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Page 1 of 23
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
ESSEX ELECTRO ENGINEERS, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )
No. 07-348C (Judge E. Bruggink)
PLAINTIFF'S PROPOSED FINDINGS OF UNCONTROVERTED FACT1 1. Fixed price Supply Contract No. F04606-94-D-0401 [Contract-0401] was awarded
to Essex Electro Engineers, Inc. [Essex] on September 30, 1994. The Contract was a 100% small business set aside for the production and supply of Generator Sets. Essex completed the Contract in January, 2002. (Complaint, ¶ 6). 2. On June 26, 2000, Essex submitted to the Contracting Officer a certified Contract
Disputes Act [CDA] claim on Contract-0401 for an equitable adjustment for Government-caused performance delays to Essex's performance resulting from Government changes. (Complaint, ¶¶ 8 through 17; Def's Proposed Findings, Exh. A, p. 1). 3. For almost six years, the Government asserted that it was unable to address, negotiate
or resolve Essex's claim because of the hostilities in Afghanistan and the preparation and conduct of the war in Iraq; and the Government had never disputed Essex's entitlement to the claim. (Complaint, ¶¶ 19 to 20].
1
By virtue of its Motions, Defendant has recognized the facts alleged in Plaintiff's Complaint as true [Def's Motions, p. 2, n. 1]. This was after Defendant was granted an enlargement of time of 60 days for a review of the Contract files to determine the accuracy of the facts alleged by Plaintiff.
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4.
On May 18, 2006, the Government and Essex agreed to a final settlement of Essex's
Contract CDA claim in an amount due of $1,164,832.00, plus accrued interest since June 26, 2000. (Complaint, ¶ 21; Def's Proposed Findings, Exh. A, p. 1). Both the Contracting Officer and Essex confirmed the "Date of settlement (May 18, 2006)", with payment required within a reasonable time or the agreement would be enforceable as a stipulation of entitlement and quantum. (Def's Exh. A; Append. pp. 1-2). 5. Essex allowed no more than 60 days from May 18, 2006, in order for a funding
modification and the payment to occur. (Append. pp. 3-4). 6. The Contracting Officer and higher management were fully aware that under the
settlement agreement the funding and payment due date of July 17, 2006, was definite and that the payment must be made by that date. (Append. pp. 5-7). 7. With no explanation other than "holidays" and people "being on leave," it was not
until July 17, 2006, that the funding Contract Modification P00007 was issued by the Contracting Officer and signed for the final settlement agreement of May 18, 2006. The Modification directed the payment agency, DFAS, to make the payment "AS SOON AS POSSIBLE". The Modification "changed" Section B of Contract-0401 ["Supplies or Services"] to add Contract Line Item Number [CLIN] 0009, the payment due for the CDA claim, and CLIN 0010, the accrued CDA interest on the amount found due on the CDA claim up to the date of the settlement on May 18, 20006. The Modification included a release of the "Government from any and all liability under this contract for further equitable adjustments or claims attributable to the facts or circumstances giving rise to the claim." (Def.'s Exh. A; Complaint ¶ 22). 8. On July 17, 2006, Essex submitted its Invoice "B809-CLAIM" for payment of the 2
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amounts on CLIN 0009 and CLIN 0010 in Modification P00007, stating that payment was due July 17, 2006, "upon receipt of this invoice." (Complaint ¶ 27; Append. pp. 4-8). 9. Also, on July 17, 2006, the Contracting Officer issued Contract-0401, Delivery Order
0004 "for Supplies or Services," again specifying CLINs 0009 and 0010 and requiring that DFAS "MUST" pay "as soon as possible..." (Complaint ¶ 23; Append. pp. 9-10). 10. Essex's Invoice was recorded by MOCAS [the DFAS electronic payment tracking
system] with a "Payment Due" date of July 26, 2006. (Complaint ¶ 31; Append. p. 11). 11. On August 30, 2006, Essex received the payment of its Invoice for CLINs 0009 and
0010, without any interest beyond the CLIN 0010 accrued interest as of May 18, 2006. (Complaint ¶ 29]. 12. After waiting ten days, on September 11, 2006, Essex submitted its written
request/demand under FAR 32.907-1(c)(1) for the late payment interest penalty required to have been paid on August 30, 2006, under FAR 32.907-1(a) and for the additional penalty amount under FAR 32.907-1(c) because of the failure of the Government to pay the late payment interest penalty within ten days. (Complaint ¶ 32; Append. pp. 12-13). 13. On December 29, 2006, Essex submitted its CDA claim to the assigned Contracting
Officer for the Prompt Payment late payment interest penalty and additional penalty for nonpayment. (Complaint ¶ 38). 14. It was not until May 17, 2007, that a new Contracting Officer informed Essex that
