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SJC-13407, Russell Metcalf
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and another VBSD group, Inc. and All.
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(door thuds shut)
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Okay, attorney LaSalle, whenever you're ready.
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Thank you, Madam Chief Justice,
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and may it please the court.
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Although the substance of this case focuses on the fairness
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of wages that are paid to hardworking laborers,
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at a structural level, it raises a very simple question.
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May an employer in an agency craft a contract
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that exempts them from a law
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that is meant to constrain them?
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This court's faced that question in other contexts,
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and each time, it has answered no.
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It should do so again here for three reasons.
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First, the prevailing wage-
I don't know
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if that's really the right question.
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I mean, the prevailing wage law, you know,
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it's designed, you've got these public bids
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on these public construction projects, right?
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You don't wanna have the non-union companies
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losing out each, I mean,
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the union companies losing out each time
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'cause they pay their laborers less
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than the non-union companies.
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So you create this wage scale to even the playing field
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so that low bid contracts don't always go
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to non-union contractors.
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This is totally different.
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This is a procurement services, a services contract,
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not for particular public bid
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but for surveying services on multiple projects.
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No one's gonna lose out because their union
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or non-union on this.
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It's a quality issue when you set the prices separately.
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So I don't even look at this as we're dealing
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with apples and oranges here.
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So, your Honor,
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the Prevailing Wage Act is intended
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to protect employees' interest in a fair wage.
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It's meant to protect public bidding contracts
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on construction to level the playing field.
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Construction projects.
Projects.
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Correct, and what we have here
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are two laborers who worked for four and a half years
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on three dozen construction projects.
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We know that from the description of the work
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that they performed from MassDOT's own witness.
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We know that from the language of the contract.
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If you look at the 2012 contract at JA 223,
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it says that it is to support the construction phase
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of bridge and roadway projects
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across the state of Massachusetts.
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So on its plain terms, the statute applies
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to the work that these laborers perform,
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and that is actually the correct inquiry
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is does the Prevailing Wage Act apply?
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We answer that by looking at the work performed
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and not the words of the contract.
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That's the problem. It's the work performed.
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It's not specific to one project,
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which is a problem for you.
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The statute provides for the request
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for proposals to come first,
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and then you negotiate the compensation later,
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which is inconsistent with the prevailing wage law.
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It's for professional services you do
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for quality assessment, not for labor,
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and the compensation is not some schedule
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of the prevailing wage law.
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It's the agency taking a look at what
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is the appropriate pay based on an assessment
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of the professionals.
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So you're dealing with,
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I guess I would quote Justice Kafker, "apples and oranges."
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This just isn't a prevailing wage project.
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This is a contract for professional services,
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and the statute 7C includes,
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"Such professional services
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include construction phase services."
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Your Honor, it does say that in Section 58,
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but there's a very important limiting word.
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When we look at Section 58
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and the portion that you just alluded to,
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it refers to related professional services,
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which means related to what.
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And when you look at-
Surveying.
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You need to do land surveying, mapping.
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Yes, your Honor.
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If those services-
Those surveys.
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If those services are related
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to architectural or engineering services.
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If you look to the title of Section 58 itself,
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it tells you that it's procurement
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of architectural, engineering, and related services.
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So we would agree, and we wouldn't be here
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if the work performed were land surveying work performed
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to support the design phase
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of a public works construction project.
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But based on this record,
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we cannot say that that's an undisputed fact.
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In this case, there are facts from which a jury
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could reach the conclusion that the work performed
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on some or all of the sites was construction work.
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Now, 58, the purpose of that statute-
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There was a contractor on those, right?
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Your client is working alongside people who are part
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of the bidding process for that project, right?
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Correct, your Honor.
It's not
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like we're excluding all surveyors
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from the prevailing wage laws.
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We're just saying when we bid the contract, you know,
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the guys working for those contractors are doing that,
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but this is like the DOT's group
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of who are sort of working alongside them,
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but they're serving a different function.
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They weren't part of the bid.
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They're part of DOT's, you know,
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professional team that works alongside that.
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It just seems to me different.
You know, your Honor,
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I think there are some disputes of fact about that,
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but you did hit on a very interesting point
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that I think is important to recognize,
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which is that DOT could have bid this out
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as part of the construction contracts,
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and, in fact, sometimes it did.
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There's evidence in the record from Paul Tivnan,
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one of the supervisors at MassDOT at JA 606 to 609,
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where he even admits that sometimes that contractor,
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the construction contractor did have their own surveyors
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on the site, and Mr. Metcalf
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and Mr. Thurr did their work for them instead.
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In other words, individuals who were meant
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to be paid the prevailing wage sat on the bench
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while two people were paid a third
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of what they were to do the same work.
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So I think from this factual record,
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it's too difficult to say that it is undisputed
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that the work here-
But the contract
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that we're talking about said that there would be crews
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to provide surveys for roads and bridges,
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and then it said "as needed."
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That's not one project, public project that we think of
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when we think about the prevailing wage law,
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to provide survey for roads and bridges as needed,
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survey crews as needed.
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Yes, your Honor, and two things to know about that.
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First, the place where they were deployed,
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where Mr. Metcalf and Mr. Thurr were deployed
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was on construction sites.
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You know, to the extent any of their work
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may have been deployed to a design phase project
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or to post-construction work,
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then we would agree that that
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would not be prevailing wage eligible.
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But where in this contract,
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some of the work that was actually performed
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is construction work,
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that work should receive the prevailing wage.
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So it's conceivable, your Honor,
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that you could have a contract
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that covers as needed services,
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and some of those services are on a construction site,
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and some of those services are on a pre-construction site.
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Under those circumstances,
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the Prevailing Wage Act requires
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that we pay the prevailing wage
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for prevailing wage eligible work.
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The other thing I would note-
Can I shift you
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to a couple of issues?
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We included this language about strict liability
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in a couple of our decisions was that just dicta?
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Does the legislation itself
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say it's a strict liability statute,
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or is there anything in the legislative history?
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It's odd terminology to appear in a labor statute
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as opposed to a tort statute.
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It does appear in a few
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of the legislative enactments involving labor,
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but the way that the strict liability regime
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is imposed in this case-
No, but does,
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again, we use the word strict liability.
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I understand that. The SJC did that.
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Correct.
Was that based on anything
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in the statute or did we just characterize this
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as a strict liability statute?
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It's based on the fact that the statute says that,
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"whoever shall pay less," in unequivocal words,
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"whoever shall pay less than the prevailing wage
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so established shall be liable."
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That's the basis of strict liability?
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I believe so, your Honor,
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and that's important language because what that does
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is it turns the employer into an efficient enforcer
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of the Prevailing Wage Act.
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When you think about how these contracts are negotiated,
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you have an agency or a municipality
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on one side of the table and an employer on the other.
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The employees, the people who are entitled
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to the protections of this act,
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don't have a seat at the table,
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and so to ensure that their interests are protected,
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imposing strict liability
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on an employer aligns that employer's incentives.
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Here, the actual public entity,
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the Department of Transportation,
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doesn't think it's a prevailing wage contract,
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doesn't include the prevailing wage requirements,
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and the company, which is not bidding on, again,
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a public construction project but on a services contract,
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should know that it prevailing wages
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and should pay those prevailing wages,
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even though they have no idea what they are?
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It just seems like that's punishing
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when the state government
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doesn't even think it's a prevailing wage contract.
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Not at all, your Honor.
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I think that there's two important factors
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to keep in mind here.
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First, as your Honor noted,
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we know from the red briefs in this case
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that DOT made the decision on its own
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that the prevailing wage shouldn't apply,
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but the statute is clear.
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That's not DOT's decision to make.
