Free Answer - District Court of Federal Claims - federal

Case 1:07-cv-00200-CFL

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS GRUNLEY-WALSH, LLC ) ) ) ) ) ) ) ) ) ) )

Plaintiff, v.

No. 07-200C (Judge Lettow)

THE UNITED STATES, Defendant.

DEFENDANT'S ANSWER For its answer to the complaint of plaintiff, Grunley-Walsh, LLC ("Grunley-Walsh"), defendant, the United States, admits, denies, and alleges as follows: 1. The allegations contained in paragraph 1 constitute conclusions of law, and

plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 2. Denies the allegations contained in paragraph 2 for lack of knowledge or

information sufficient to form a belief as to their truth. 3. 4. Admits. Denies the allegation contained in the first sentence of paragraph 4 that on May 6,

1998, the Department of the Interior, National Park Service awarded Grunley-Walsh Contract No. 1443CX305998901. Avers that on May 13, 1998, the Department of the Interior, National Park Service awarded Grunley-Walsh Contract No. 1443CX305998901. Admits the remaining allegations contained in the first sentence of paragraph 4 to the extent supported by Contract No. 1443CX305998901, which is the best evidence of its contents; otherwise, denies the remaining allegations contained in the first sentence of paragraph 4. The second sentence of paragraph 4

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contains plaintiff's characterization of its complaint, to which no response is required. Admits the allegations contained in the third sentence of paragraph 4. 5. Denies the allegation contained in the first sentence of paragraph 5 that Contract

Modification No. 7 was dated November 15, 2001. Avers that Contract Modification No. 7 was dated November 21, 2001, and was effective November 15, 2001. Admits the remaining allegations contained in paragraph 5 to the extent supported by Modification No. 7, which is the best evidence of its contents; otherwise, denies the remaining allegations contained in paragraph 5. 6. Admits the allegations contained in paragraph 6 to the extent supported by Task

Order No. 35, which is the best evidence of its contents; otherwise, denies the allegations contained in paragraph 6. 7. The allegations contained in paragraph 7 constitute plaintiff's characterization of

its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 8. Admits the allegations contained in paragraph 8 to the extent supported by the

contracting officer's March 23, 2007 letter cited, which is the best evidence of its contents; otherwise, denies the allegations contained in paragraph 8. 9. The allegations contained in paragraph 9 constitute conclusions of law, to which

no answer is required; to the extent they may be deemed allegations of fact, they are denied. 10. The allegations contained in the first sentence of paragraph 10 constitute

plaintiff's characterization of its case, which no answer is required; to the extent they may be deemed allegations of fact, they are denied. Admits the allegations contained in the second -2-

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sentence of paragraph 10 to the extent supported by Modifications Nos. 6, 7, 8, and 9, which are the best evidence of their contents; otherwise, denies the allegations contained in the second sentence of paragraph 10. Denies the allegations contained in the third and fourth sentences of paragraph 10. Denies the allegations contained in the fifth sentence of paragraph 10 as to what Grunley-Walsh "believed" for lack of knowledge or information sufficient to form a belief as to their truth; denies the remaining allegations contained in the fifth sentence of paragraph 10. Admits the allegation contained in the sixth sentence of paragraph 10 that the Government disputes that Grunley-Walsh is entitled to additional compensation for the work identified; denies the remaining allegations contained in the sixth sentence of paragraph 10. 11. Admits the allegations contained in the first sentence of paragraph 11 to the extent

supported by the "contract drawings" cited, which are the best evidence of their contents; otherwise, denies the allegations contained in the first sentence of paragraph 11. Avers that it is not clear which "contract drawings" plaintiff is referencing. Denies the allegations contained in the second sentence of paragraph 11. Denies the allegations contained in the third sentence of paragraph 11 for lack of knowledge or information sufficient to form a belief as to their truth. Admits the allegations contained in the fourth sentence of paragraph 11 to the extent supported by the "Task Order 35 contract documents" cited; which are the best evidence of their contents; otherwise, denies the allegations contained in the fourth sentence of paragraph 11. Avers that it is not clear which "Task Order 35 contract documents" plaintiff is referencing. 12. Denies the allegation contained in the first sentence of paragraph 12. Avers that at

a May 18, 2005 project meeting, Steve Sims of Alpha Corporation asked Grunley-Walsh if the storm drains surrounded by concrete or stone should be primed and painted black. Denies the -3-

