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

Case 1:07-cv-00348-EGB

Document 10

Filed 09/26/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ESSEX ELECTRO ENGINEERS, INC., Plaintiffs, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 07-348 C (Judge E. Bruggink)

DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT

1. On July17, 2006, Defendant, the United States, and plaintiff, Essex Electro Engineers, Inc. ("Essex"), settled the latter's CDA claim via Contract Modification P00007 (the "Settlement Agreement") (attached to Defendant's Motion for Summary Judgment as Exhibit A). See Compl. at ¶ 21-22. 2. Pursuant to the Settlement Agreement, the Government paid Essex a total of $1,508,107.99. See Exhibit A at 2; Compl. at ¶ 22. 3. In particular, the Government paid Essex $1,164,832.00 for "[s]ettlement of [Essex's] claim for unabsorbed overhead due to Government caused delay" (CLIN 0009) and $343,275.99 for "[i]nterest on [the] settlement amount [f]rom date of certification of Claim (26 Jun 2000) through [d]ate of settlement (18 May 2006)" (CLIN 0010). Id. 4. As part of the Settlement Agreement, Essex agreed to a broad release of all possible claims related to the Contract: In consideration of the modification agreed to herein as a complete settlement of the Contractor's claim dated 25 May 2000 and certified 26 Jun 2000, the Contractor hereby releases the Government from any and all liability under 1

Case 1:07-cv-00348-EGB

Document 10

Filed 09/26/2007

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this contract for further equitable adjustments or claims attributable to the facts or circumstances giving rise to the claim. See Exhibit A at 2 (emphasis added). 5. The Contract Modification did provide that "payment should be made AS SOON AS POSSIBLE," but did not incorporate any statute or regulation relating to the Prompt Payment Act, or any other provision regarding interest penalties. Id. Essex received the total Settlement Agreement payment on August 30, 2006. Compl. at ¶ 29. Respectfully submitted, PETER D. KEISLER Assistant Attorney General

JEANNE E. DAVIDSON Director s/ Brian M. Simkin BRIAN M. SIMKIN Assistant Director s/ Matthew H. Solomson MATTHEW H. SOLOMSON Trial Attorney, Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 305-3274 Fax: (202) 514-8624 September 26, 2007 Attorneys for Defendant

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Case 1:07-cv-00348-EGB

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Filed 09/26/2007

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CERTIFICATE OF SERVICE

I hereby certify that, on this 26th day of September 2007, I caused to be filed electronically the foregoing DEFENDANT'S PROPOSED FINDINGS OF UNCONTROVERTED FACT with the United States Court of Federal Claims. 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/ Matthew H. Solomson MATTHEW H. SOLOMSON