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If the work to be performed touches a public works project,
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you must ask DLS.
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DLS makes determinations of whether it applies or not.
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Did you ask DLS?
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I'm gonna ask your brother whether DLS has weighed in here,
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but did your clients ask DLS also?
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I mean, DLS is like strangely absent here.
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I would agree that it's strange to see DLS absent.
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You would think that the easiest way to resolve this
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would've been if DLS had issued a determination early on
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in the case.
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I'm not really sure what we should infer from the fact
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that we're now TSJC and we still haven't heard from them,
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but I will note that employees,
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this court has explained in the past,
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do not have the authority to go to DLS
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and ask for a wage determination.
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But we know from the record that DOT can and,
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in fact, must, and we know that employers can,
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if you look in the record at JA 478 to 80-
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So you're forbidden from asking?
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I understand you say they have an obligation,
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but also, we had litigation.
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Did anyone seek to depose them or anything? No.
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Your Honor, it's not trial counsel,
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but to my knowledge, is nothing in the record indicating
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that anyone sought to depose someone from DLS.
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Instead, the court can and should be guided
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by DLS's prior determinations
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in the context of field engineers.
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And he's gonna get up and distinguish that,
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and it's pretty far removed from this, but go ahead.
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Under the DLS opinions that have issued in the past,
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starting with CAT through the ICF Kaiser decisions
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into the 2011 decision,
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DLS has been consistent that the way that you determine
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whether prevailing wage applies is you look
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at the type of work and the phase
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that the public works project is in.
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If it's design phase,
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00:12:24.000 --> 00:12:26.559
then the prevailing wage does not apply.
267
00:12:26.559 --> 00:12:27.720
That we know from CAT.
268
00:12:27.720 --> 00:12:31.020
But if it's construction phase and it's work
269
00:12:31.020 --> 00:12:33.600
that is done in aid of construction,
270
00:12:33.600 --> 00:12:37.530
then that prevailing wage would apply.
271
00:12:37.530 --> 00:12:39.101
Now, I wanna go back,
272
00:12:39.101 --> 00:12:40.740
and I wanna acknowledge something else your Honor said,
273
00:12:40.740 --> 00:12:42.910
which is that it may feel counterintuitive
274
00:12:43.770 --> 00:12:48.770
to hold an employer liable, and I can see that perspective.
275
00:12:50.349 --> 00:12:52.818
The challenge is, though, that's how the statute is written.
276
00:12:52.818 --> 00:12:55.783
The statute imposes liability on whoever fails-
277
00:12:55.783 --> 00:12:57.132
Certainly not how it's been interpreted
278
00:12:57.132 --> 00:13:00.753
by the District Court of Appeals, whatever it's called,
279
00:13:02.249 --> 00:13:03.439
all the federal courts.
280
00:13:03.439 --> 00:13:05.739
The McGrath decisions rule the exact opposite.
281
00:13:06.589 --> 00:13:09.879
So we would be overruling that, which we can, of course,
282
00:13:09.879 --> 00:13:13.659
but it's going certainly against a lot
283
00:13:13.659 --> 00:13:15.462
of the case law out there,
You can-
284
00:13:15.462 --> 00:13:18.154
except for this recent appeals court decision,
285
00:13:18.154 --> 00:13:20.943
which distinguishes 27 from 27F,
286
00:13:20.943 --> 00:13:23.610
which is an interesting distinction.
287
00:13:23.610 --> 00:13:26.040
The court can and should actually overrule McGrath
288
00:13:26.040 --> 00:13:29.040
in its progeny because the core flaw
289
00:13:29.040 --> 00:13:33.060
that led the Superior Court astray here also led the court
290
00:13:33.060 --> 00:13:35.940
and McGrath and those that followed McGrath astray,
291
00:13:35.940 --> 00:13:39.540
and the issue is the strict liability regime
292
00:13:39.540 --> 00:13:41.520
applies regardless of the intent,
293
00:13:41.520 --> 00:13:45.450
regardless of why an employer failed to pay,
294
00:13:45.450 --> 00:13:46.440
and we know that because,
295
00:13:46.440 --> 00:13:49.040
as the Superior Court held earlier in the case, the-
296
00:13:49.890 --> 00:13:51.843
That's a different issue, I guess.
297
00:13:53.527 --> 00:13:54.870
You know, once it is determined
298
00:13:54.870 --> 00:13:57.363
that the Prevailing Wage Act controls,
299
00:13:58.384 --> 00:14:03.384
then the employer is liable, maybe even if, is it DLS?
300
00:14:06.959 --> 00:14:09.450
Yes.
Doesn't issue a schedule.
301
00:14:09.450 --> 00:14:13.380
My question is when do we determine
302
00:14:13.380 --> 00:14:15.243
when the Prevailing Wage Act applies?
303
00:14:16.077 --> 00:14:18.690
You say it's if it touches construction
304
00:14:18.690 --> 00:14:20.613
during the construction phase.
305
00:14:22.772 --> 00:14:24.592
Why is that the test?
306
00:14:24.592 --> 00:14:26.445
So if I understand your Honor's question,
307
00:14:26.445 --> 00:14:27.360
it's when do we decide whether
308
00:14:27.360 --> 00:14:29.073
to ask about the prevailing wage?
309
00:14:30.034 --> 00:14:31.611
No. When does it apply?
310
00:14:31.611 --> 00:14:34.550
It applies if the work that employees, laborers,
311
00:14:34.550 --> 00:14:38.485
apprentices, et cetera, are performing is construction work.
312
00:14:38.485 --> 00:14:39.930
There's nothing in Section 27
313
00:14:39.930 --> 00:14:41.970
that conditions its applicability
314
00:14:41.970 --> 00:14:44.673
on the words of a contract or on-
315
00:14:45.899 --> 00:14:48.300
So here, you know, they say it's consulting work,
316
00:14:48.300 --> 00:14:50.040
you know, and it was, you know, not bid by project.
317
00:14:50.040 --> 00:14:55.040
It was instead the request for proposal was related
318
00:14:55.050 --> 00:14:58.590
to the qualifications of the various vendors
319
00:14:58.590 --> 00:15:00.153
who were vying for this,
320
00:15:01.604 --> 00:15:04.923
not based on total cost of the project.
321
00:15:06.028 --> 00:15:08.280
Correct, your Honor, but-
Why is that not the test?
322
00:15:08.280 --> 00:15:10.980
As the court noted in Tomei,
323
00:15:10.980 --> 00:15:13.740
one of the cases that BSC cites,
324
00:15:13.740 --> 00:15:17.310
nothing in Section 27 requires that the bidding process
325
00:15:17.310 --> 00:15:20.670
be a low bid basis for the prevailing wage to apply,
326
00:15:20.670 --> 00:15:23.280
and that's because it turns on the type of work done.
327
00:15:23.280 --> 00:15:26.490
They also noted that nothing in the Prevailing Wage Act
328
00:15:26.490 --> 00:15:30.145
requires a specific citation to a specific rule,
329
00:15:30.145 --> 00:15:32.276
and that's why the citation of Section 58
330
00:15:32.276 --> 00:15:35.070
in the later of the two contracts doesn't carry
331
00:15:35.070 --> 00:15:37.110
as much water as I think it appears it might
332
00:15:37.110 --> 00:15:38.163
from the red briefs.
333
00:15:39.953 --> 00:15:42.051
I mean, couldn't you have two surveyors?
334
00:15:42.051 --> 00:15:44.107
The Commonwealth may want its own surveyor
335
00:15:44.107 --> 00:15:45.960
as well as the contractor
336
00:15:45.960 --> 00:15:49.860
because we don't want the contractor to go build on places
337
00:15:49.860 --> 00:15:52.979
that he or she's not supposed to build, right?
