Free Joint Preliminary Status Report - District Court of Federal Claims - federal

Case 1:07-cv-00143-MMS

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

No. 07-143 (Judge Firestone)

JOINT PRELIMINARY STATUS REPORT Pursuant to Appendix A of the Rules of the United States Court of Federal Claims ("RCFC"), plaintiff and defendant respectfully submit the following joint preliminary status report: a. Jurisdiction

Plaintiff states that this Court has jurisdiction over this action pursuant to 28 U.S.C. § 1491 and 41 U.S.C. § 609(a)(1). Defendant is not aware at this time of any basis upon which to challenge this Court's jurisdiction. b. Consolidation

The parties agree that this case should not be consolidated with any other case. c. Bifurcation

The parties agree that this case should not be bifurcated. d. Deferral

Plaintiff believes that further proceedings in this case should not be deferred pending consideration of another case before this Court or any other tribunal.

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e.

Remand/Suspension

The parties agree that no remand or suspension will be sought. f. Joinder

The parties agree that no additional parties will be joined. g. Dispositive Motions

Plaintiff believes that the dispute in essence a matter of contract interpretation, rather than a factual dispute. As such, plaintiff expects the case will be fully resolved on cross-motions for summary judgment to be filed under RCFC 56. Defendant anticipates filing a motion for summary judgment on the issue of liability at the close of discovery pursuant to RCFC 56. h. Relevant Issues

Plaintiff identifies the following relevant factual and legal issues: 1. The contract obligates the Contractor to perform a specific scope of work for a specific price. 2. The contract obligates the Contractor to perform extra work when directed to do so by the Government. 3. The contract obligates the Government to pay for extra work it directs the Contractor to perform. 4. Fort Lewis at 87,000 acres (equating to 136 square miles) is one of the largest military reservations in the United States. 5. The contract does not require the Contractor to transport soils offsite at no cost. 6. The contract requires the Contractor to excavate soils on the project site. 7. The contract identifies three categories of excavated soils: "satisfactory soils," "surplus satisfactory soils," and "unsatisfactory soils." 2

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8. The contract requires unsatisfactory soils to be disposed of off of Government property. 9. The contract requires satisfactory soils to be used on the project "insofar as practicable." 10. The contract requires surplus satisfactory soils to be "disposed of" off of Government property. 11. The contract requires "specific written authorization" before surplus satisfactory materials are "wasted." 12. The Government owned the soil on its property independent of the terms of the construction contract. 13. The contract obligates the Contractor to be pro-active in the management of "construction and demolition waste" 14. The contract states that "construction and demolition waste" includes [1] products of demolition or removal, [2] excess or unusable construction materials, [3] packaging materials for construction products, and [4] other materials generated during the construction process, but not incorporated into the work. 15. The contract requires the contractor to consider the availability of viable markets in the management of waste. 16. The contract states that revenues or other savings obtained for salvage or recycling shall accrue to the Contractor. 17. The Contractor specifically requested Government confirmation of its proposal to waste 10,000 yards of surplus satisfactory material offsite.

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18. The Government provided written confirmation of the Contractor's proposal to waste 10,000 yards of surplus satisfactory material offsite. 19. After providing written confirmation, the Government discovered the soils were contaminated with lead. 20. The Government directed the Contractor to dispose of the contaminated soils at Landfill #2 on Fort Lewis, but off of the construction site. 21. The government paid to spread the materials at the landfill, but refused to pay the Contractor the cost of transporting the material from the project site to the landfill. 22. The contractor incurred approximately $150,000 of added cost due to being required to transport these soils to Landfill #2. 23. The contamination of these soils was a subsurface or latent physical conditions at the site which differed materially from those indicated in the contract. 24. The contamination of these soils was an unknown physical condition at the site of an unusual nature which differed materially from those ordinarily encountered and generally recognized as inhering in work of the character required in the contract. 25. The pricing of the extra work performed by the contractor is fair and reasonable. Defendant identifies the following relevant factual and legal issues: 1. Whether the contract at issue in this litigation vested title to excavated soils in the