"[a]fter discussions with legal counsel, the Government's position is that interest is not payable under the Prompt Payment Act (PPA)." (Complaint ¶ 47). 15. In an effort to amicably resolve the question of interest due in this matter, Essex 3
Case 1:07-cv-00348-EGB
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incurred accrued administration costs for attorney fees and expenses for 63.25 Hours of professional services and expenses of $190.50 in communications and research from and after May 18, 2006, to and including May 17, 2007, when the new Contracting Officer refused to pay the interest claim, although the Contracting Officer never issued a final decision under the CDA. (Complaint ¶¶ 52-54; Append. pp. 14-17). Respectfully submitted, /s/ Charles E. Raley Charles E. Raley Counsel for Plaintiff 54 Governors Road Hilton Head Island, SC 29928 Tel: 843-363-6634 Fax. 843-363-6635 Certificate of Service I hereby certify that on the 24th day of October, 2007, the foregoing Plaintiff's Proposed Findings of Uncontroverted Fact and related Appendix were electronically filed with the Court. I understand that notice of this filing will be sent to Defendant by operation of the Court's ECF System, which may be accessed through the System. /s/ Charles E. Raley Charles E. Raley
4
Case 1:07-cv-00348-EGB
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IN THE UNITED STATES COURT OF FEDERAL CLAIMS
ESSEX ELECTRO ENGINEERS, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )
No. 07-348C (Judge E. Bruggink)
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT AND PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT
APPENDIX
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TABLE OF CONTENTS
1. 2. 3. 4. 5. 6. 7. 8. Page May 19, 2006: E-mails between Essex's Counsel and the Contracting Officer, confirmation of Settlement Agreement on May18, 2006............................................1-2 May 31, 2006: E-mails between Essex's Counsel and the Contracting Officer, Confirmation of Settlement Agreement 60 day commitment from May 18, 2006......3-4 July 12, 2007: E-mails between Essex's Counsel and the Contracting Officer, confirmation that July 17, 2006, is the settlement payment date.................................5-7 July 17, 2006: Essex's Invoice No. B809-CLAIM for Immediate Payment................ 8 July 17, 2006: Order for Supplies or Services No. 0004 for Contract Line Item Nos. 0009 and 0010, noting that payment Must be made as soon as possible.............9-10 August 17, 2006, MOCAS record noting Payment Due: 07/26/06 on Essex's Invoiced Amount of $1,508,107.99.............................................................................. 11 September 11, 2007: Essex demand letter for the interest penalty and additional penalty for late payment................................................................................................12-13 Plaintiff's Counsel's Statement of Professional Time and Costs.................................14-17
-i-
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f'WH,:
"Charles E. Ra/8Y"
70:
Sli;';;"::::
S,~b.~0'!:;;:::
"Hargis Jane GIV 742 CBSSSfGBTRKG" ....:J8ne.'Hargis@~rolJjm:>.af.rnll~-
:::'"fidsy, rJloy 19, 2006 2.43 PM
H.e: (.~o\!;raGH1~G·1 Se:tiCnlo:l£ J-\~J!T;Cln-l()nt
Ms. Hatgis.:
Thani'C you for confirming tile agreernent.
For your convenience, below I am provld;ng the applicable CDA interest rate as req"ired in 10 U.S.C_ Sec. 611 and 31 U.S_C_ Sec. 3902(a): Period Days f\nn.RatefYear Days x Per.D8Ys ~ Rate 6/26·-30100 4 0.0675 366 4 0.0007 711-'12131/00 '184 0.0725 366 184 0.0364 li1·-6/30101 181 0.06375 365 18'1 0.0316 711-12131101 184 0.05875 365 184 0.0296
18'1 0.0550 365 151 184 0.0525 365 184 181 0.0425 365 181 184 0.03125 30G 184 182 0.040 366 182 7/1·-12/3"1104 i84 0.045 366 184 1/'1-6130/05 181 0.0425 365 181 7/1-12/31/05 184 0.045 365 184 1Ji·5!18/06 138 005125 365 138 TOTAL RATE:
li1-12/31/02 111--6/30103 'il';-'1213'1103 1/1-6/30104
1/l,6/30102
0.0273 0.0255 0.0211 00158 0.0199 0.0226 0,0211 00227 0.0194 0.2947
You are correct in assumIng that I should be the matier.
poe for remaining actions to close this
Gased on prior experience in these matters, the payment modification need only recite the l"r",s stated in my e-mail. namely the amount due and that the pending claim and any and all utl1er Issues arising under the Contract. whether known or unknown, arc fully and finally settled by the payment of the required amount. Upon receipt of the modification, Essex will return the mOdification signed by Mr. Pawlowski with an Essex Invoice referencing the Contract Modification Number. I believe ille number should be No. "18", since the last (mown Contract ~nodljjclJltion was "iT dated Mamh 6, 2001. Payment would then be due.
PI~~se keep me advised on a continuing bl1~is of the ~tatu~ of the funding of this Inatter.