338
00:15:52.979 --> 00:15:55.080
So we're gonna have our own surveyor double checking
339
00:15:55.080 --> 00:15:57.680
and making sure our people stay within their bounds.
340
00:15:58.719 --> 00:16:00.362
We don't want somebody who works
341
00:16:00.362 --> 00:16:03.093
for the construction company making those calls.
342
00:16:04.281 --> 00:16:07.028
So even though they're both working at the same place,
343
00:16:07.028 --> 00:16:09.886
they may be performing different functions.
344
00:16:09.886 --> 00:16:12.368
One's checking to make sure you
345
00:16:12.368 --> 00:16:16.173
don't go build the building in the wrong place, right?
346
00:16:17.491 --> 00:16:20.328
I think so, and you could have those circumstances.
347
00:16:20.328 --> 00:16:21.810
I think the challenge here is that there
348
00:16:21.810 --> 00:16:23.880
are factual disputes that would preclude us
349
00:16:23.880 --> 00:16:27.393
from saying definitively, that it is undisputed,
350
00:16:28.323 --> 00:16:29.550
that the work that Mr. Metcalf and Mr. Thurr
351
00:16:29.550 --> 00:16:34.408
were doing was construction, was quality assurance work.
352
00:16:34.408 --> 00:16:36.330
If, for example, the only sites that they worked on
353
00:16:36.330 --> 00:16:40.439
were post-construction, right, or design phase,
354
00:16:40.439 --> 00:16:42.810
then sure the prevailing wage wouldn't apply to that work.
355
00:16:42.810 --> 00:16:45.720
But as BSC noted in its summary judgment brief,
356
00:16:45.720 --> 00:16:47.790
in this case on these facts,
357
00:16:47.790 --> 00:16:49.710
it is a fact-intensive inquiry
358
00:16:49.710 --> 00:16:52.540
as to which work the plaintiffs performed
359
00:16:53.400 --> 00:16:55.713
that should garner the prevailing wage.
360
00:16:57.726 --> 00:16:59.433
With those disputes,
361
00:17:00.302 --> 00:17:01.530
summary judgment should not have entered
362
00:17:01.530 --> 00:17:04.170
but for the error of placing dispositive weight
363
00:17:04.170 --> 00:17:06.450
on the language of the contracts instead of looking to-
364
00:17:06.450 --> 00:17:08.550
Right, we do get to that other issue,
365
00:17:08.550 --> 00:17:11.460
which, I mean, DONIS only matters
366
00:17:11.460 --> 00:17:14.730
if 7C doesn't answer to the question,
367
00:17:14.730 --> 00:17:19.201
and then we have to figure out what are the implications,
368
00:17:19.201 --> 00:17:23.493
as you referenced, of the no schedule.
369
00:17:25.522 --> 00:17:30.522
And I guess what I'd say is why isn't DONIS distinguishable,
370
00:17:30.625 --> 00:17:35.148
that is 27F dealing with a specific type of,
371
00:17:35.148 --> 00:17:37.023
you know, rental equipment vehicles?
372
00:17:38.467 --> 00:17:42.123
And we've got a long line of cases now,
373
00:17:43.333 --> 00:17:47.223
admittedly the seminal cases, appellate division case,
374
00:17:48.070 --> 00:17:49.330
but there's so many cases
375
00:17:49.330 --> 00:17:50.688
from the United States District Court
376
00:17:50.688 --> 00:17:52.522
for District of Massachusetts,
377
00:17:52.522 --> 00:17:57.522
They just didn't cite to the case in the appellate division.
378
00:17:57.690 --> 00:18:00.445
They did the work and analyzed it
379
00:18:00.445 --> 00:18:03.213
and said that it matters,
380
00:18:04.446 --> 00:18:07.170
and there's no obligation if it's not included.
381
00:18:07.170 --> 00:18:08.639
So, your Honor,
382
00:18:08.639 --> 00:18:10.643
I hear a couple things in that question to address.
383
00:18:10.643 --> 00:18:13.233
The first is the line of cases,
384
00:18:13.233 --> 00:18:14.100
and what's interesting is we've talked
385
00:18:14.100 --> 00:18:15.990
about the appellate division case a couple times.
386
00:18:15.990 --> 00:18:17.370
That really got the ball rolling
387
00:18:17.370 --> 00:18:19.233
because when you look at every case,
388
00:18:20.539 --> 00:18:21.372
when you look at every case
389
00:18:21.372 --> 00:18:23.470
that's cited in support of the rule,
390
00:18:23.470 --> 00:18:24.303
that the language of the contract
391
00:18:24.303 --> 00:18:26.160
should trump the work actually performed,
392
00:18:26.160 --> 00:18:28.150
all of them cite back to McGrath
393
00:18:29.121 --> 00:18:31.119
with the exception I think one which cites Debronski,
394
00:18:31.119 --> 00:18:31.952
which cites to McGrath.
395
00:18:31.952 --> 00:18:35.400
So it really all flows from that one single case,
396
00:18:35.400 --> 00:18:39.570
which, again, like I said, it ignores the key role
397
00:18:39.570 --> 00:18:42.180
that the strick liability regime plays in the statute,
398
00:18:42.180 --> 00:18:44.580
which is ensuring that somebody at the negotiating table
399
00:18:44.580 --> 00:18:48.150
has interests aligned with the employees
400
00:18:48.150 --> 00:18:51.265
and is thus incentivized to ask,
401
00:18:51.265 --> 00:18:54.600
"Hey, DOT, do you think that we should ask
402
00:18:54.600 --> 00:18:56.534
about a prevailing wage?"
403
00:18:56.534 --> 00:18:59.590
Or incentivized as we see at JA 478
404
00:19:00.465 --> 00:19:01.770
to go ask DLS themselves,
405
00:19:01.770 --> 00:19:04.473
or as we see in Andrews and Kennedy,
406
00:19:05.417 --> 00:19:08.493
to pay the prevailing wage on prevailing wage eligible work,
407
00:19:08.493 --> 00:19:11.010
even if the contract is silent on it.
408
00:19:11.010 --> 00:19:16.010
There are a number of ways to ensure that the interests
409
00:19:17.670 --> 00:19:20.943
of laborers in a fair wage is protected in this process,
410
00:19:21.923 --> 00:19:24.965
but none of them can function if an employer
411
00:19:24.965 --> 00:19:26.872
is not held strictly liable.
412
00:19:26.872 --> 00:19:29.580
And to allow an employer to avoid liability
413
00:19:29.580 --> 00:19:32.718
or responsibility for a Prevailing Wage Act violation,
414
00:19:32.718 --> 00:19:33.840
that even if it didn't cause,
415
00:19:33.840 --> 00:19:37.953
it has the opportunity to remedy or prevent,
416
00:19:39.290 --> 00:19:40.620
would leave laborers with no remedy
417
00:19:40.620 --> 00:19:42.570
because as we know in this case,
418
00:19:42.570 --> 00:19:45.573
they can't sue the DOT because of sovereign immunity.
419
00:19:46.608 --> 00:19:49.080
And so what we have is, you know,
420
00:19:49.080 --> 00:19:52.008
an admission that the amount paid
421
00:19:52.008 --> 00:19:53.610
was one third of the prevailing wage,
422
00:19:53.610 --> 00:19:55.350
and yet no means by which laborers
423
00:19:55.350 --> 00:19:58.110
could vindicate those rights unless they
424
00:19:58.110 --> 00:20:00.300
were hired before and were sitting around
425
00:20:00.300 --> 00:20:03.873
and literally monitoring their boss's contracting process.
