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

Case 1:07-cv-00143-MMS

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Filed 12/19/2007

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS SKANSKA USA BUILDING, INC., Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 07-143C Judge Firestone

PROPOSED FINDINGS OF UNCONTROVERTED FACT Pursuant to Rule 56(h)(1) of the Rules of the Court of Federal Claims, the Plaintiff submits the following proposed findings of uncontroverted fact: First Entitlement Theory: Type II Differing Site Condition 1. Section 01572 of the construction contract granted the Contractor the right to the financial benefit accruing from disposing of surplus "soils" from the project. · Contract Section 01572, - Exhibit 3 to Declaration of Terry R. Marston II

2. In reliance on Section 01572, the Contractor had not planned on having any cost of disposing of surplus soils from the project when preparing its estimate and bidding on the work. · · · · · · Declaration of David Berglund Deposition of Daucey Brewington, Nacon Construction (President), 9:22-25, 10:1-13, - Exhibit 11 to Declaration of Terry R. Marston II Deposition of Daucey Brewington, Nacon Construction (President), 10:14-25, 11: 1-14 - Exhibit 11 to Declaration of Terry R. Marston II Deposition of Daucey Brewington, Nacon Construction (President), 5:18-25, 6:1-10 - Exhibit 11 to Declaration of Terry R. Marston II Deposition of Daucey Brewington, Nacon Construction (President), 7:20-25, 8:1-12 - Exhibit 11 to Declaration of Terry R. Marston II Deposition of Daucey Brewington, Nacon Construction (President), 8:13-23 Exhibit 11 to Declaration of Terry R. Marston II

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· · · · · ·

Deposition of Daucey Brewington, Nacon Construction (President), 13:7-23 Exhibit 11 to Declaration of Terry R. Marston II Deposition of Daucey Brewington, Nacon Construction (President), 15:20-25 - Exhibit 11 to Declaration of Terry R. Marston II Deposition of David Berglund, Active Construction (Estimator), 22:19-25, 23:1-9 - Exhibit 12 to Declaration of Terry R. Marston II Deposition of David Berglund, Active Construction (Estimator), 8:10-19 Exhibit 12 to Declaration of Terry R. Marston II Deposition of Nancy Gary, COE (Contracting Officer), 75:18-22 - Exhibit 7 to Declaration of Terry R. Marston II Deposition of Nancy Gary, COE (Contracting Officer), 75:23-25, 76:1-9 Exhibit 7 to Declaration of Terry R. Marston II

3. The government had "confirmed" in writing that the remaining stockpiled soil was surplus and authorized for offsite removal before lead contamination was discovered · · · · · · Declaration of Terry R. Marston II, - Exhibit 2, RFIs 318 & 318R Deposition of Nancy Gary, COE (Contracting Officer), 47:22-25, 48:1-9 Exhibit 7 to Declaration of Terry R. Marston II Deposition of Robert Mathews, Active Construction (Proj. Mgr), 8:8-14 Exhibit 13 to Declaration of Terry R. Marston II Deposition of Robert Mathews, Active Construction (Proj. Mgr), 8:25, 9:1-4 Exhibit 13 to Declaration of Terry R. Marston II Deposition of Tom Wilkin, COE (Owner's Asst. Project Engineer), 20:2-24 Exhibit 9 to Declaration of Terry R. Marston II Deposition of Tom Wilkin, COE (Owner's Asst. Project Engineer), 39:7-25, 40:1-13 - Exhibit 9 to Declaration of Terry R. Marston II

4. The Contractor had arranged with a third-party, ESE Corporation, to trade the surplus soil in exchange for hauling it away from the project at no expense to the contractor. · · Declaration of Wes Johnson, and attached Proposal of ESE Corporation Deposition of Robert Mathews, Active Construction (Proj. Mgr), 10:11-25, 11:1-5

5. Lead contamination was discovered in soil stockpiled at the construction site. · · Deposition of Nancy Gary, COE (Contracting Officer), 49:8-25, 50:1-5 Exhibit 7 to Declaration of Terry R. Marston II Deposition of Nancy Gary, COE (Contracting Officer), 70:23-25, 71:1-2 Exhibit 7 to Declaration of Terry R. Marston II

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6. The contractor did not cause the lead contamination. · Deposition of Nancy Gary, COE (Contracting Officer), 76:10-12 - Exhibit 7 to Declaration of Terry R. Marston II

7. The contract documents did not disclose the lead contamination. · · · · Deposition of James Packard, COE (Owner's Project Engineer), 66:19-25 Exhibit 8 to Declaration of Terry R. Marston II Deposition of Nancy Gary, COE (Contracting Officer), 80:25, 81:1-10 Exhibit 7 to Declaration of Terry R. Marston II Deposition of Robert Mathews, Active Construction (Proj. Mgr), 24:3-16 Exhibit 13 to Declaration of Terry R. Marston II Deposition of Robert Mathews, Active Construction (Proj. Mgr), 25:3-16 Exhibit 13 to Declaration of Terry R. Marston II