C.E. Hale:y Gou n~o' for Essex
I ::.n:~:. !.~~:~~~ ~,~~c C,;v 1·'\2 CBSSSiGl3"n~!\.(:
,0. <>,1,,,
,,~.').
~ - - Original Message
L. ,-.. . nJe~
i iCc: ·slp.ltn!f~~,'~Sf;e;':(~i[~ctrocom' ; Vassey Dt~ry) C Ct\! V';f~ALGJP:<~~:= · Gi"(;;!8:1WB1! 'T"i.nCJth)! ,r:'. c!\' '-;'J[~/\LCjDCP.,'\:
.'ifl912006
1
Case 1:07-cv-00348-EGB
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Page? of2
'Sedita, HO~;Jard, Mi, OeM' ; Qa\[j~on p_~_~~ Giy ~l\Jp·J\lC/~AQ Sent: Friday, May 19, 2006 1:30 PM Subject: RE: Contract-0401 Settlement Agreement
Mr. Raley, This email confirms the Government's agreement to settle this claim for the amount specified in your email below including CDA interest up to and including May 18, 2006, As stated to your yesterday, we have negotiated a settlement which will utilize funds which do not belong to this organization, We are in the process of determining the amount of interest so that we will know the total amount of funding required and, when that number is known, we will request funding in that amount. I wili advise you of the estimated time to obtain the funding as soon as I possibly can, I will also need to discuss with you or Mr. Pawlowski what is the best way to modify the contract to make the biliing and payment of these funds as simple as possible so that this whole issue can be closed out. I'm not sure if we will need Essex to execute a Certificate of Current Cost or Pricing Data but, if required, we will expect that as a part of the final close out of this issue. I will be back in touch with you ASAP. In the meantime, please feel free to call or email me as appropriate. I am assuming that you are the proper POC for the remainder of the actions required to close this out? Please advise if this is correct.
From: Charles E. Raley [mailto:[email protected]]
Sent: Friday, May 19, 2006 8:42 AM
10: Hargis Jane Civ 742 CBSSSjGBTRKC Subject: Contract-0401 Settlement Agreement
Dear Ms, Hargis: This confirms the results of our teleconference in the afternoon on May 18, 2006. Essex and the Government agree to a full and final settlement of the pending Claim and any other issues arising under the subject Contract F04606-94-F0401 upon the Government's payment to Essex of $1,164,832.00 plus COA interest on that amount from June 26, 2000, to and inclUding May 18, 2006. The total payment will be made as soon as possible using the Government's best efforts. In the absence of the required payment within a reasonable period of time, this agreement will be enforceable as a stipulation of Essex's entitlement and quantum. This morning you will be providing an e-mail to me confirming this agreement. Based on this agreement Essex will not proceed to tile its Complaint in the U.S. Court of Federal Claims as had been stated in our letter of May 16, 2006. Charles E. Raley Counsel for Essex
5i19!2006
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!!age 1 or L
Main Identity - Backup
From:
To: Sent:
Subjii'C::
Civ 742 CBSSS/G8TRKC1!
"'Charles E. Raley'"
Wednesday, May 31, 2006 3:03 PM
RE: Essex Claim Settlement
~'Hafgis Jane
Thanks for the email. We are exploring several avenues to obtain the funds and hopefully. we will be able to do so very quickly. I will keep you informed.
from: Charles E. Raley [mailto:[email protected]] Sent: Wednesday, May 31, 2006 il:46 AM To: Hargis Jane Civ 742 CBSSS/GBTRKC Cc: Seguin Steven W eiv 578 CBSS/GBZF; Miller David L elv 578 CBSSjGBZFM; Dunmeyer Bonita] Civ 542 CSWjFMM; Harris Veronica] Civ 742 CBSSS/GBTRK; Bryson Yvonne H eiv 642 CBSSS/GBZO-PKA Subject: Re: Essex Claim settlement
We confirm that the settlement amount piUS interest to and including May 18, 2006, totals the sum of $1,508,107.99 as agreed. We also will allow a period of no more than 60 days from May 1B, 2006, in order for the funding modification and payment to occur. On a continuing basis, please keep me informed of the actions and status of your progress in meeting this funding and payment schedUle. Sincerely, C.E. Raley Counsel for Essex
----- ,n " : . , " . ..)ngmat lVLessage ----
To: 'CharlesE. RaleY""-'"
From: Hargis Jane Civ 742 CBSSS/GBTRKC
".-
Cc: ~~gt;in Steven W Civ§11tC:BSS~~z:f' ; I\/mr.er D Sent: Wednesday, May 31, 2006 11 :00 AM Subject: Essex Claim Settlement
Just to be sure that our figures match completely, this is what I have as the amount due to Essex from the Government. Settlement interest Total Due $1,164,832,00
":M~.275.99
$1,508,107.99
3
5/31/2006
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Page 2 of2