426
00:20:04.740 --> 00:20:08.700
And it can't be that the legislature created a statute
427
00:20:08.700 --> 00:20:11.550
that contains a remedy, and yet,
428
00:20:11.550 --> 00:20:13.470
there's no means of accessing that remedy.
429
00:20:13.470 --> 00:20:15.360
And so in a case like this
430
00:20:15.360 --> 00:20:17.992
where there is a colorable dispute of fact
431
00:20:17.992 --> 00:20:19.020
as to what work was actually performed,
432
00:20:19.020 --> 00:20:20.100
whether it was construction,
433
00:20:20.100 --> 00:20:21.630
whether it was quality assurance,
434
00:20:21.630 --> 00:20:24.543
whether it was pre-construction or design phase work,
435
00:20:25.561 --> 00:20:26.880
that's a question that goes to the jury.
436
00:20:26.880 --> 00:20:28.710
Was this prevailing wage eligible work,
437
00:20:28.710 --> 00:20:31.293
and, if so, were they paid properly for it?
438
00:20:32.717 --> 00:20:33.550
The Superior Court,
439
00:20:33.550 --> 00:20:35.670
by jumping straight to the language of the contract,
440
00:20:35.670 --> 00:20:37.530
shortchanged that entire process,
441
00:20:37.530 --> 00:20:38.610
and so on that ground alone,
442
00:20:38.610 --> 00:20:41.580
this case should go back down to follow the proper standard
443
00:20:41.580 --> 00:20:46.503
that's set out in Section 27.
Okay.
444
00:20:47.340 --> 00:20:49.013
Thank you very much.
Thank you, your Honor.
445
00:20:52.593 --> 00:20:53.426
Attorney Burwood.
446
00:20:56.797 --> 00:21:00.150
Is it the work done or the words of the contract?
447
00:21:00.150 --> 00:21:02.348
Good afternoon, your Honor. May it please the court.
448
00:21:02.348 --> 00:21:05.193
(everyone laughs)
449
00:21:05.193 --> 00:21:06.976
Jonathan Burwood for the defendant's BSC Group
450
00:21:06.976 --> 00:21:08.027
and David Hayes.
451
00:21:08.027 --> 00:21:09.030
Justice Lowy, I appreciate the question,
452
00:21:09.030 --> 00:21:11.282
and it follows up on a question
453
00:21:11.282 --> 00:21:13.132
that Justice Wendlandt asked earlier.
454
00:21:14.065 --> 00:21:17.182
So what the plaintiffs offer to the court
455
00:21:17.182 --> 00:21:19.189
is that it's the work done, okay?
456
00:21:19.189 --> 00:21:21.502
They say that the trigger for prevailing wage
457
00:21:21.502 --> 00:21:22.620
is what work is being done.
458
00:21:22.620 --> 00:21:25.443
That is not what the statute says, your Honor, okay?
459
00:21:25.443 --> 00:21:29.400
149, Section 27, the third sentence talks about the fact
460
00:21:29.400 --> 00:21:32.370
that the start of the application,
461
00:21:32.370 --> 00:21:35.370
when is the application of the prevailing wage determined?
462
00:21:35.370 --> 00:21:39.210
It's determined prior to the contract being let, okay?
463
00:21:39.210 --> 00:21:42.810
Section 27 requires that prior to awarding a contract
464
00:21:42.810 --> 00:21:44.790
for the construction of public works,
465
00:21:44.790 --> 00:21:48.626
the agency shall submit to the commissioner
466
00:21:48.626 --> 00:21:50.160
of the Department of Labor a list of jobs,
467
00:21:50.160 --> 00:21:51.660
and then it shall request
468
00:21:51.660 --> 00:21:55.023
that the commissioner determine the prevailing wage.
469
00:21:56.122 --> 00:21:57.180
The statute then goes on to talk about the fact
470
00:21:57.180 --> 00:22:00.434
that the agency, in this case MassDOT,
471
00:22:00.434 --> 00:22:02.460
once the prevailing wage has been determined,
472
00:22:02.460 --> 00:22:06.900
that that prevailing wage schedule be included
473
00:22:06.900 --> 00:22:08.460
in the bid solicitation.
474
00:22:08.460 --> 00:22:10.760
All of this happens before the contract, okay?
475
00:22:11.869 --> 00:22:14.304
That is pursuant to the terms of the statute,
476
00:22:14.304 --> 00:22:16.713
but it also serves a particularly practical end,
477
00:22:17.627 --> 00:22:20.254
which is that the amount of wage being paid,
478
00:22:20.254 --> 00:22:21.180
the rate of wage being paid is one
479
00:22:21.180 --> 00:22:22.770
of the most significant drivers
480
00:22:22.770 --> 00:22:25.852
of a cost of a construction project.
481
00:22:25.852 --> 00:22:29.492
And so all of the participants in the construction ecosystem
482
00:22:29.492 --> 00:22:31.792
on these public works jobs need to understand,
483
00:22:32.656 --> 00:22:35.246
is this a prevailing wage job or is it not?
484
00:22:35.246 --> 00:22:36.690
It will set those costs.
485
00:22:36.690 --> 00:22:40.530
That is particularly true given the prevailing wage applies
486
00:22:40.530 --> 00:22:44.790
to contracts for the construction of public works
487
00:22:44.790 --> 00:22:48.210
because contracts for the construction of public works,
488
00:22:48.210 --> 00:22:50.070
your Honor, are publicly bid.
489
00:22:50.070 --> 00:22:51.390
They're low bid work.
490
00:22:51.390 --> 00:22:54.900
So in order to qualify for an award of that work,
491
00:22:54.900 --> 00:22:58.839
a construction contractor must submit the bid,
492
00:22:58.839 --> 00:23:00.600
and that bid must reflect the cost of their job.
493
00:23:00.600 --> 00:23:03.720
So both the terms of the statute and just the practicalities
494
00:23:03.720 --> 00:23:07.781
of how these jobs are led require that the determination,
495
00:23:07.781 --> 00:23:08.689
Justice Lowy,
496
00:23:08.689 --> 00:23:10.770
about whether or not the Prevailing Wage Act apply
497
00:23:10.770 --> 00:23:12.273
be made at the outset.
498
00:23:14.304 --> 00:23:15.570
It would violate the terms of the statute
499
00:23:15.570 --> 00:23:19.517
and it would be impractical to enforce.
500
00:23:19.517 --> 00:23:22.983
It cannot be the case that, a couple years down the road,
501
00:23:23.891 --> 00:23:24.780
you've got hundreds of people working
502
00:23:24.780 --> 00:23:26.220
on this project in the field,
503
00:23:26.220 --> 00:23:28.773
they're performing thousands of different tasks.
504
00:23:29.747 --> 00:23:32.820
Determining whether or not the prevailing wage applies based
505
00:23:32.820 --> 00:23:36.152
on any of those individual tasks being done
506
00:23:36.152 --> 00:23:38.586
by any individual person in that job,
507
00:23:38.586 --> 00:23:39.690
it's not a workable solution.
508
00:23:39.690 --> 00:23:42.060
It wouldn't provide the certainty.
509
00:23:42.060 --> 00:23:43.951
It wouldn't allow parties to get-
510
00:23:43.951 --> 00:23:45.420
They have to monitor every professional
511
00:23:45.420 --> 00:23:49.427
that you or consult you ever had to make sure
512
00:23:49.427 --> 00:23:51.570
that they weren't touching the shovel the wrong way?