8. The contractor`s pre-bid site inspection did not disclose the lead contamination. · Deposition of David Berglund, Active Construction (Estimator), 23:15-25, 24:1-4 - Exhibit 13 to Declaration of Terry R. Marston II

9. The Contractor was not aware of the lead contamination when it prepared its bid. · · Deposition of Nancy Gary, COE (Contracting Officer), 76:13-20 - Exhibit 7 to Declaration of Terry R. Marston II Deposition of Robert Mathews, Active Construction (Proj. Mgr), 24:3-12 Exhibit 13 to Declaration of Terry R. Marston II

10. The lead contamination was not something the contractor should have been aware when it prepared its bid. · · Deposition of Nancy Gary, COE (Contracting Officer), 76:13-20 - Exhibit 7 to Declaration of Terry R. Marston II Deposition of Nancy Gary, COE (Contracting Officer), 80:25, 81:1-10 Exhibit 7 to Declaration of Terry R. Marston II

11. The lead contamination was unusual and materially differed from what was ordinarily encountered in earthwork. · Paragraphs 27 & 28, Declaration of David Berglund

12. The Government issued a directive requiring the Contractor to dispose of the contaminated soil at a government-owned landfill nine miles from the location of the project. · Declaration of Terry R. Marston II, - Exhibit 5 , Written Directive

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· · · · · ·

Deposition of Robert Mathews, Active Construction (Proj. Mgr), 11:19-24 Exhibit 13 to Declaration of Terry R. Marston II Deposition of Nancy Gary, COE (Contracting Officer), 77:21-25, 78:1 Exhibit 7 to Declaration of Terry R. Marston II Deposition of Robert Mathews, Active Construction (Proj. Mgr), 30:8-11 Exhibit 13 to Declaration of Terry R. Marston II Deposition of James Packard, COE (Owner's Project Engineer), 59:9-16 Exhibit 8 to Declaration of Terry R. Marston II Deposition of Robert Mathews, Active Construction (Proj. Mgr), 12:7-25, 13:1 - Exhibit 13 to Declaration of Terry R. Marston II Deposition of Nancy Gary, COE (Contracting Officer), 48:10-21 - Exhibit 7 to Declaration of Terry R. Marston II

13. The discovery of the lead contamination was what caused the government to issue its directive to dispose of the soils at the landfill. · · Deposition of Nancy Gary, COE (Contracting Officer), 81:19-25, 82:1-2 Exhibit 7 to Declaration of Terry R. Marston II Deposition of Thomas Wilkin, COE (Owner's Asst. Project Engineer), 21:1625, 22:1-3 - Exhibit 9 to Declaration of Terry R. Marston II

14. The contract, without the directive, did not require the contractor to dispose of the surplus soil at a government-owned landfill nine miles from the project. N. Gary · Deposition of James Packard, COE (Owner's Project Engineer), 59:3-8 Exhibit 8 to Declaration of Terry R. Marston II

15. The Contractor incurred substantial additional costs when the soil contamination was discovered because it was unable to trade the soil in exchange for hauling it away. --. · · · Declaration of Terry R. Marston II, - Exhibit 14 , Written Claim Deposition of James Packard, COE (Owner's Project Engineer), 63:13-25, 64:1-8 - Exhibit 8 to Declaration of Terry R. Marston II Deposition of James Packard, COE (Owner's Project Engineer), 88:22-25, 89:1-6 - Exhibit 8 to Declaration of Terry R. Marston II

16. The costs the Contractor incurred were caused by its being required to transport the contaminated soil from the stockpile on site to a Government-designated landfill nine miles away. · Deposition of James Packard, COE (Owner's Project Engineer), 66:11-18 Exhibit 8 to Declaration of Terry R. Marston II

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· ·

Deposition of James Packard, COE (Owner's Project Engineer), 90:14-22 Exhibit 8 to Declaration of Terry R. Marston II Deposition of Robert Mathews, Active Construction (Proj. Mgr), 11:19-24 Exhibit 13 to Declaration of Terry R. Marston II

17. The costs the Contractor incurred were substantial. · · · Declaration of Terry R. Marston II, - Exhibit 14 , Written Claim Declaration of Terry R. Marston II, - Exhibit 6 , Active Letter - Exhibit 9 Deposition of James Packard, COE (Owner's Project Engineer), 90:14-22 Exhibit 8 to Declaration of Terry R. Marston II

RESPECTFULLY SUBMITTED this 19th day of December, 2007. MARSTON ELISON, PLLC

By s/ Terry R. Marston II . Terry R. Marston II, WSBA No. 14440 Marston Elison, PLLC 16880 NE 79th Street Redmond, WA 98052 Telephone: 425-861-5700 Facsimile: 425-861-6969 E-Mail: [email protected] Attorneys for Plaintiff

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CERTIFICATE OF SERVICE

I hereby certify that on this 19th day of December, 2007, a copy of the foregoing "Proposed Findings of Uncontroverted Fact" 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. Parties may access this filing through the Court's system.

s/ Terry R. Marston II