Does this agree with your figures? Here is the status on funds: This contract as funded with FY93/95 funds which are now cancelled. Consequently, we must obtain funding out of current year dollars through our Obligation Adjustment Reporting System (OARS). This is also complicated by the fact that there are several funds citations on the contract and they utilize BP 12, FMS and 616 dollars which means that funds must be obtained proportionately, if possible, from all sources. I have sought and am receiving assistance from our Financial Management office and also from the current Program Manager. Please be assured that obtaining these funds is a top priority not only with me but with our senior management. I realize this claim has been around for a long time; however, obtaining these funds may take a little time also. While I do not expect Essex to wait an inordinate amount of time and will do everything in my power to expedite receipt of the funding, I must have your firm commitment to the dollars set forth above. It will serve no useful purpose for me to seek this funding and obtain it and then Essex not accept it because it has taken the Government time to obtain the funds. Obviously this is a "must pay" bill and we will obtain funding through some method; it is just likely to take several courses of action to do so. With your agreement, we will proceed and will diligently seek this funding. I will also keep you advised of each action and the status. Please understand that the Government does not expect you to wait an unreasonable amount of time and will definitely entertain discussions of additional interest if that should be the case. But, for today's effort and for a period of 60 days, I need your definite commitment to the above figure. Please respond as soon as possible so that I may advise my management and we may begin this process immediately. I realize we settled 12 days ago but, due to the holidays and key personnel being on leave, I have been unable to obtain instructions as to what method the program office plans to pursue until today. Thanks for your cooperation.
5/31/2006
4
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Page I of2
Main Identity - Backup
From:
To: "Charles E. Raley"
"Hargis Jane Civ 742 CBSSS/GBTRKC"
"Harris Veronica J Civ 742 CBSSS/GBTRK"
Wednesday, July 12, 20063:43 PM
Re: Essex Claim
Cc:
Sent:
SUbJect:
Ms. Hargis: You should soon receive an e-mail from Glenn Pawlowski authorizing me to sign the Modification and submit an Invoice for the amount due and a Certificate of Current Cost or Pricing Data signed by him. Please note that the current interest rate is 5.75% per annum which, on the base settlement of $1,164,832.00, results in an amount of $183.50 per day until payment after July 17, 2006. C.E. Raley
Counsel to Essex Electro Engineers, Inc.
Original Message
from: Hargis Jane Civ 742 CBSSS/GBTRKC
To: ChariesE. Raley Sent: Wednesday, July 12,'2006 1:57 PM' SUbject: RE: Essex Claim
C,,: Harris Veronica J Civ 742 CBSSS/GBTRK
.
Mr. Raley, I will send the document through our Legal Office and, upon their approval, will then send it to you electronically. You or whoever is authorized, can sign it, scan it and return it to me electronically. More importantly - before I can send this document for legal review, I need a Certificate of Current cost or Pricing Data signed by Glenn or Frank Pawlowski as of the date of agreement (18 May 2006). Please be sure the exact and current wording as set forth in the FAR Part 15 is used.1 plan to send the file to legal by tomorrow afternoon so I need the Certificate as soon as possible.
from: Charles E. Raley [mailto:[email protected]] sent: Wednesday, JulY 12, 2006 1:08 PM
To: Hargis Jane Ov 742 CBSSS/GBTRKC 0;: Harris Veronica J C"IY 742 CBSSS/GBTRK
Subject: Re: Essex Claim
Ms. Hargis: The most expeditious procedure would be to Fax a copy of the draft modification to me for review this afternoon. I will let you know bye-mail this afternoon if the modification is acceptable as drafted and the answer to your question regarding authority to sign for Essex. C.E. Raley
.5
7/13/2006
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Page 1 Df2
Main Identity - Backup
From:
To: Cc: Sent:
Subject:
"Hargis Jane Civ 742 CBSSSIGBTRKC" <:[email protected]>
"Charles E. Raley" <:[email protected]>
hHarris Veronica J eiv 742 CBSSS/GBTRK"
Wednesday. JUly 12,2006 10:42 AM
RE: Essex Claim
Mr. Raley, the funds have been identified and appropriate action to obtain these funds is being taken. We are aware of the July 17,2006 settlement payment date and have made sure the appropriate management is aware. I am in the process of completing the modification and sending it through the necessary approval levels. J will advise you as soon as the funds are made available and the modification is ready for signature. Are you authorized by Essex to sign the modification on their behalf? If not, please advise who will sign it. If you are, please have either Mr. Frank Pawlowski or Mr. Glenn Pawlowski advise me of this authorization. Thanks.
- - - ..