513
00:23:51.570 --> 00:23:54.600
Yeah, it certainly would, in my words, your Honor,
514
00:23:54.600 --> 00:23:55.470
I would say it would create a free for all,
515
00:23:55.470 --> 00:23:56.910
and I think that's one of the things here
516
00:23:56.910 --> 00:23:58.578
that needs to be avoided,
517
00:23:58.578 --> 00:24:01.103
and the plaintiffs suggests that that should be the rule,
518
00:24:02.270 --> 00:24:04.350
that any work being done on any public works project needs
519
00:24:04.350 --> 00:24:06.663
to be scrutinized at any given moment.
520
00:24:07.776 --> 00:24:09.510
That is not practical, but most importantly-
521
00:24:09.510 --> 00:24:10.680
I agree with you on that point,
522
00:24:10.680 --> 00:24:13.230
but that doesn't really answer the question
523
00:24:13.230 --> 00:24:16.620
whether this kind of contract would still be subject
524
00:24:16.620 --> 00:24:18.633
to the prevailing wage laws, right?
525
00:24:21.767 --> 00:24:24.453
Okay, so DOT has all these public bid contracts.
526
00:24:25.389 --> 00:24:27.390
It can't just sort of carve out work
527
00:24:27.390 --> 00:24:29.830
that would otherwise be in that contract
528
00:24:30.720 --> 00:24:33.703
and avoid the prevailing wage law.
529
00:24:33.703 --> 00:24:37.140
I mean, they can't say, "Okay, I'm gonna make all the,
530
00:24:37.140 --> 00:24:39.003
you know, truck drivers or whatever,
531
00:24:40.418 --> 00:24:41.854
I'm gonna cut out all the truck drivers
532
00:24:41.854 --> 00:24:42.977
and put them over in here."
533
00:24:44.351 --> 00:24:46.104
I don't know if that answers the question.
534
00:24:46.104 --> 00:24:48.075
I look at this as a different kind of contract,
535
00:24:48.075 --> 00:24:52.735
but I don't think it necessarily removes these contracts
536
00:24:52.735 --> 00:24:54.150
from the prevailing wage if DOT is trying
537
00:24:54.150 --> 00:24:58.681
to carve things out of things that would otherwise be bid
538
00:24:58.681 --> 00:25:02.130
in the contract, right?
So your Honor, again,
539
00:25:02.130 --> 00:25:03.810
with the statutory framework being
540
00:25:03.810 --> 00:25:05.430
that prevailing wage applies only
541
00:25:05.430 --> 00:25:08.747
to contracts for the construction of public works.
542
00:25:08.747 --> 00:25:13.080
Right, but this is a contract for work that's going
543
00:25:13.080 --> 00:25:16.204
to be performed on public works, right?
544
00:25:16.204 --> 00:25:18.360
It is, your Honor.
And it's contract
545
00:25:18.360 --> 00:25:19.620
for work that's gonna be formed
546
00:25:19.620 --> 00:25:21.967
on public construction works.
547
00:25:21.967 --> 00:25:22.950
But I get it's different,
548
00:25:22.950 --> 00:25:26.403
but it's not so obvious that it's, you know,
549
00:25:29.280 --> 00:25:33.030
to me, it's complicated, and I guess one question is,
550
00:25:33.030 --> 00:25:35.820
has the department of whatever it's called, DLS,
551
00:25:35.820 --> 00:25:37.410
what's their name?
Yes, your Honor.
552
00:25:37.410 --> 00:25:38.373
They're not here.
553
00:25:41.874 --> 00:25:42.707
Is there anything in the record indicating
554
00:25:42.707 --> 00:25:45.780
what their position is on this fight?
555
00:25:45.780 --> 00:25:47.820
Your Honor, I'm not aware of anything in the record.
556
00:25:47.820 --> 00:25:50.946
To my knowledge, DLS didn't weigh in on this,
557
00:25:50.946 --> 00:25:52.530
and what I would say is that's reflective of the fact
558
00:25:52.530 --> 00:25:57.450
that MassDOT, the Department of Labor standards,
559
00:25:57.450 --> 00:25:59.400
that this project isn't a secret.
560
00:25:59.400 --> 00:26:00.660
These contracts aren't secret.
561
00:26:00.660 --> 00:26:01.890
There's testimony in the record
562
00:26:01.890 --> 00:26:05.130
that these professional services contracts
563
00:26:05.130 --> 00:26:08.853
are routinely let by MassDOT pursuant to 7C, Section 58.
564
00:26:09.886 --> 00:26:11.850
The fact that they didn't weigh in indicates
565
00:26:11.850 --> 00:26:13.170
that this is not a contract
566
00:26:13.170 --> 00:26:15.402
for the construction of public works.
567
00:26:15.402 --> 00:26:16.727
Therefore, the Prevailing Wage Acts don't apply.
568
00:26:16.727 --> 00:26:17.610
But how do we know they're aware of the,
569
00:26:17.610 --> 00:26:20.044
we know they're aware of these things.
570
00:26:20.044 --> 00:26:21.690
I mean, I have just no idea.
Your Honor,
571
00:26:21.690 --> 00:26:22.950
I suppose it's possible.
572
00:26:22.950 --> 00:26:24.810
The statute actually requires the agency
573
00:26:24.810 --> 00:26:26.580
to request a schedule from DLS.
574
00:26:26.580 --> 00:26:29.248
So there is an argument to be made
575
00:26:29.248 --> 00:26:31.650
that if the schedule is not requested, how do they know?
576
00:26:31.650 --> 00:26:32.790
It's not in the record before us,
577
00:26:32.790 --> 00:26:36.483
but if I could answer a second part of your question,
578
00:26:36.483 --> 00:26:37.830
you know, it's not the case that MassDOT
579
00:26:37.830 --> 00:26:40.530
can simply carve certain public construction activities
580
00:26:40.530 --> 00:26:43.080
away from the Prevailing Wage Act.
581
00:26:43.080 --> 00:26:45.690
How do we know this is not a contract
582
00:26:45.690 --> 00:26:47.724
for the construction of public works,
583
00:26:47.724 --> 00:26:49.422
I think is the way I'd reframe that question,
584
00:26:49.422 --> 00:26:50.255
Go ahead.
and I've cited
585
00:26:50.255 --> 00:26:52.440
to Section 27 in the addition there.
586
00:26:52.440 --> 00:26:55.293
What I'll also say is that, in Massachusetts,
587
00:26:56.151 --> 00:26:58.367
public works project on roads and bridges
588
00:26:58.367 --> 00:27:02.160
are let pursuant to Chapter 30, Section 39M,
589
00:27:02.160 --> 00:27:07.160
and Chapter 30, Section 39M has very specific requirements
590
00:27:07.500 --> 00:27:10.350
about certain provisions content
591
00:27:10.350 --> 00:27:12.570
that must be in those contracts.
592
00:27:12.570 --> 00:27:15.390
One example would be unforeseen site conditions.
593
00:27:15.390 --> 00:27:18.123
Another would be if the owner suspends work.
594
00:27:19.365 --> 00:27:21.915
There's additional statutory language in Chapter 39
595
00:27:23.649 --> 00:27:26.640
that informs the content of a public construction project
596
00:27:26.640 --> 00:27:27.473
for this type of job.
597
00:27:27.473 --> 00:27:31.380
When you look in the record at the two BSC contracts,
598
00:27:31.380 --> 00:27:35.070
those contracts are so clearly not consistent
599
00:27:35.070 --> 00:27:38.910
with Section 30.39M that that's another sort of touchpoint
600
00:27:38.910 --> 00:27:41.340
in terms of identifying how they're different.
601
00:27:41.340 --> 00:27:43.263
And then third, to that point,
602
00:27:44.114 --> 00:27:46.739
on their terms, they referred to the fact
603
00:27:46.739 --> 00:27:47.760
that they're for consulting services.