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allegations contained in the second and third sentences of paragraph 12. Denies the allegations contained in the fourth sentence of paragraph 12 as to what Grunley-Walsh "expected" for lack of knowledge or information sufficient to form a belief as to their truth; denies the remaining allegations contained in the fourth sentence of paragraph 12. 13. Denies the allegation contained in paragraph 13 that the work constituted "change

work." Admits the remaining allegations contained in paragraph 13 to the extent supported by the documents cited, which are the best evidence of their contents; otherwise, denies the remaining allegations contained in paragraph 13. 14. Admits the allegations contained in paragraph 14 to the extent supported by the

"contract drawings" cited, which are the best evidence of their contents; otherwise, denies the allegations contained in paragraph 14. Avers that it is not clear which "contract drawings" plaintiff is referencing. Denies that the illustration below paragraph 14 is an excerpt from any drawing issued or created by the National Park Service. 15. Admits the allegations contained in the first sentence of paragraph 15. Avers that

no drawings dated February 27, 2004 were issued or created by the National Park Service. Admits the allegations contained in the second sentence of paragraph 15 to the extent supported by the February 27, 2004 drawings cited, which are the best evidence of their contents; otherwise, denies the allegations contained in the second sentence of paragraph 15. Denies that the illustration below paragraph 15 is an excerpt from any drawing issued or created by the National Park Service. 16. Admits the allegations contained in the first sentence of paragraph 16 to the extent

supported by the July 27, 2004 letter cited, which is the best evidence of its contents; otherwise, -4-

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denies the allegations contained in the first sentence of paragraph 16. Denies the allegations contained in the second sentence of paragraph 16 as to what Grunley-Walsh "believed" for lack of knowledge and information sufficient to form a belief as to their truth. Admits the allegations contained in the third sentence of paragraph 16 to the extent supported by Modification No. 5, which is the best evidence of its contents; otherwise, denies the allegations contained in the third sentence of paragraph 16. Denies the allegations contained in the fourth sentence of paragraph 16. Avers that Modification No. 5 provided compensation for aspects of the bollard system. Admits the allegation contained in the fifth sentence of paragraph 16 that Modification No. 5 made part of the Contract the specification requirements for the bollard system set forth in the Contracting Officer's letter of July 27, 2004; denies the remaining allegations contained in the fifth sentence of paragraph 16. 17. Admits the allegations contained in the first sentence of paragraph 17 that the

National Park Service requested that the bollard control boxes be mounted in the wall adjacent to the bollards; denies the remaining allegations contained in the first sentence of paragraph 17. Admits the allegations contained in the second sentence of paragraph 17 to the extent supported by the July 27, 2004 letter cited, which is the best evidence of its contents; otherwise, denies the allegations contained in the second sentence of paragraph 17. Admits the allegation contained in the third sentence of paragraph 17 that on January 13, 2005, a design sketch was issued depicting the location for the bollard control box in the wall adjacent to the bollards, to the extent supported by the January 13, 2005 design sketch cited, which is the best evidence of its contents, otherwise, denies the allegations contained in the third sentence of paragraph 17 that on January 13, 2005, a design sketch was issued depicting the location for the bollard control box in the wall -5-