__..
_~_._--_.-
From: Charles E. Raley [mailto:[email protected]]
Sent:
Monday, July
10, 2006 3:12 PM
To: Hargis Jane CIV 742 CBS55/GBTRKC Cc: Harris Veronica J Clv 742 CBSSS/GBTRK SJAbject: Re: Essex Claim
Ms. Hargis:
With respect to your last communication, below, i note that, because of the BRAC closings, the
complete Contract and pea responsibility was transferred to Warner Robins on August 24,
2000. I also note that it is now one week until the settlement payment date of July 17, 2006,
Consequently, it appears reasonable to take certain immediate actions. First, please advise
of the amount of the necessary funds identified to date. Second, a partial funding Modification
and payment of the identified funds should be issued promptly with the balance to be paid
upon identification with interest. Instructions need to be given to DFAS for an immediate
payment upon receipt of E.ssex's Invoice.
C,E.. Raley
Counsel for Essex Electro Engineers, inc,
- . Original Message From: Hargis Jane Clv 742 CBSSSIGBTRKC To: Charles E. Raley . Cc: Hllrris Veronica J Civ 742 CBSSSiGBTRK Sent: 29~ 2006 8:27 Ar;,1 '. Subject: RE: Essex Claim
Thursday,Jun';
I apologize for not keeping you more informed; however, on my last email to you I asked if you would like a weekly update. You did not answer so I assumed it was not an issue. Because the claim transferred from Sacramento to Robins, we have found that Robins funds are not appropriate for payment of the claim. Requests have gone to the responsible 7/1212006
Case 1:07-cv-00348-EGB
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Page 2 of2
cllstorners and our responses have been positive. i have inion-ned ~f\leryone of the dete- ~;-ie payment must be made. I have also requested program management involvement to expedite obtaining these- funds. These people are now working to get the funds. i wish i couid give you a definite date and a more deiinitive status. But, given where jam, ! can only provide the info and documentation that is required. I will definitely advise you as soon as I know when the money will be available.
7/12/2006
7
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!NVOICE
Essen; E1eCh',,)
En19inf:!~~'$"t
Inco
Involcm Number
(l1Vl:Ilel! DEde
2015 Mitchell Siva Suite A Schaumburg, Illinois 60193
9809·CLAIM
711712006
Phone: (847H;~91--4444 Fax: {B4?)·B91·9111
Page
SOLD
WEST ENTITLEMENT CENTER
SHIP NlA
TO
"10
OFAS-COLUMElUS CENTER
P.O. BOX 152381
COLUMBUS, OHIO 43218-23!l1
!
ORDER DATE OnnEn NUMBER
1J17'-20(]5
nRMS
DUE DATE
DISCQUNTDATE
lmmealm&
7/17!2OOB
SH'P DA'JE
711712000 \
MODP'OO1
SHIP NO
SHIPYrA
PO NUMBER
/'04606-94-D·0401-0004
1ff712006
ill iWlil. : JJilj
1.00000
1.00000
1.00000 CLIN 0009 SETTLEMENT OF CLAIM
UnlJbt'0f9d bY8rhAad duAll'I' GOV8Jnmont
1.164,832.00000
343,275.99000
1,164,832.00 N
343.215.09 N
1.00000
ca.ussd-delay CUN 0010 INTERESTON SETT1.EMENT
FIOm date of lI:;ertlflaatfofi of Claim (26 Jun
2(00) .rhmu;'" Oa.l9 01 9:0UltlMer;l [1 a May 2098)
This payment i~ reQUired by Ih& Contract
Disputes Act, as no1od In the ottactted modification & omDr.
Pay11lElnt mu!:t bn MDdl!l upon ~lpl ollhirl
hwaica
I h91QbVt'ool1Y th~1 thls InvoIce
IJ: In ~mtmoo with IhEllsnne of
~."'DdmcaliOl1
--_··-' ..·~..·TAxA'9lS
POOOO7 a POOOO8 and tM re/Mad DrdBr
NONTAXABLE rR[;IGHT'
SALES TAX
.00
Mise
.00 NET DUE
.00
1,509.107.99 .00
.00
TOTAL 1.508,107..eO
, ,6ClQ, 107.99
Case 1:07-cv-00348-EGB
Document 13
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Page 15 of 23
Page 1
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9
Case 1:07-cv-00348-EGB
Document 13
Filed 10/24/2007
Page 16 of 23
P:a.ga 2 or 2 Indarmll. Dallvery Contrucl Ord.r F04506.94·0·0401·0004
a. The Government heteb~ orders 1M foltowir1g supplies andlof services: aTYI
eLIN
DeSCRIPTION
Yl!!!
IQ.Ilib
0009
Settlement of claim for unabsorbed overhead due to Government caused
delav·
0OO9AA
Portion of settlement rur which
The Air Force is ACRN: AA
Ii~hll!l,
1 10
$1,1~,10fj.OO
0OO9AB
Perliorr of geUlemBnt fo!" which I=MS country (Korea) fs liable.
