Free Motion to Stay - District Court of Federal Claims - federal

Case 1:07-cv-00337-LJB

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Filed 12/21/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS CCS INDUSTRIAL SALES, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 07-337C (Judge Bush)

JOINT MOTION FOR A STAY OF PROCEEDINGS AND REMAND Pursuant to Rule 52.2 of the Rules of the United States Court of Federal Claims ("RCFC"), plaintiff, CCS Industrial Sales, Inc., and defendant, the United States, respectfully request that the Court grant a stay of proceedings in this case for 60 days from the date of its order and remand the cause to the Contracting Officer for a decision on plaintiff's January 23, 2007 claim, pursuant to the Contract Disputes Act, 41 U.S.C. §§ 601-613 (2007) ("CDA"). Section 605(c)(5) of the CDA provides the Court with discretion to enter a stay when in a case such as this one, "suit is . . . commenced in the absence of a prior decision by the contracting officer." 41 U.S.C. § 605(c)(5). Moreover, "the Court may issue a stay to obtain a final decision when the Court believes that such a decision would be beneficial to the parties and assist resolution of the matter." United Partition Sys., Inc. v. United States, 59 Fed. Cl. 627, 641-42 (2004); RCFC 52.2. As the Court is aware, this case primarily involves plaintiff's claim for invoices generated as a result of Hurricane Katrina cleanup work at the Veterans' Affairs Medical Center in New Orleans, Louisiana. On January 23, 2007, plaintiff submitted its certified claim to the contracting officer. The contracting officer never issued a final decision. Subsequently, on May 31, 2007, plaintiff filed its complaint in this Court. Upon receiving the complaint, the VA Office of the Inspector General conducted a review of plaintiff's claims and, on September 20, 2007, prepared a report which materially advanced the parties'

Case 1:07-cv-00337-LJB

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Filed 12/21/2007

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understanding of the relevant facts and of the issues requiring resolution. However, VA contracting officials have had no opportunity to formally resolve these issues. As previously represented in defendant's last unopposed motion for an enlargement of time to answer plaintiff's complaint, the parties negotiated a proposed settlement and defendant agreed to forward the proposal to the authorized representative of the United States Attorney General pursuant to 28 C.F.R. Part 0, Subpart Y. However, during the process of preparing the recommendation, questions arose concerning whether the individual(s) who may have authorized plaintiff to perform the work at issue had authority to do so; whether any such authorization exceeded the amount of the relevant purchase order(s); and whether the VA may ratify the additional work plaintiff performed. Both parties believe that obtaining a formal analysis of plaintiff's claims through a contracting officer's final decision might resolve these issues and, in any case, can further refine the dispute and develop a basis for settlement or more formal litigation. Accordingly, in the interest of conserving judicial resources, and the time and expense of the parties, the parties respectfully request that the Court stay the proceedings in the case, and enter an order staying this matter for 60 days, commencing upon the day of the order, directing the contracting officer to issue a final decision upon plaintiff's claim within that time. The parties further propose that within 14 days from the conclusion of the stay, they submit a joint status report recommending further proceedings in this matter. Respectfully submitted, JEFFREY S. BUCHOLTZ Acting Assistant Attorney General JEANNE E. DAVIDSON -2-

Case 1:07-cv-00337-LJB

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Director s/ Steven J. Gillingham STEVEN J. GILLINGHAM Assistant Director s/ Cyrus E. Phillips, IV CYRUS E. PHILLIPS, IV 1828 L St., NW, Suite 660 Washington, D.C. 20036-5112 Tel: (202) 466-7008 Fax: (202) 466-7009 s/ Armando A. 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 Tel: (202) 307-3390 Fax: (202) 514-8624 Attorneys for Defendant

Attorney for Plaintiff December 21, 2007

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Case 1:07-cv-00337-LJB

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CERTIFICATE OF FILING I hereby certify that on this 21st day of December, 2007, a copy of the foregoing "JOINT MOTION FOR A STAY OF PROCEEDINGS AND REMAND" 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 A. Rodriguez-Feo