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

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 1 of 30

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

HITT CONTRACTING, INC., Plaintiff, v. THE UNITED STATES, Defendant. Civil Action No. 07-823C (Chief Judge Damich)

PLAINTIFF'S STATEMENT OF PROPOSED UNCONTROVERTED FACTS Plaintiff, Hitt Contracting, Inc., states the following as its proposed uncontroverted facts: 1. On March 24, 2003, AOC awarded the West Refrigeration Plant

Expansion project to Hitt. (Appeal File, Exhibit 1)1 2. By subcontract dated May 15, 2003, Hitt hired Anderson to perform

earthwork and demolition on the project. (Appeal File, Exhibit 2) 3. Anderson's scope of work required it to remove large quantities of soil

material from the project. This material was removed by dump truck. The dump trucks were not operated by Anderson's employees. Anderson hired the trucks and drivers either directly, or through a trucking broker who would supply an agreed number of trucks on a given day. The trucks that were hired to participate in the hauling operation would report to the job site in the morning. After being loaded, they would haul their
1

References to the "Appeal File" are to the Rule 4 Appeal File from the proceeding before the Board of Contract Appeals.

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 2 of 30

load to a dump site located in southern Maryland and return to the project to pick up another load. Before reporting to the site in the morning, and before returning to pick up each load, the dump trucks were required to be inspected. Anderson paid for all of the trucking of non-contaminated soil based on hourly rates established with its trucking subcontractors. It paid for trucking of contaminated soil on a per ton basis. (Affidavit of Jason Brown)2 4. Anderson commenced performance of its subcontract work on or about

May 22, 2003. (Affidavit of Jason Brown) 5. From May 22, 2003 until approximately June 12, 2003, the vehicle

security inspections required by Hitt's general contract took place at the guarded security station at the entrance to the project along Virginia Avenue. (Affidavit of Jason Brown) 6. On or about June 13, 2003, the inspection requirements changed.3 On that

day, The United States Capitol Police directed Anderson to send all vehicles entering the project site to the Capitol Police inspection station for the Capitol Visitor Center project located at 3rd St. and Constitution Avenue NW. The new inspection station was located many blocks from the entrance to the West Refrigeration project.4 After being inspected, each truck would be provided with a placard showing the time of inspection. The truck then had 15 minutes to report to the project site. If it took the truck more than 15 minutes to get to the project entrance, it would have to return to the inspection station. (Affidavit of Jason Brown).

Jason Brown's affidavit is attached as Exhibit 1. The original affidavit was submitted to the Board. Hitt does not know why the change was made and was unable to question the Capitol Police about it because they would not consent to a deposition in the hearing before the Board. 4 A map showing the location of the inspection station and the location of the West Refrigeration project entrance is attached as Exhibit 2. The inspection station is circled. Two "x's" mark the project entrance.
3

2

2

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 3 of 30

6.

Because Anderson was hauling the material to dump sites located in

southern Maryland, the change in inspection location required Anderson's truckers to take a substantially different and longer route to the project site. As a result, the time required to dispose of each load of material increased. Because Anderson paid the trucks by the hour, its direct costs increased as well (Affidavit of Jason Brown). 7. On June 13, 2003, Anderson notified Hitt that the change in inspection

location constituted a change to its subcontract (Appeal File, page 75). 8. On April 11, 2005 AOC issued its contracting officer's final decision

denying the claim for increased trucking costs due to the change in inspection location (Appeal File, Exhibit 3 page 51)5. 9. Hitt appealed the decision to The House Office Building Committee Board

of Contract Appeals. 10. By decision dated May 30, 2007, The Board granted summary judgment

in favor of AOC against Hitt.6 Respectfully submitted, /s/ M. Joseph Pierce___________ M. Joseph Pierce, Esquire Kasimer & Annino, P.C. 7653 Leesburg Pike Falls Church, VA 22043 Telephone: 703-893-3914 Facsimile: 703-893-6944 Email: [email protected] Dated: March 26th, 2008

5 6

A copy of the decision is attached as Exhibit 3 A copy of the decision is attached as Exhibit 4

3

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 4 of 30

CERTIFICATE OF FILING I hereby certify that on the 26th day of March, 2008 a copy of the foregoing Plaintiff's Statement of Proposed 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. Parties may access this filing through the Court's system.

/s/ M. Joseph Pierce________

P:\Docs\Anderson\Hitt Contracting\AOC\Court of Claims\pleadingss\statement uncontroverted facts.032508.doc

4

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 5 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 6 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 7 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 8 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 9 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 10 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 11 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 12 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 13 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 14 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 15 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 16 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 17 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 18 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 19 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 20 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 21 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 22 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 23 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 24 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 25 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 26 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 27 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 28 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 29 of 30

Case 1:07-cv-00823-EJD

Document 16

Filed 03/26/2008

Page 30 of 30