604
00:27:47.760 --> 00:27:50.310
The second contract actually says it's let pursuant
605
00:27:50.310 --> 00:27:52.500
to 7C Section 58 because the statute
606
00:27:52.500 --> 00:27:54.543
was passed between the two contracts.
607
00:27:55.410 --> 00:27:59.250
But the other thing is that there's language
608
00:27:59.250 --> 00:28:02.440
in the contract itself that talks about the fact
609
00:28:04.447 --> 00:28:07.020
that BSC is gonna be providing this field survey work
610
00:28:07.914 --> 00:28:11.166
for the implementation of the construction component.
611
00:28:11.166 --> 00:28:12.480
The plain reading of that contract indicates
612
00:28:12.480 --> 00:28:15.600
that there is this work being done by BSC essentially
613
00:28:15.600 --> 00:28:19.560
to support MassDOT so that the construction work can happen.
614
00:28:19.560 --> 00:28:21.360
And then lastly, your Honor, I'd say,
615
00:28:21.360 --> 00:28:24.120
though not a part of the record, as you pointed out earlier,
616
00:28:24.120 --> 00:28:27.761
every single one of these projects that we're talking about,
617
00:28:27.761 --> 00:28:30.270
there was a Section 30.39M contract,
618
00:28:30.270 --> 00:28:32.913
that a general contractor, you know,
619
00:28:33.982 --> 00:28:36.150
issued a bid for, it was publicly let,
620
00:28:36.150 --> 00:28:39.693
and that contract is governed by the Prevailing Wage Act.
621
00:28:41.156 --> 00:28:43.440
There is a distinction made in Section 27
622
00:28:43.440 --> 00:28:47.043
where some contracts are prevailing wage and some are not,
623
00:28:48.196 --> 00:28:50.173
and would offer to you that for all the evidence
624
00:28:50.173 --> 00:28:52.046
in the record and all the arguments made
625
00:28:52.046 --> 00:28:55.053
that these contracts are simply not subject to Section 27.
626
00:28:55.896 --> 00:28:58.896
They are not contracts for the construction of public works.
627
00:29:03.591 --> 00:29:06.850
Your Honor, the last point I wanna make is just that-
628
00:29:06.850 --> 00:29:08.160
Can I ask about the strict liability language
629
00:29:08.160 --> 00:29:09.303
that we put in?
630
00:29:10.541 --> 00:29:12.293
Is there anything in the statutes, I mean,
631
00:29:13.157 --> 00:29:16.308
that call it a strict liability statute,
632
00:29:16.308 --> 00:29:18.058
or is this just something we added?
633
00:29:21.432 --> 00:29:24.750
'Cause it is odd language.
Your Honor,
634
00:29:24.750 --> 00:29:27.717
I agree with the attorney LaSalle that, to my knowledge,
635
00:29:27.717 --> 00:29:29.310
that the strict liability language is not in the statute.
636
00:29:29.310 --> 00:29:32.103
It's judicial interpretation.
Interpretation, okay.
637
00:29:32.103 --> 00:29:33.145
But on that point,
638
00:29:33.145 --> 00:29:34.620
I guess what I'd say is that there's a tremendous amount
639
00:29:34.620 --> 00:29:37.761
about strict liability in the plaintiff's briefs,
640
00:29:37.761 --> 00:29:39.540
and my reaction to that, both in our briefs and here,
641
00:29:39.540 --> 00:29:44.441
is strict liability simply means if you violate the statute,
642
00:29:44.441 --> 00:29:46.699
your reason for violating it does not matter.
643
00:29:46.699 --> 00:29:47.693
You're liable.
644
00:29:47.693 --> 00:29:50.640
What plaintiffs assume and what I think I
645
00:29:50.640 --> 00:29:53.700
wanna get across very clearly is that the statute must apply
646
00:29:53.700 --> 00:29:56.682
in the first place in order for strict liability.
647
00:29:56.682 --> 00:29:57.993
I think we understand that.
648
00:29:57.993 --> 00:29:59.735
It's just our question is, okay,
649
00:29:59.735 --> 00:30:02.292
so if we ruled against you on the first point,
650
00:30:02.292 --> 00:30:04.300
McGrath would still rule in favor of you
651
00:30:06.463 --> 00:30:07.403
on the second point,
652
00:30:08.456 --> 00:30:09.570
and that's where the strict liability stuff
653
00:30:09.570 --> 00:30:14.570
becomes meaningful because your reason
654
00:30:15.596 --> 00:30:18.183
would be that you didn't get the bid,
655
00:30:18.183 --> 00:30:20.340
I mean, you didn't get the list of, you know, wages,
656
00:30:20.340 --> 00:30:23.190
but if it's a strict liability statute,
657
00:30:23.190 --> 00:30:25.473
that goes out the window, doesn't it?
658
00:30:29.426 --> 00:30:30.300
This is not a technicality case, your Honor.
659
00:30:30.300 --> 00:30:32.141
I think what you're getting as BSC
660
00:30:32.141 --> 00:30:33.349
is not taking the position that,
661
00:30:33.349 --> 00:30:35.953
because they didn't get the wage, it's not applicable.
662
00:30:35.953 --> 00:30:37.320
Well, I'm trying to figure out whether you win
663
00:30:37.320 --> 00:30:42.320
on which issues if you win on, and, to me,
664
00:30:43.881 --> 00:30:47.190
the strict liability thing complicates McGrath.
665
00:30:47.190 --> 00:30:50.060
If this is a strict liability statute,
666
00:30:50.060 --> 00:30:52.470
McGrath may not have been correctly decided,
667
00:30:52.470 --> 00:30:56.113
but I'm not sure it's a strict liability statute,
668
00:30:56.113 --> 00:30:58.830
so that's why I was focused on that.
669
00:30:58.830 --> 00:31:01.080
The additional way that BSC looks at that also,
670
00:31:01.080 --> 00:31:05.130
your Honor, is that the requirement in Section 27,
671
00:31:05.130 --> 00:31:07.020
that MassDOT in this case,
672
00:31:07.020 --> 00:31:09.423
that they issue a prevailing wage schedule,
673
00:31:10.411 --> 00:31:12.090
that's an indicia about whether or not this
674
00:31:12.090 --> 00:31:15.120
is a prevailing wage contract.
675
00:31:15.120 --> 00:31:18.240
The fact that they didn't indicates, again, that it is not,
676
00:31:18.240 --> 00:31:20.670
and the McGrath, and as I understand it,
677
00:31:20.670 --> 00:31:22.470
the courts that have interpreted it,
678
00:31:25.076 --> 00:31:25.909
the lower appellate division,
679
00:31:25.909 --> 00:31:27.040
the Superior Court, state court,
680
00:31:28.053 --> 00:31:29.220
those courts have essentially said the requirement
681
00:31:29.220 --> 00:31:32.133
of Section 27 to be prevailing wage eligible,
682
00:31:33.090 --> 00:31:34.530
MassDOT must issue this schedule.
683
00:31:34.530 --> 00:31:35.673
If it does not,
684
00:31:37.096 --> 00:31:39.126
this contract is not prevailing wage eligible.
685
00:31:39.126 --> 00:31:40.500
I don't think that's the only argument here, your Honor,
686
00:31:40.500 --> 00:31:43.642
but it is certainly the one focused on by the trial court,
687
00:31:43.642 --> 00:31:44.475
and-
So I wanna focus
688
00:31:44.475 --> 00:31:46.023
on what happens if you lose for a second.
689
00:31:47.075 --> 00:31:48.555
(Chief Justice Budd chuckles)
690
00:31:48.555 --> 00:31:50.449
If you could cogently tell me
691
00:31:50.449 --> 00:31:54.010
why contractual indemnification and unjust enrichment
692
00:31:55.550 --> 00:31:57.450
would apply as your cross claim.