ACRN: AS
110
21.509.00
0009AC
Portit"O of settlemefl1 for which FMS country (Tu~Ery) is !iablo, ACRN: AC
110
9,218.D0
Totol omount of CLiN 0009· $1.164.832.00
0010
Irrleresl orr senlemenl amount from Date or certillcation of claIm (2e Jun 2000) through dale of !.QWement
118 May ZOOS}
~ortian
oo10AA
or Interest for whIch the Air
110
$ 334.220.00
F'C1'C8 (s li.2bl~.
ACRN: AA
0010 AS
Portioll of inleresl for whIch FMS Country (Korea) is liable.
1 10
8.339.00
ACRN: 0010AC
AS
Portion of '"hUBS! 'or which FMS Country (Korea) Is nabla.
ACRN:
1 10
2,717.00
AC
Tolalamollnt of OLIN 0010 - $343,275.00
:J.
Seclion G, Aecounung and Approprlalion;
ACRN: AA 5753010115 3GE8 19UPAD 000000 00000 120000 503000 F03000 FoR: 073931 PSR: 084347 OSR: 100866. $1 .46B.325.oo
AB 97118242. KS02 4F)( 6305 CSIKKS 000000 00000 021000 503200 F0320F · $27.646.00 AC 97118242. TK024FX 471'5 CSMATK 000000 00000 004000 503200 F0320F - $l 1.935.00
10
Page 2of2
August 17, 2006
Page 2of2
e
CAGE: 2l2.69 DELIVERY ORDER: 0004 INVOICE: MODP007 STATUS: SEE REASON AND REMARK CODES ISSUE DATE: 07117106 TIN: PROCESSING SITE: COLUMBUS OHIO WEST MQCAS REASON: E REM.ARK&15 CHECKIEFT AMOUNT: 0.00 ACRN: DSSN: CURRENCY: US DOLLARS QUANTITY PAID: UNIT PRICE: . UM: DlfiNS: 005235882
CONTRACT: F0460694DD40l CUN:
SlID'MENT: MODPOO7 Th'VOlCE AMOUNT PAID: 1,508,107.99
RECEIVE DATE: 06f26f06 ACCEPTANCE:
Case 1:07-cv-00348-EGB
LAST ACTION: 07127106 PAYMENT DUE: 07126105
ACTUAL PAYl\fENT DATE: VOUCHER NUMBER:
TRACE NUMBER: CHECK NUMBER:
Document 13
l::.
RECEIVING BANK In: ACCOUNT NUMBER:
PAYEE NAME: ADDRESS:
INVOICE AMOUNT: 1,508,W7.99 DISCOUNT: 0.00
ADJUSTMENT1: REASONh ADJUSTMENT2: FE ASO.N2;. .00 WITHHOLD LATE PAY REASON: .00 L1Q DAMAGE
.00 PROGPAY
Filed 10/24/2007
FREIGHT: 0.00 lNTEREST: 0.00
TAX WITHHELD: 0.00 VOUCHER REMARKS: .00 ADV PAY
.00 QTYVAf
Page 17 of 23
'fltt#,~~a.di.'
Case 1:07-cv-00348-EGB
Document 13
Filed 10/24/2007
Page 18 of 23
Law Office of
C:HARI,ES KR).JLEY"
54 Govll1mor.· Road
Hilton Head bland, SC 29928
843-363-6634
Fax: 843-363-6635
.. Admitted: VA (Inactive) & D.C.
September 11, 2006
ERST CLASS MAlL
HQ0339 DFAS-Columbus Center \Vest Entitlement Operations P.O. Box 182381 Colwnbus, OH 43218-2381 Attn: David Merz
Re:
Essex Electro Engineers, Inc.
ContractlOrder No. F04606-94-D-0401-0004
ModificationslAmendments P00007, 1'00008 & 111
Invoice Date 7/17/2006, $1,508,107.99
Principle Receipt Date: 8/30/2006
Dear Mr. Merz: As we have previously advised: I. The subject ModificationslAmendments confirmed the prior settlement ofthe subject CDA claim plus interest through May 18, 2006. As you know, the CDA requires the accrual ofinterest to and including the date ofpayment. One term ofthe settlement was thatthe accruing interest would be tolled for a period of"no more than 60 days." Thus payment ofthe amount recited in the ModificationslAmendments was due July 17,2006. The subject Invoice [Copy enclosed] was dated on the agreed due date of luly j 7, 2006. The Invoice was entirely proper as evidenced by the fact that at no time did DFAS notitY Essex or return the Invoice for any alleged impropriety [See 5 CFR §1315.4(g)(4)]. TIle subject Modification/Amendment 1'00007 was also dated July 17,2006. Unilateral ModificationslAmendments 1'00008 & 01 [dated July 18, 2006]
2.
