November 9th, 2007
Certified Question:
"Under W.Va. Code §38-2-39 (2003), is a steel fabricator deemed to be a "subcontractor" where:
A. The steel fabricator enters a fixed-price contract with the general contractor of a public works construction project, pursuant to which the fabricator
i. Agrees to fabricate and deliver structural steel components conforming to the construction project's unique design specifications;
ii. Produces shop drawings for the fabricated steel components based on the project's engineering calculations and design specifications' [sic]
iii. Submits its shop drawings for approval by the project's architect and general contractor before fabricating the structural steel components; and
iv. Delivers the fabricated steel components on a delivery schedule based on construction progress;
B. The steel fabricator performs all physical fabrication processes at its own facility, away from the project site; AND
C. The fabricated steel components are not fungible and not readily marketable without further modification?"