693
00:31:57.450 --> 00:31:58.283
Given my time, your Honor,
694
00:31:58.283 --> 00:31:59.310
I'll focus on the better argument,
695
00:31:59.310 --> 00:32:01.110
which would be the unjust enrichment, okay?
696
00:32:01.110 --> 00:32:03.990
So here, we've got a contract with MassDOT.
697
00:32:03.990 --> 00:32:06.930
MassDOT and BSC agree to a certain rate of wage.
698
00:32:06.930 --> 00:32:09.330
MassDOT ultimately pays that rate of wage,
699
00:32:09.330 --> 00:32:11.160
and BSC pays that rate of wage
700
00:32:11.160 --> 00:32:13.053
to the plaintiffs in this case, okay?
701
00:32:13.950 --> 00:32:17.315
If, in fact, it is determined by your Honors
702
00:32:17.315 --> 00:32:18.960
that the prevailing wage should have been paid,
703
00:32:18.960 --> 00:32:21.420
there's no rationale for BSC.
704
00:32:21.420 --> 00:32:23.144
We are the middle man.
705
00:32:23.144 --> 00:32:24.030
We are simply passing the money,
706
00:32:24.030 --> 00:32:27.573
the wage rate from MassDOT to the employees.
707
00:32:29.299 --> 00:32:31.680
The unjust enrichment would be evident
708
00:32:31.680 --> 00:32:34.530
in the fact that if BSC, my client,
709
00:32:34.530 --> 00:32:38.400
is forced to pay the enhanced rate of prevailing wage
710
00:32:38.400 --> 00:32:39.810
and cannot recover that money
711
00:32:39.810 --> 00:32:42.570
from its contracting partner MassDOT,
712
00:32:42.570 --> 00:32:45.090
there's a restitution interest that is not met there
713
00:32:45.090 --> 00:32:46.350
that simply did not bargain
714
00:32:46.350 --> 00:32:49.560
for having any independent exposure to the plaintiffs.
715
00:32:49.560 --> 00:32:51.810
We simply agreed to offer these services
716
00:32:51.810 --> 00:32:54.000
at the rate agreed to by MassDOT,
717
00:32:54.000 --> 00:32:56.610
keeping in mind that MassDOT determined initially this
718
00:32:56.610 --> 00:32:58.670
is not a prevailing rate job.
719
00:32:58.670 --> 00:32:59.730
It was not our determination,
720
00:32:59.730 --> 00:33:02.223
and under unjust enrichment, your Honor,
721
00:33:03.063 --> 00:33:07.029
the restitution interest to BSC would guarantee
722
00:33:07.029 --> 00:33:10.470
that somehow, MassDOT would not be unjustly enriched but,
723
00:33:10.470 --> 00:33:13.893
more importantly, that BSC would be made whole here.
724
00:33:16.050 --> 00:33:17.580
Okay. Thank you.
If there
725
00:33:17.580 --> 00:33:19.463
are no further questions, thank you, your Honor.
726
00:33:23.605 --> 00:33:24.438
And Attorney Isley.
727
00:33:27.350 --> 00:33:30.715
Good afternoon, your Honors, and may it please the court.
728
00:33:30.715 --> 00:33:33.413
Kate Isley, assistant attorney general on behalf of MassDOT.
729
00:33:35.763 --> 00:33:38.153
The BSC contracts, as your Honors have noted,
730
00:33:39.702 --> 00:33:41.880
were for professional services and governed
731
00:33:41.880 --> 00:33:46.880
in our view by Chapter 7C Section 58.
732
00:33:47.374 --> 00:33:49.124
Even the one of them predated 58?
733
00:33:50.314 --> 00:33:53.763
And prior to the enactment of Section 58,
734
00:33:56.127 --> 00:33:59.027
the longstanding distinction that has been made by the DLS
735
00:33:59.889 --> 00:34:02.457
that distinguishes construction contracts
736
00:34:02.457 --> 00:34:03.510
from services contracts.
737
00:34:03.510 --> 00:34:06.730
Is that the 1995 one you're referring to?
738
00:34:06.730 --> 00:34:09.848
It is the central artery opinion from 1995
739
00:34:09.848 --> 00:34:12.188
but also the Lancome letter opinions
740
00:34:12.188 --> 00:34:14.043
that the appellants have cited to.
741
00:34:16.479 --> 00:34:17.312
Those are...
742
00:34:20.329 --> 00:34:22.797
We can find them.
Yeah. They're in the record.
743
00:34:22.797 --> 00:34:24.690
I don't have it right here, but in the language
744
00:34:24.690 --> 00:34:28.060
where the Lancome and the centrally artery opinions
745
00:34:29.134 --> 00:34:32.343
specifically apply to land surveyors,
746
00:34:33.562 --> 00:34:35.343
and in the Lancome opinion letter,
747
00:34:37.212 --> 00:34:38.594
it says that land surveyors
748
00:34:38.594 --> 00:34:40.680
shall be paid the prevailing wage if they
749
00:34:40.680 --> 00:34:43.800
are working under a construction contract.
750
00:34:43.800 --> 00:34:46.743
And in this case,
751
00:34:47.590 --> 00:34:50.741
these land surveyors were working under a services contract
752
00:34:50.741 --> 00:34:52.560
to provide quality of servants,
753
00:34:52.560 --> 00:34:57.240
onsite survey expertise for MassDOT over a number of years
754
00:34:57.240 --> 00:35:02.240
in District 3 on various highway and bridge projects.
755
00:35:02.550 --> 00:35:05.340
What do you say about the contention
756
00:35:05.340 --> 00:35:08.253
that that may well be, but it's a factual issue?
757
00:35:10.016 --> 00:35:12.600
I would disagree that it's a factual issue.
758
00:35:12.600 --> 00:35:17.600
Both Section 27 and Section 58 have
759
00:35:19.920 --> 00:35:23.133
in their language references to contracts,
760
00:35:23.968 --> 00:35:27.693
Section 27 relates to general contractors,
761
00:35:29.460 --> 00:35:34.460
you know, putting the prevailing wage schedule
762
00:35:34.574 --> 00:35:35.852
onto the contract.
763
00:35:35.852 --> 00:35:38.685
It is all tied to the construction contract
764
00:35:38.685 --> 00:35:40.685
and the construction particular project.
765
00:35:41.752 --> 00:35:44.643
I would also point your Honor's attention to Section 27,
766
00:35:45.688 --> 00:35:48.910
the carve out that the legislature made for all persons
767
00:35:49.802 --> 00:35:53.793
who transport gravel and fill to a job site,
768
00:35:55.068 --> 00:35:57.360
and for those persons, the language is all persons,
769
00:35:57.360 --> 00:36:00.957
and it says, "All persons shall be paid the prevailing wage,
770
00:36:00.957 --> 00:36:03.990
no matter whether they're under the construction contract,
771
00:36:03.990 --> 00:36:07.697
an independent contract, the owner operated contract."
772
00:36:07.697 --> 00:36:08.730
So I would submit that the legislature knew
773
00:36:08.730 --> 00:36:13.080
how to carve out an exception to whether a laborer
774
00:36:13.080 --> 00:36:17.223
is an employee of the contractor or the general contractor.
775
00:36:18.096 --> 00:36:21.310
So what about the concern that you got the agency
776
00:36:22.690 --> 00:36:26.230
who doesn't wanna pay the prevailing wage
777
00:36:27.067 --> 00:36:28.473
because it'll save money?