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adjacent to the bollards. Denies the remaining allegations contained in the third sentence of paragraph 17. Avers that the January 13, 2005 design sketch was not issued or created by the National Park Service. Admits the allegations contained in the fourth sentence of paragraph 17 to the extent supported by the May 12, 2005 design sketch cited, which is the best evidence of its contents, otherwise, denies the allegations contained in the third sentence of paragraph 17. Avers that the May 12, 2005 design sketch was not issued or created by the National Park Service. Denies that the illustration below paragraph 17 is an excerpt from any drawing issued or created by the National Park Service. 18. Denies the allegations contained in the first sentence of paragraph 18 for lack of

knowledge or information sufficient to form a belief as to their truth, because it is unclear which "walls in question" plaintiff is referencing. Admits the allegation contained in the second sentence of paragraph 18 that an existing piece of stone veneer was removed from a Northwest section of a wall; admits the allegations contained in the second sentence of paragraph 18 that concrete was chipped away to accommodate the bollard control box; denies the remaining allegations contained in the second sentence of paragraph 18 for lack of knowledge or information sufficient to form a belief as to their truth. 19. Admits the allegations contained in paragraph 19 to the extent supported by the

documents cited, which are the best evidence of their contents; otherwise, denies the allegations contained in paragraph 19. 20. Admits the allegations contained in the first sentence of paragraph 20 that in April

2005, as site work around the Sylvan Theater was proceeding a leak in an existing water line was discovered; denies the remaining allegations contained in the first sentence of paragraph 20. -6-

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Denies that the illustration below paragraph 20 is an excerpt from any drawing issued or created by the National Park Service, or accurately depicts conditions or work performed on the project. 21. Admits the allegation contained in the first sentence of paragraph 21 that at the

request fo the Park Service's on-site representative, Grunley-Walsh was required to effect repair/replacement of a waterline valve to stop the leaking and water drainage from a leak. Avers that the location of the waterline valve at issue is not correctly depicted on the illustration above paragraph 21. Admits the allegations contained in the second sentence of paragraph 21 to the extent supported by the document cited, which is the best evidence of its contents; otherwise, denies the allegations contained in paragraph 21. Denies that the photographs below paragraph 21 are correctly captioned. 22. Admits the allegations contained in the first sentence of paragraph 22 to the extent

supported by the grading plans cited, which are the best evidence of their contents; otherwise, denies the allegations contained in paragraph 22. Admits the allegations contained in the second sentence of paragraph 22 that the drainage in front of the Sylvan Theater stage needed to be revised; denies the remaining allegations contained in the second sentence of paragraph 22. Denies that the illustration below paragraph 22 is an excerpt from any drawing issued or created by the National Park Service, or accurately depicts conditions or work performed on the project. 23. Admits the allegations contained in the first sentence of paragraph 23 that to

revise the drainage, Grunley-Walsh dug test pits to determine the exact location of existing utilities; denies the remaining allegations contained in the first sentence of paragraph 23. Denies the allegations contained in the second sentence of paragraph 23 for lack of knowledge or information sufficient to form a belief as to their truth. Admits the allegations contained in the -7-

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third sentence of paragraph 23 that new drain lines and a new drain inlet were installed; denies the remaining allegations contained in the third sentence of paragraph 23 for lack of knowledge or information sufficient to form a belief as to their truth. Admits the allegations contained in the fourth sentences of paragraph 23. Denies the allegation contained in the fifth sentence of paragraph 23 that the work constituted change work. Admits the remaining allegations contained in the fifth sentence of paragraph 23 to the extent supported by the documents cited, which are the best evidence of their contents; otherwise, denies the remaining allegations contained in the fifth sentence of paragraph 23. Denies that the photographs below paragraph 23 are correctly captioned. 24. Denies the allegations contained in paragraph 24. Denies that the illustration

below paragraph 24 is an excerpt from any drawing issued or created by the National Park Service. 25. Admits the allegations contained in the first sentence of paragraph 25 that some of

the existing handicap ramps were severely cracked and deteriorated; denies the remaining allegations contained in the first sentence of paragraph 25. Admits the allegations contained in the second sentence of paragraph 25 that the National Park Service requested and directed that some of the existing handicap ramps be removed and replaced, denies the remaining allegations contained in the first sentence of paragraph 25. Denies that the photographs below paragraph 25 are correctly captioned. 26. Denies the allegation contained in paragraph 26 that the work constituted change

work. Admits the remaining allegations contained in paragraph 26 to the extent supported by the documents cited, which are the best evidence of their contents; otherwise, denies the remaining -8-

