Free Motion to Stay - District Court of Federal Claims - federal

Case 1:08-cv-00190-SGB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS GILL-SIMPSON, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 08-190C (Judge Braden)

DEFENDANT'S UNOPPOSED MOTION FOR AN EXTENSION OF THE STAY PURSUANT TO 41 U.S.C. § 605(c)(5) Pursuant to 41 U.S.C. § 605(c)(5), Defendant, the United States, respectfully requests a 71-day extension of the stay of proceedings, to and including November 25, 2008, for the Defense Contract Audit Agency ("DCAA") to audit Gill-Simpson, Inc.'s ("GSI") claim and for the contracting officer to issue a decision. The Government's response to GSI's complaint is currently due on September 15, 2008, and the Court previously granted a 120-day stay of proceedings for the purpose. GSI's counsel has authorized Government counsel to state that GSI does not oppose the Court's granting this request. As alleged in the complaint, GSI submitted to the contracting officer an October 9, 2007 claim seeking $926,996.26 for alleged Government caused delays and disruptions of GSI's Simpson's work on contract MDA904-003-C-0259 for the National Security Agency ("NSA"). GSI filed its complaint in this Court

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alleging a deemed denial of its request of claim. Although GSI's Claim was received by the NSA, the contracting officer did not act on it because GSI's claim did not come to his attention until after GSI filed its complaint. Since obtaining a copy of GSI's claim, the contracting officer has undertaken to obtain a DCAA audit of the claim and to assemble documents that will be required for an audit. DCAA has assigned an auditor to perform an audit of the claim. In previously requestign a stay, the Government related that DCAA's auditor could not provide an estimate of when an audit could be completed both because of prior commitments and because of the need to obtain information both from the NSA and from GSI. Although GSI cooperated with the DCAA audit, the process of obtaining the necessary information from GSI was more protracted than counsel had anticipated. Moreover, based upon the information provided, the DCAA auditor has identified technical questions that must be answered prior to DCAA's being able to complete the audit without qualifications NSA has contracted for an expert to respond to DCAA's inquiries and expects to be able to respond to these inquires shortly. The DCAA, now, estimates that it will be able to finalize an audit of GSI claim 30 days after it receives responses to DCAA's outstanding technical questions.

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Under these circumstances, the Government believes that the most efficient resolution of this matter can be achieved by continuing the stay in this matter for an audit of GSI's claim and for a contracting officer's decision. See 41 U.S.C. § 605(c)(5) ("[I]n the event an appeal or suit is so commenced in the absence of a prior decision by the contracting officer, the tribunal concerned may, at its option, stay the proceedings to obtain a decision on the claim by the contracting officer."). Depending upon the conclusions of the DCAA audit, the contracting officer might issue a decision that would obviate any need for further judicial proceedings. Assuming that the audit and contracting officer's decision do not obviate the need for further judicial proceedings, the proposed stay will not delay the ultimate resolution of these proceedings, because the Government would routinely order a DCAA audit of GSI's claim as a preliminary step in its defense of this case. See SCM Corp. v. United States, 645 F.2d 893 (Ct. Cl. 1981) (dismissing complaint with prejudice for contractor's refusal to permit government auditors to make a proper audit of its asserted costs). In the absence of an audit, the contracting officer and Government counsel have very limited information available to respond to the allegations in the complaint. The audit will provide both parties the information necessary to proceed in an efficient manner.

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For the foregoing reasons, the Government respectfully requests that the Court grant this unopposed motion for stay of all proceedings to November 25, 2008. 1 Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director REGINALD T. BLADES, JR. Assistant Director

Should the Court deny this motion, the Government respectfully requests that the Court provide for the Government to file its response to GSI's complaint within 14 days of the Court's order. 4

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OF COUNSEL: ANDREW H. DERANGER Office of General Counsel National Security Agency /s/ John. S. Groat JOHN S. GROAT Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 1100 L Street, N.W. Washington, D.C. 20530 Tele: (202) 616-8260 Fax: (202) 514-7965 [email protected] September 8, 2008 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on September 8, 2008, a copy of foregoing DEFENDANT'S UNOPPOSED MOTION FOR AN EXTENSION OF THE STAY PURSUANT TO 41 U.S.C. § 605(c)(5) was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/John S. Groat

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