778
00:36:29.429 --> 00:36:32.051
You got the employer who's gonna make more money
779
00:36:32.051 --> 00:36:35.846
if they're not paying the prevailing wage,
780
00:36:35.846 --> 00:36:38.340
and they're negotiating a contract,
781
00:36:38.340 --> 00:36:40.833
and the victim is the employee.
782
00:36:42.640 --> 00:36:44.760
Well, I would point your Honors to the landscape
783
00:36:44.760 --> 00:36:47.750
of the statutes and that there
784
00:36:47.750 --> 00:36:49.990
are guardrails on these statutes.
785
00:36:49.990 --> 00:36:51.810
And if you look at the bidding,
786
00:36:51.810 --> 00:36:54.273
the way these types of contracts are bid,
787
00:36:55.163 --> 00:36:58.833
you can see that in Section 58 contracts,
788
00:37:00.100 --> 00:37:01.960
MassDOT cannot even consider price
789
00:37:03.137 --> 00:37:06.303
until after it awards a contract on qualifications,
790
00:37:07.142 --> 00:37:09.792
and that reflects a legislative priority that MassDOT
791
00:37:11.340 --> 00:37:16.340
should really be looking for quality firms whereas,
792
00:37:16.560 --> 00:37:19.800
under Chapter 27, it's low bid.
793
00:37:19.800 --> 00:37:24.065
And of course the prevailing wage would apply to a low bid
794
00:37:24.065 --> 00:37:25.800
because contractors might seek to lower their bid
795
00:37:25.800 --> 00:37:29.220
to win the contract on the backs of the workers.
796
00:37:29.220 --> 00:37:32.103
So that reflects another legislative priority.
797
00:37:33.098 --> 00:37:36.960
Now MassDOT bids construction contracts pursuant
798
00:37:36.960 --> 00:37:40.570
to Section 27 on a regular basis
799
00:37:43.708 --> 00:37:46.241
and seeks the prevailing wage schedule,
800
00:37:46.241 --> 00:37:49.060
and it's incorporated into the construction contract.
801
00:37:49.060 --> 00:37:51.964
This is just not that case. This is MassDOT.
802
00:37:51.964 --> 00:37:53.093
Also I'll point you to-
803
00:37:54.602 --> 00:37:56.595
I guess I thought Justice Lowy's concern
804
00:37:56.595 --> 00:38:01.217
was what if MassDOT and the standards agency,
805
00:38:03.419 --> 00:38:04.252
I'm not saying that this is this case,
806
00:38:04.252 --> 00:38:06.623
but what if they collude and say,
807
00:38:06.623 --> 00:38:08.739
"Hey, we don't wanna pay the prevailing wage"?
808
00:38:08.739 --> 00:38:12.153
"We just wanna get around that law,
809
00:38:12.153 --> 00:38:17.007
and so we're just going to call it a Section 58 contract."
810
00:38:19.854 --> 00:38:22.077
What's preventing other than, you know,
811
00:38:22.077 --> 00:38:26.043
everybody's good faith in doing that?
812
00:38:28.424 --> 00:38:30.900
Section 58 only applies to six types
813
00:38:30.900 --> 00:38:32.613
of professional services.
814
00:38:34.335 --> 00:38:35.168
It's architects,
815
00:38:38.084 --> 00:38:40.394
There's another layer there.
engineers, land surveyors,
816
00:38:40.394 --> 00:38:41.227
landscape architecture,
817
00:38:41.227 --> 00:38:44.063
environmental science, planning and program management,
818
00:38:44.063 --> 00:38:46.050
and the individuals employed by those six types
819
00:38:46.050 --> 00:38:51.050
of professions, and then the professional services work
820
00:38:51.060 --> 00:38:54.870
must relate, must be logically related to the work
821
00:38:54.870 --> 00:38:57.573
that those types of professionals do.
822
00:38:58.511 --> 00:39:02.430
And Section 58 also explicitly provides that land surveying
823
00:39:02.430 --> 00:39:06.000
is one of those professional services,
824
00:39:06.000 --> 00:39:09.390
and land surveying specifically during construction phases
825
00:39:09.390 --> 00:39:14.390
of MassDOT's projects is explicitly provided in Section 58.
826
00:39:16.291 --> 00:39:17.520
So if we're looking at contracts
827
00:39:17.520 --> 00:39:20.913
after the enactment of Section 58,
828
00:39:27.193 --> 00:39:31.440
MassDOT would be permitted to bid these contracts pursuant
829
00:39:31.440 --> 00:39:32.670
to that statute.
830
00:39:32.670 --> 00:39:35.313
Prior to Section 58,
831
00:39:38.202 --> 00:39:42.364
MassDOT still had a basis under DLS guidance
832
00:39:42.364 --> 00:39:46.425
and also Section 27 because, under Section 27,
833
00:39:46.425 --> 00:39:49.083
that is clearly applicable to construction contracts.
834
00:39:51.909 --> 00:39:52.770
And the facts in this case just
835
00:39:52.770 --> 00:39:57.439
do not support any collusion, and it's conceivable.
836
00:39:57.439 --> 00:39:58.272
Yeah, I'm not suggesting it.
It's conceivable
837
00:39:58.272 --> 00:39:59.430
that could happen.
Yeah,
838
00:39:59.430 --> 00:40:02.430
so given that conceptual possibility,
839
00:40:02.430 --> 00:40:06.633
what is stopping this?
840
00:40:07.484 --> 00:40:10.043
'Cause that is I think essentially what the claim is here.
841
00:40:11.213 --> 00:40:15.130
There's nothing to stop MassDOT and the contracting agency
842
00:40:16.123 --> 00:40:18.938
and the vendor from colluding
843
00:40:18.938 --> 00:40:20.303
to avoid the Prevailing Wage Act.
844
00:40:22.214 --> 00:40:26.853
Well, I can say that Section 28 has been enacted
845
00:40:26.853 --> 00:40:28.879
in law for 10 years, and MassDOT has not-
846
00:40:28.879 --> 00:40:30.363
58?
58, sorry.
847
00:40:31.273 --> 00:40:34.410
58 has been enacted since 2013, and MassDOT
848
00:40:34.410 --> 00:40:38.220
has been bidding its professional services contracts
849
00:40:38.220 --> 00:40:41.253
the same way since then and prior to then.
850
00:40:42.557 --> 00:40:45.025
And if I can point you to the John Anthony affidavit,
851
00:40:45.025 --> 00:40:45.960
who is-
Can I ask one other?
852
00:40:45.960 --> 00:40:48.270
Are you representing the Department of Labor Services
853
00:40:48.270 --> 00:40:49.290
on this?
854
00:40:49.290 --> 00:40:52.020
Are they joined in this brief in any way or-
855
00:40:52.020 --> 00:40:53.460
They're not.
And can we count
856
00:40:53.460 --> 00:40:56.370
on not getting a future case
857
00:40:56.370 --> 00:40:58.773
where DLS takes the opposite position,
858
00:40:59.991 --> 00:41:02.670
or have they not been consulted on this?
859
00:41:02.670 --> 00:41:04.520
They are not involved in this case,
860
00:41:05.483 --> 00:41:09.060
but based on the distinctions DLS has made
861
00:41:09.060 --> 00:41:11.613
in their opinions,
862
00:41:15.652 --> 00:41:18.963
it's consistent with MassDOT's longtime practice.
863
00:41:20.384 --> 00:41:21.682
They're not aware of this brief,
864
00:41:21.682 --> 00:41:25.110
and we've not gotten a letter or anything indicating
865
00:41:25.110 --> 00:41:27.873
that DOS supports this interpretation, right?
866
00:41:29.013 --> 00:41:30.443
One way or the other, no.
Zero. Okay.