Free Response to Proposed Findings of Uncontroverted Fact - District Court of Federal Claims - federal

Case 1:07-cv-00884-LJB

Document 24

Filed 07/28/2008

Page 1 of 5

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

SOUTHEAST RESTORATION, INC., d/b/a AFTERDISASTER, Plaintiff, v. THE UNITED STATES Defendant.

) ) ) ) ) ) ) ) ) )

No. 07-884C (Judge Bush)

DEFENDANT'S RESPONSE TO PLAINTIFF'S PROPOSED FINDINGS OF UNCONTROVERTED FACTS 1. Plaintiff AFTERDISASTER is the Awardee of Purchase Orders Numbers 586-C60194, 586-C6-0195, 586-C6-0204, 586-C6-0216 and 586-C6-0218. Plaintiff's Complaint, ¶ 6., December 18th, 2007; Defendant's Answer, ¶ 6., May 30th, 2008. Purchase Order Number 586C6-0194 reserves appropriated funds in the amount of $75,000. Purchase Order Number 586C6-0195 reserves appropriated funds in the amount of $1,500,000. Purchase Order Number 586C6-0204 reserves appropriated funds in the amount of $750,000. Purchase Order Number 586C6-0216 reserves appropriated funds in the amount of $75,000. Purchase Order Number 586C6-0218 reserves appropriated funds in the amount of $85,000. Attachment 1. Response: Admits to the extent supported by the documents cited. Disagree with Afterdisaster's characterization of the effect of said purchase orders. 2. Purchase Order Number 586-C6-0194 was signed October 28th, 2005. Plaintiff AFTERDISASTER was paid $74,250 under Purchase Order Number 586-C6-0194 on June 13th, 2006. Purchase Order Number 586-C6-0195 was signed October 28th, 2005. Purchase Order Number 586-C6-0204 was signed November 8th, 2005. Purchase Orders Numbers 586-C6-0216 and 586-C6-0218 were signed November 18th, 2005. Plaintiff AFTERDISASTER has delivered

Case 1:07-cv-00884-LJB

Document 24

Filed 07/28/2008

Page 2 of 5

remediation services under Purchase Orders Numbers 586-C6-0194, 586-C6-0195, 586-C60204, 586-C6-0216 and 586-C6-0218. Plaintiff AFTERDISASTER has been paid nothing for remediation services delivered under Purchase Orders Numbers 586-C6-0195, 586-C6-0204, 586-C6-0216 and 586-C6-0218. Response: Agree. 3. Plaintiff AFTERDISASTER submitted to [the] United States Department of Veterans Affairs Contracting Officer Brenda Stewart on May 16th, 2007 a certified $3,510,602 Contract Disputes Act Claim for remediation services delivered by Plaintiff AFTERDISASTER under Purchase Orders Numbers 586-C6-0194, 586-C6-0195, 586-C6-0204, 586-C6-0216 and 586-C60218. Plaintiff's Complaint, ¶ 28., December 18th, 2007; Defendant's Answer, ¶ 28., May 30th, 2008. This certified Contract Disputes Act Claim seeks recovery of $2,295,830 for remediation services delivered within amounts established for these Purchase Orders and this certified Contract Disputes Act Claim seeks recovery of $1,214,772 for continued remediation services delivered over and above the amounts established for these Purchase Orders. Attachment 2. Response: Admits to the extent supported by the documents cited. 4. On December 18th, 2007[,] Plaintiff AFTERDISASTER filed with the Court a Complaint on a Claim Under Express Contracts in accordance with RCFC 7(a). Plaintiff AFTERDISASTER seeks declaratory relief and a money judgment under the Contract Disputes Act, 41 U.S.C. § 609(a)(1), and under the Federal Courts Administration Act of 1992, 28 U.S.C. §§ 1391 (a)(1), 1491(a)(2). Under 41 U.S.C. § 605(c)(2) Plaintiff AFTERDISASTER challenges the Deemed Denial of a certified Contract Disputes Act Claim for $3,510,602 under express Contracts between AFTERDISASTER and the United States Department of Veterans Affairs

2

Case 1:07-cv-00884-LJB

Document 24

Filed 07/28/2008

Page 3 of 5

(Veterans Affairs), a certified Contract Disputes Act Claim arising under Purchase Orders Numbers 586-C6-0194, 586-C6-0195, 586-C6-0204, 586-C6-0216 and 586-C6-0218 for remediation services delivered by Plaintiff AFTERDISASTER at the former United States Department of Veterans Affairs Medical Center, New Orleans, Louisiana. Plaintiff AFTERDISASTER asks for a Money Judgment not less than $3,510,602, allowable interest under 41 U.S.C. §611, and such other and further relief as may be just and proper. Response: Agree that the foregoing is contained in plaintiff's complaint. 5. On March 3rd, 2008[,] the Untited States Department of Veterans Affairs' Office of Inspector General issued its Report on the costs Claimed by Plaintiff AFTERDISASTER under these five Purchase Orders. Defendant's Answer, ¶ 34., May 30th, 2008. The Report by the United States Department of Veterans Affair's Office of Inspector General questions $722,108 of the $3,510,602 costs Claimed by Plaintiff AFTERDISASTER in the certified Contract Disputes Act Claim submitted to the United States Department of Veterans Affairs Contracting Officer Brenda Stewart. Attachment 3. Response: Admits to the extent supported by the documents cited. 6. On Thursday, April 24th, 2008[,] [the] United States Department of Veterans Affairs Contracting Officer Brenda Stewart issued her Final Decision on Plaintiff's [sic] AFTERDISASTER's certified Contract Disputes Act Claim on May 16th, 2007. [The] United States Department of Veterans Affairs Contracting Officer Brenda Stewart finds in her Final Decision of April 24th, 2008 that Plaintiff AFTERDISASTER is "currently due a combined total of $2,248,911.69 for work performed under Purchase Orders 586-C60194, 586-C60195, 586C60204, 586-C60216, and 586-C60218." Attachment 4.

3

Case 1:07-cv-00884-LJB

Document 24

Filed 07/28/2008

Page 4 of 5

Response: Admits to the extent supported by the documents cited. 7. Defendant does not challenge the finding of [the] United States Department of Veteran's Affairs Contracting Officer Brenda Stewart in her Final Decision of April 24th, 2008 that Plaintiff AFTERDISASTER is "currently due a combined total of $2,248,911.69 for work performed under Purchase Orders 586-C60194, 586-C60195, 586-C60204, 586-C60216, and 586-C60218." Defendant's Answer, ¶¶ 29. and 34., May 30th 2008. Response: Agree to the extent that this finding summarizes the contracting officer's final decision. Respectfully submitted, GREGORY G. KATSAS Assistant Attorney General JEANNE E. DAVIDSON Director s/Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director s/Armando Rodriguez-Feo ARMANDO A. RODRIGUEZ-FEO Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L St., NW Washington, D.C. 20530 Tele: (202) 307-3390 Fax: (202) 514-8624 July 28, 2008 Attorneys for Defendant

4

Case 1:07-cv-00884-LJB

Document 24

Filed 07/28/2008

Page 5 of 5

CERTIFICATE OF FILING I hereby certify that on this 28th day of July, 2008, a copy of the foregoing "DEFENDANTS RESPONSE TO PLAINTIFF'S PROPOSED FINDINGS OF UNCONTROVERTED FACTS" 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. The parties may access this filing through the Court's system.

s/Armando Rodriguez-Feo