Case 1:07-cv-00348-EGB
Document 13
Filed 10/24/2007
Page 19 of 23
DFAS-Columbus Center September II, 2006 Page 2 merely corrected one number in the Contract number and the payment office number recited in Modification/Amendment P00007. The Modifications/Amendments explicitly directed DFAS to make the required payment "as soon as possible after receipt ofihe Invoice." 3. As authorized by FAR 32.903-1 (a)(3) ["unique circumstances"] &(5)["accelerated payment"] and 5 CFR § 1315.5(b) [Essex being a SmalIBusiness] and directed by the subject ModificationslAmendments, making contract payments by DFAS is possible as soon as 7 days after receipt ofan invoice, see FAR 32.908(c)(2). Accordingly, the subject Invoice due date was July 24, 2006 [7 days after receipt]. The payment by DFAS was nol received by Essex's bank until August 30, 2006. Under the 30 day compounding provisions ofFAR 32.907 and 5 CFR § 1315.1 0, Late Payment Interest was automatically due on the principle payment dale as follows: 7/25 - 8/24/2006: $1,508,107.99 x 0.0575 / 360 x 30 days: $ 7,226.35 8/2) - 8/30/2006: $1,508,107.99 7.226.35 $1,515,334.34 x 0.0575 / 360 x 6 days: 1,452.20 TOTAL LATE PAYMENT INTEREST: $ 8,678.55
4.
5.
Also, an Additional Penalty is due under FAR 32.907 and 5 CFR §1315.1I(b): TOTAL LA TE PAYMENT INTEREST AND ADDITIONAL PENALTY NOW DUE:
5.000.00
$ 13,678.55
Essex hcreby requestsldemands the immediate payment of $13,678.55. VelY truly yours,
Charles E. Raley
Counsel, Essex Electro Engineers, Inc.
Mr. Frank J. Pawlowski Essex Electro Engineers, Inc.
13
Case 1:07-cv-00348-EGB
Document 13
Filed 10/24/2007
Page 20 of 23
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
ESSEX ELECTRO ENGINEERS, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) ) )
No. 07-348C (Judge E. Bruggink)
PLAINTIFF'S COUNSEL'S STATEMENT OF PROFESSIONAL TIME AND COSTS The following is a summary of all professional time and costs accrued in telephone conferences, correspondence and other communications from the date of the final Contract No. F04606-94-D-0401 settlement agreement on May 18, 2006, until the preparation and filing of the Complaint in the above-captioned case in May, 2007, in an effort to amicably resolve the interest penalty and additional penalty arising from the Government's failure to timely pay the settlement payment. For more than thirty years, Counsel has assisted, consulted with, and represented the Plaintiff in the administration of its contracts with the Government, the negotiation and final settlement of issues, equitable adjustments, and claims on those contracts, and, if necessary, the prosecution of litigation on issues and claims on those contracts. My current CV is attached. Counsel 's normal and customary rate for several years since at least 2002 and to the present has been $300.00 per hour. This summary is taken from contemporaneous time and expense records maintained by Plaintiff's counsel.
14
Case 1:07-cv-00348-EGB
Document 13
Filed 10/24/2007
Page 21 of 23
Month: Attorney: Date 05/18/06 05/19/06 05/19/06 05/25/06 05/31/06 06/07/06 06/28/06 07/10/06 07/12/06 07/12/05 07/13/06 07/14/06 07/15/06 0716/06 07/17/06 07/18/06 07/18/06 07/19/06 07/21/06 08/01/06 08/02/06 08/03-31/06
May, 2006 thru May, 2007 Charles E. Raley Hours 3.0 1.0 2.0 0.5 5.0 0.5 0.5 1.0 1.0 1.0 1.0 3.5 4.5 2.5 2.0 1.0 1.0 1.0 0.5 0.5 0.5 9.75
Case: Matter:
Essex Administration, K-0401 1169-007
Description Telecon Frank, K-0401, Teleconf. Negotiation W/CO Hargis & other Gov't reps. Fax to Hargis (41 pages). Settlement agreement, $1,164,832, plus interest. e-mail to Hargis, Confirming the agreement, Fax to Frank [1 page] e-mail to Hargis, interest rate & settlement info. Fax to Frank [2 pages] e-mail to Hargis - status e-mail to Hargis, Response to Hargis e-mail of 05/76. E-mail Hargis, Status e-mail Hargis, payment status, Forward e-mail to Frank E-mail to Hargis, Status, forward to Frank e-mail to Hargis, Forward to Frank, response to Hargis 2nd. E-mail to Frank, forward and e-mail from Hargis. e-mail from Hargis, forward to Glenn, response to Hargis e-mail, forward to Glenn e-mail from Hargis, Cert. Of Current Cost or Price Data Telecon from Hargis Re: payment procedure, Telecons Frank & Glenn e-mail inquiries for response from Hargis, Hargis e-mail, Hargis telecon, e-mail to Hargis, telecon from Frank, Fax to Frank (2 pages) Computer revisions on Hargis proposal & create Mods. that can be agreed by Hargis and Frank e-mail & Fax (3 pages) final mod to Hargis (JPEG format), Fax to Frank (3 pages) e-mails to Hargis, forwarded to Glenn, telecons to Glenn, e-mail to Glenn e-mail from Hargis, to Hargis (2) e-mails to Hargis & Glenn, Order payment office correction & Invoice revisions. e-mail Order & Invoice e-mail Glenn, Submittal fo Invoice e-mails (3) Hargis, Anderson, Merz Payment e-mails (4) Hargis, Anbderson, Merz, Anne Payment 37 e-mails, Anderson, Anne, Beasley, Bryan, Drumm, Glenn, McDuff, Spring, Weir, Hargis - payment 15
