12 March 2004 _ _ _
1. This office is in receipt of an email which was forwarded to Mr Harold Shaw by Jersey Shore V
Automation, Inc., regarding certified payrolls from Interstate Panel, DO 5019, Repair Munitions ‘
Maintenance Facility 1272. This email, from a subcontractor, was forwarded to this officein
` regular distribution without a Chugach Support Services, Inc.-, (CSS) cover letter or
accompanying explanation. However, this office has made a decision to respond to Jersey
· Shore’s email without documentation from CSS in hope that this will result in less confusion and
further better communications between all parties. `
2. It appears Jersey Shore is attempting to justify its utilization, and that of its subcontractor,
· Interstate Panel, of specific mechanics (carpenters, skilled laborers, plumbers, electricians, sheet (
metal workers, ironworkers, etc.) based on the RS Means® Facilities Construction Cost Data
Guide. The Pulsar Estimating System®, which utilizes the R S Means database, serves as the l
basis for the SABER contract’s unit pricing. PuIsar® shall be utilized as the software program for
‘ estimating purposes. Pulsar is not the basis for any wages paid under the prevailing labor rates,
applicable standards, laws and regulations. I
3. The contract clauses, to include Davis—Bacon Act, Payrolls and Basic Records, Contract Work
Hours and Safety Standards Act, etc., are all requirements under the terms and conditions of your
contract. Given the requirements of your contract, you shall properly classify and pay all (
employees working on subject contract. Consequently, the Pulsar Estimating System has no I
bearing on classifications of mechanics to be used and/or the wages to be propeny and promptly
paid under the SABER contract. (
4. The Government could have specified any number of estimating systems for the SABER ~ ·
contract. Infact, CSS had an opportunity to offer on an “equal" estimating system. CSS , `
participated in intensive negotiations prior toaward of the SABER contract opting to use the
Pulsar Estimating System. (
5. It appears Jersey Shore questions local practice and requires evidence to support the same.
Be advised the wage rates included in the SABER contract, in some instances, are based on
union wages. For example, the wage rate for a carpenter is based on Carpenter's Union Local
626 and the wage rate for a sheet metal worker is based on Sheet Metal Workers’ International
Association Local Union 19. Since the wage rates published and included in your contract are
based on union wages, these, in tum, become area practice. To further substantiate area
practice, according to Ms Keri Williams/Administrator, State of Delaware, Office of Labor Law
Enforcement, all contractors working standing seam metal roofing on Delaware State work are
required to pay sheet metal worker's rate. This is further supported in Delaware Department of
` Labor "classifications" document.
6. This office has been in contact with Mr Don Clagg with Local Union 19, Sheet Metal Workers
International Association. In a letter dated 16 March 2004, Mr Clagg references the collective
JSA 391

~ ° Case 1 :04-cv-01416-JJF Document 70-1. 7 Filed 0.1 /30/2006 Page 3 of 3 _ .
» bargaining agreement and the installation of metal roofs, stating it is clearly defined in our “Scope
I of Work". Furthermore, Mr Clagg notes any other architectural sheet metal work associated with
, metal roohng such as the framing, insulation, flashing, coping, facia,"sofEts, gutters and
Q downspouts shall be the work of sheet metal workers. In closing, Mr Clagg references a
I conversation with Mr Joe Durham, Business Representative of the Carpenter’s Union, Local 626,
noting that Mr Durham is in total agreement with his position regarding standing seam metal
rooting. ‘ _
7.l In the above referenced email, Jersey Shore notes.“If it is Contracting's assertion that iron
workers, sheet metal workers, and/or millwrights are required due to prevailing area practice, then
we would expect 1) evidence of such practices prior to the payment of any additional wages and J
2) an adjustment to the contract price based on the differences in labor rates requested by
Contracting after-the—fact." In response to this, area practice has been clearly established, not
g just over the past few months, but over a period of years. lf personnel are using the tools of the A
I trade for the installation of standing seam metal roofing, framing, flashing, coping, facfa, soffits,
i gutters downspouts, etc., the-proper classification is sheet metal worker, not an unskilled laborer, `
{ skilled laborer, or carpenter. They must be paid sheet metal worker's rate. Additionally, there will
be absolutely no adjustment in the contract price. The solicitation and resulting contract clearly ` . 1
I indicates the basis for estimating and final pricing and the wage rates and classifications to be ` . I
used. Taking this into consideration, all coefficients were negotiated to the mutual agreement of I
i all parties. . ` _ . _
8. ln the attached email Jersey Shore notes Interstate Panel was engaged in the fabrication and
erection of cold-formed metal roofing framing, bracing and trusses during the time frame the I
Contracting Officer questioned. Based on this, along with documented and supported area
practice, Interstate Panel must make restitution to those employees working on the roof for the
difference between what they were paid to the sheet metal workers rate of $44.24, inclusive of
fringe benefits. · T ,
h 9. lf you have questions regardingthis letter, please contact the undersigned at 302-677-5215.
_ lloriginal signedll
I JACQUELINE J. MCGEE .
I Contracting Officer
Attachment: » .
Email from Jersey Shore Dated March 10, 2004
cc: Chugach Support Services, Inc. (local ofnce) ’
JSA 392 "