Free Stipulation - District Court of Federal Claims - federal


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Case 1:08-cv-00015-MBH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

BURCHICK CONSTRUCTION COMPANY, INC., Plaintiff, v. THE UNITED STATES, Defendant.

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No. 08-15C (Judge Horn)

JOINT STIPULATION OF FACTS AND APPENDIX1 Pursuant to this Court's April 9, 2008 order, the parties jointly and respectfully submit this joint stipulation of facts. 1. On March 15, 2006, the United States Department of Veterans' Affairs ("VA")

issued a Solicitation (the "Solicitation") for Phase I work at the Cemetery of the Alleghenies located in Bridgeville, Pennsylvania (the "Project"). Appendix ("A") 1-525 (copy of Solicitation). 2. The Solicitation states, in pertinent part, that the work on the Project consisted of: site preparation and erosion control; earthwork; grading surface and subsurface drainage; roads and pedestrian paving; columbarium niches; preparation of gravesites for crypts, excavation; crypt placement; backfilling; drainage improvements; landscape planting and turf; signage and site furnishings; irrigation systems; utilities; three committal service shelters; public information center building; administration and maintenance complex." A31.

Due to its large size, the appendix is filed separately, by CD-ROM. An index is attached to the end of this stipulation.

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3.

The Solicitation also stated:

As outlined in Section 02200 1.6 the Contractor must provide a price for rock removal so that if quantities vary from the base amount, a basis for future adjustments has been established. The total cost requested below must be included in Base Bid Item No. 1. ESTIMATED QUANTITY ROCK REMOVAL A25. 4. 5. Burchick bid a "Cost Per CY" price of $45. A530. Section 02200 1.5(B)(2) of the Solicitation, titled "Classification of Excavation," 100 CY COST PER CY $ _______ TOTAL COST $_______

states that "Rock Excavation" shall include: Open Excavation: Removal and disposal of solid, homogeneous, interlocking crystalline material firmly cemented, laminated, or foliated masses or conglomerate deposits that cannot be dislodged and excavated with a late-model, track-mounted loader; rated at not less than 157 kW (210 hp) flywheel power and developing a minimum of 200 kN (45,000 lbf) breakout force; measured according to SAE J-732. A348. 6. Section 02200 1.6 of the Solicitation, titled "Measurement and Payment for Rock

Excavation," provides, in pertinent part: Payment: No separate payment shall be made for rock excavation quantities shown. Contract price and time will be adjusted for overruns or underruns in accordance with Article, DIFFERING SITE CONDITIONS, CHANGES, and CHANGES-SUPPLEMENT of the GENERAL CONDITIONS as applicable. A349.

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7.

On July 17, 2006, the VA accepted Burchick's offer, and on or about July 28,

2006, Burchick was awarded Contract No. VA786A-C-0021 ("Contract"). A526-29. 8. The Contract incorporates, by reference, FAR 52.236-2 ("Differing Site

Conditions"), and FAR 52.243-4 ("Changes"). A116. 9. The Contract includes VAAR 852.236-88 ("Contract Changes -- Supplement),

which provides the additional procedures for requesting and processing changes to the Contract. A112-13. 10. While certain Federal Acquisition Regulations ("FAR") were incorporated into

the Contract, A69-117, FAR Subpart 11.7, "Variation in Quantity," is not one of them. 11. In the process of performing the rock excavation on the Project, Burchick

excavated several thousand cubic yards of "Open Excavation" rock in excess of the VA's 100 cubic yard estimate. A535-39. 12. To compensate Burchick for this excess rock excavation, the VA issued to Central

Office Change Orders ("COCO"), COCO A and COCO B, which made two adjustments to the contract price totaling $362,796. A535-39. Burchick has not billed any of its work to these change orders. 13. Burchick has consistently taken the position that the Contract requires the VA to

pay Burchick $45 per cubic yard for each cubic yard of rock it excavated in excess of the 100 cubic yard estimate. 14. The VA has consistently maintained that the Contract only entitles Burchick to

additional compensation as an adjustment to the contract price for rock excavated in excess of the 100 cubic yard estimate.

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Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON Director s/ Reginald T. Blades, Jr. (by Kirk T. Manhardt) REGINALD T. BLADES, JR. Assistant Director s/ D. Matthew Jameson, III DONALD MATTHEW JAMESON, III Babst, Calland, Clements, Zomnir, PC Two Gateway Center 8th Floor Pittsburgh, PA 15222 Tel. (412) 394-5400 Fax. (412) 586.1038 e-mail: [email protected] s/ Devin A. Wolak DEVIN A. WOLAK Trial Attorney Commercial Litigation Branch Civil Division Department of Justice 1100 L St., N.W. Attn: Classification Unit, 8th Floor Washington, D.C. 20530 Tel. (202) 616-0170 Fax. (202) 305-7644 e-mail: [email protected] Attorneys for Defendant

Attorney for Plaintiff May 2, 2008

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BURCHICK CONSTRUCTION CO., INC. v. UNITED STATES No. 08-15C
APPENDIX TO JOINT STIPULATION OF FACTS FOR PARTIAL CROSS-MOTIONS FOR SUMMARY JUDGMENT

DOCUMENT

PAGE NUMBER

Solicitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A1 Award Letter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A526 Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A528 Burchick's "Bid Items" Sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A530 Central Office Change Order A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A535 Central Office Change Order B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A538

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CERTIFICATE OF FILING I hereby certify that on May 2, 2008, a copy of the foregoing "Joint Stipulation Of Facts And Appendix" 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/ Devin Wolak