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allegations contained in paragraph 26. 27. Denies the allegation contained in paragraph 27 that the work was outside the

"contract limit line." Admits the remaining allegations contained in paragraph 27 to the extent supported by the contracting officer's final decision cited, which is the best evidence of its contents; otherwise denies the remaining allegations contained in paragraph 27. 28. The allegations contained in paragraph 28 constitute plaintiff's characterization of

its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 29. The allegations contained in paragraph 29 constitute conclusions of law, and

plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 30. Admits the allegations contained in the first sentence of paragraph 30 to the extent

supported by the contracting officer's final decision cited, which is the best evidence of its contents; otherwise denies the allegations contained in the first sentence of paragraph 30. Admits the allegation contained in the second sentence of paragraph 30. Avers that $3,088.71 has been deducted from the $57,435 credit that the National Park Service is due. 31. Admits the allegation contained in paragraph 31 that Grunley-Walsh requested a

contracting officer's final decision on January 25, 2007, to the extent supported by the letter at Exhibit C to Grunley-Walsh's complaint, which is the best evidence of its contents; otherwise, denies the allegation contained in paragraph 31 that Grunley-Walsh requested a contracting officer's final decision on January 125, 2007. The remaining allegations contained in paragraph 31 constitute conclusions of law, and plaintiff's characterization of its case, to which no answer is -9-

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required; to the extent they may be deemed allegations of fact, they are denied 32. The allegations contained in paragraph 32 constitute conclusions of law, and

plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 33. Defendant's responses to paragraphs 1 through 32 of the complaint are

incorporated by reference. 34. The allegations contained in paragraph 34 constitute conclusions of law, and

plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 32. The allegations contained in paragraph 32 constitute conclusions of law, and

plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 35. The allegations contained in paragraph 35 constitute conclusions of law, and

plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 36. The allegations contained in paragraph 36 constitute conclusions of law, and

plaintiff's characterization of its case, to which no answer is required; to the extent they may be deemed allegations of fact, they are denied. 37. Denies that plaintiff is entitled to the relief set forth in the prayer for relief

immediately following paragraph 36, or to any relief whatsoever. 38. Denies each and every allegation not previously admitted or otherwise qualified.

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AFFIRMATIVE DEFENSES 39. Plaintiff's claims are totally or partially barred by the doctrine of payment insofar

as plaintiff has received payment and has been fully compensated according to the terms and conditions of the contract. 40. Plaintiff's claims are totally or partially barred by accord and satisfaction.

WHEREFORE, defendant requests that the Court enter judgment in its favor, order that the complaint be dismissed, and grant defendant such other and further relief as the Court may deem just and proper. Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director s/ Donald E. Kinner DONALD E. KINNER Assistant Director OF COUNSEL: Alton Woods Assistant Solicitor Emily Parkhurst Attorney Advisor Department of the Interior General Law Division 1849 C Street NW Room 7322 Washington, DC 20240

s/ Tara Kilfoyle TARA KILFOYLE Trial Attorney Commercial Litigation Branch Civil Division 1100 L St., N.W. Attn: Classification Unit 8th Floor Washington, D.C. 20530 Tele: (202) 305-1709 Fax: (202) 307-0972

May 25, 2007 -11-

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CERTIFICATE OF SERVICE I hereby certify that on this 25th day of May 2007, a copy of the foregoing "DEFENDANT'S ANSWER" 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/ Tara Kilfoyle