Case 1:07-cv-00348-EGB
Document 13
Filed 10/24/2007
Page 22 of 23
09/08/06 09/11/06 09/27/06 09/28/06 09/29/06 10/02/06 12/06/06 12/07/06 12/27/06 12/29/06 01/02-3/07 01/16/07 02/27/07 02/28/07 03/13/07
2.5 1.5 0.75 0.5 1.5 2.5 2.5 1.5 3.0 2.5 0.25 0.25 0.25 0.25 0.25
Request/Demand ltr DFAS Late payment interest & addit. Pen. E-mails (3) Request/Demand letter, Merz, Michael, Frank (Anne) e-mail Cherie Hayward, late payment int. & add. Pen. e-mails to DFAS (2) Research & e-mail to DFAS on Prompt Payment applicable to Final K settlement action. E-mail Reply to Gather (DFAS) Interest & Addit. Penalty Claim - Draft, Fax to Frank [4 pages] " " " " " " Corrections Finalize Claim - Duplication/Printing [32 pages] Final Claim - Fax/e-mail to Hargis, Fax to Frank [11 pages] e-mails (2) to Hargis Re: her departure and Singleton, Fax to Frank [2 pages] e-mail to Singleton, confirm claim forwarded by Hargis e-mail Miller/Singleton, Status of Claim, Fax to Frank [1 page] e-mail Glenn Miller [CO] claim reply required in 60 days. Fax to Frank [1 page]. e-mail Glenn Miller [CO], Fax to Frank [2 pages]
Total Hours: 63.25 Expenses: Facsimile Transmissions (133 pages) Telecons, e-mails (89) Reproductions/Printing (32 pages) $ 133.00 49.50 8.00 $ 190.50 Respectfully submitted, October 23, 2007 /s/ Charles E. Raley Charles E. Raley Counsel for Plaintiff
16
Case 1:07-cv-00348-EGB
Document 13
Filed 10/24/2007
Page 23 of 23
CHARLES E. RALEY
54 Governors Road Hilton Head Island, SC 29928 (843)363-6634 Fax: (843)363-6635 e-mail: [email protected] For more than twenty years Mr. Raley was a partner in the Washington, D.C., law firm, Israel & Raley. In January, 1994, he merged the firm with and became a senior partner in the law firm of Watt, Tieder, Hoffar & Fitzgerald, located in McLean, Virginia. In January, 2000, he relocated to Hilton Head Island, South Carolina. His practice has involved the representation of large and small businesses principally in the areas of public and private supply and construction contract administration, claims, litigation and compliance on a national level. His responsibilities have involved managing multi-million dollar projects and actions, including the supervision of engineering, architectural, and accounting professionals with budgets and reports to corporate boards and executives. Since June, 2003, he has also served on the Town of Hilton Head Board of Zoning Appeals. Mr. Raley was born in Washington, D.C., May 3, 1946, and was raised in Northern Virginia. He received his undergraduate degree from the University of Virginia in 1968. He was an honors Juris Doctor graduate of the George Washington University School of Law in 1972. Mr. Raley is a member of the bars of the District of Columbia and the Commonwealth of Virginia and is admitted to practice before the District of Columbia Court of Appeals; the Supreme Court of Virginia; several U.S. District Courts; the U.S. Court of Appeals for the Federal Circuit [previously the U.S. Court of Claims]; the U.S. Claims Court now Court of Federal Claims; the U.S. Courts of Appeals for the District of Columbia, the First, the Fourth, the Sixth, and the Tenth Circuits; and the U.S. Supreme Court. He is a member of the American Bar Association, the ABA Committee on Procurement Fraud, and is listed in Who's Who in American Law and Who's Who in Executives and Professionals. He has authored several articles, including The Eichleay Bandwagon: Should We Pause Before Jumping Aboard? Procurement Lawyer, 1996; The Miller Act and the American Rule, Construction Contractor, Fed. Pub., 1997; All Seasons Construction & Roofing, Inc.: A Wrinkle in the Fabric of Delay Damage Recognition, Procurement Lawyer, 1999. He co-authored Proving and Pricing Delay Costs, Ch. 22, Construction Disputes: Representing the Contractor, 3rd ed., Aspen, 2001. He has also been a guest Lecturer on contracting ethics compliance at the William & Mary School of Law.
17
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