Free Answer - District Court of Federal Claims - federal

Case 1:07-cv-00151-MBH

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS UNITED STATES FIRE INS. CO., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 07-151C (Judge Horn)

DEFENDANT'S ANSWER For its answer to the complaint, defendant admits, denies, and alleges as follows: 1. Denies the allegations contained in paragraph 1 for lack

of knowledge or information sufficient to form a belief as to their truth. 2. 3. Admits. The allegations contained in paragraph 3 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 4. The allegations contained in paragraph 4 constitute

conclusions of law to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 5. Denies the allegations contained in paragraph 5 for lack

of knowledge or information sufficient to form a belief as to their truth. 6. Admits the allegations contained in paragraph 6 to the

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extent supported by the referenced bid solicitation, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 6. 7. Admits the allegations contained in paragraph 7 to the

extent supported by the referenced contract, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 7. 8. The allegations contained in the opening clause of

paragraph 8, indicating that certain actions of Castle Abatement were "required by" and "pursuant to" the referenced contract, constitute conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent that they may be deemed allegations of fact, they are admitted to the extent supported by the referenced contract, which is the best evidence of its content; otherwise the allegations contained in the opening clause of paragraph 8 are denied. Admits the

allegations contained in the remainder of paragraph 8 to the extent supported by the referenced payment and performance bonds, which are the best evidence of their contents; otherwise denies the allegations contained in the remainder of paragraph 8. 9. Admits the allegations contained in the first sentence

of paragraph 9 to the extent supported by the voluntary default letter referenced in the second sentence of paragraph 9; otherwise denies the allegations contained in the first sentence

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of paragraph 9.

To the extent that plaintiff may be relying on a

January 6, 1998 memorandum authored by Contracting Officer's Technical Representative Jonathan Walsh for its allegation that, as of the time of the referenced voluntary default letter, DVA "found that approximately fifty percent (50%) of the Contract's term had expired but that only approximately (10%) of the Contract's scope of work had been performed," admits the allegation to the extent supported by the Walsh memo, which is the best evidence of its contents; otherwise denies the allegations contained in the second sentence of paragraph 9. 10. The allegations contained in paragraph 10 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 11. Denies the allegation contained in the opening clause

of paragraph 11 that "[i]n order to facilitate the completion of the Contract and the performance of its obligations under the Takeover Agreement and its Bonds" for lack of knowledge or information sufficient to form a belief as to its truth. Admits

the allegations contained in the remainder of paragraph 11 to the extent supported by the cited Takeover Agreement, which is the best evidence of its contents; otherwise denies the allegations contained in the remainder of paragraph 11. 12. The allegations contained in paragraph 12 constitute

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conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 13. The allegations contained in paragraph 13 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 14. The allegations contained in paragraph 14 constitute

conclusions of law to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 15. Admits the allegations contained in paragraph 15 that

the DVA has failed to admit or deny the claim and that the Contracting Officer has not issued any final decision. The

allegation contained in paragraph 15 that "the time for doing so having transpired" constitutes a conclusion of law to which no response is required; to the extent that it may be deemed an allegation of fact, it is denied. 16. The allegations contained in paragraph 16 constitute

plaintiff's characterization of its case to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 17. The allegations contained in paragraph 17 constitute

conclusions of law and plaintiff's characterization of its case

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to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 18. The allegations contained in paragraph 18 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 19. Admits the allegation contained in paragraph 19 that

defendant currently holds earned Contract funds in an amount of at least $119,001. The allegation contained in paragraph 19 that

the Contract funds are "unjustly retained" constitutes a conclusion of law to which no response is required; to the extent that it may be deemed an allegation of fact, it is denied. 20. The allegations contained in paragraph 20 constitute

conclusions of law to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. Denies that plaintiff is entitled to the relief set

forth in the prayer for relief immediately following paragraph 20, or to any relief whatsoever. 21. Defendant's responses to paragraphs 1 through 20 are

incorporated by reference. 22. The allegations contained in paragraph 22 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent that they may be deemed allegations of fact, they are denied.

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23. 24.

Plaintiff's complaint does not contain a paragraph 23. The allegations contained in paragraph 24 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 25. The allegations contained in paragraph 25 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 26. The allegations contained in paragraph 26 constitute

conclusions of law and plaintiff's characterization of its case to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 27. The allegations contained in paragraph 27 constitute

conclusions of law to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 28. The allegation contained in paragraph constitutes a

conclusion of law to which no response is required; to the extent that it may be deemed an allegation of fact, it is denied. 29. Denies that plaintiff is entitled to the relief set

forth in the prayer for relief immediately following paragraph 28, or to any relief whatsoever. 30. Denies each and every allegation not previously

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admitted or otherwise qualified.

WHEREFORE, defendant requests that the Court enter judgment in its favor, order that the complaint be dismissed, and grant defendant such further and other 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 s/A. Bondurant Eley A. BONDURANT ELEY Trial Attorney Commercial Litigation Branch Civil Division Department of Justice Attn: Classification Unit 8th Floor 1100 L Street, NW Washington, D.C. 20530 Tel: (202) 616-5824 Fax: (202) 514-8624 July 6, 2007 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on this 6th day of July, 2007, a copy of the foregoing "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. access this filing through the Court's system. Parties may

s/ A. Bondurant Eley A. BONDURANT ELEY