Government, and reserved to the Government the unilateral right and authority to direct the disposition of excavated soils, including to another site on the Fort Lewis installation, through provisions that (a) direct the contractor to dispose of clean fill materials generated under the contract on Fort Lewis as directed by the Government (Section 01410-3.5.2); (b) preclude the contractor from wasting any satisfactory excavated material without the specific written 4

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authorization of the Government (Section 02300-1.9); and (c) leave no room for the contractor to determine unilaterally the disposition of excavated soils in the absence of a Government determination that the soils are excess to its needs (Sections 02300-1.9, 02300-3.2, 02300-3.5, 02315-3.10). 2. Whether plaintiff has erred in relying upon Section 01572-1.2 of the contract, which

pertains, not to the disposition of excavated soils, but rather to "products of demolition or removal, excess or unusable construction materials, packaging materials for construction products, and other materials generated during the construction process but not incorporated into the work," as authority for its contention that it is entitled to compensation for the value of the excavated soils at issue in this case. 3. Whether the Government's response to RFI's 318 and 318R constituted specific

written authorization to plaintiff to remove excavated soils from the Fort Lewis installation for its own uses, and whether plaintiff relied on any of those documents to its detriment. 4. Whether plaintiff, in fact, expected to resell or exchange soils excavated under the

contract at the time that it entered its bid, and whether that expectation was reasonable. 5. Whether plaintiff's bid on the contract at issue in this litigation reflected an

allowance for the expected resale or exchange value of soils excavated from the project. 6. Whether, in directing plaintiff to transport excavated soils to Landfill #2, a site on

the Fort Lewis installation, the Government, rather than merely requiring that plaintiff fulfill its obligations under the contract, ordered a change in performance under the contract, such that plaintiff was entitled to additional compensation for the change in work. 7. Whether plaintiff, in transporting excavated soils to Landfill #2, incurred any costs

above and beyond that which it would otherwise have incurred in performing the contract. 5

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8.

Whether the damages claimed by plaintiff are reasonable, justified, and supported

by contemporaneous documentation and invoices. i. Settlement

Plaintiff remains willing to entertain settlement discussions at any time. Defendant states that defendant will consider whether settlement or ADR may be appropriate after the resolution of any motions for summary judgment, but is unable to commit to either settlement or ADR at this early stage of litigation. j. Trial

The parties anticipate the submission of cross-motions for summary judgment pursuant to RCFC 56. If dispositive motions are not submitted, or if they are not completely dispositive of this action, the parties anticipate proceeding to trial or to ADR, if appropriate. The plaintiff does request expedited trial scheduling given the simplicity of the issue in dispute. k. Electronic Case Management

Parties have no special electronic case management needs. l. Additional Information

There is no additional information of which the Court should be aware at this time. m. Proposed Discovery Plan

The following is a proposed discovery plan for this case: Event 1. 2. 3. 4. Initial disclosures Close of non-expert discovery Designation of experts, if any Plaintiff's expert report(s), if any September 30, 2007 September 1, 2007 September 21, 2007 6 Plaintiff's proposed date Defendant's proposed date August 13, 2007 January 31, 2008 March 1, 2008 March 31, 2008

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5. 6. 7. 8.

Defendant's expert report(s), if any Plaintiff's rebuttal expert report, if any Defendant's rebuttal expert report, if any Close of expert discovery, including depositions, if any

September 14, 2007 September 21, 2007 N/A September 30, 2007

April 30, 2008 May 14, 2008 May 28, 2008 June 27, 2008

Plaintiff proposes that discovery be deemed complete if no expert witness is designated by plaintiff or defendant by September 14, 2007. Defendant proposes that discovery be deemed complete if no expert witness is designated by plaintiff or defendant by March 1, 2008.

Respectfully submitted, PETER D. KEISLER Assistant Attorney General JEANNE E. DAVIDSON Director

s/ Martin F. Hockey, Jr. MARTIN F. HOCKEY, JR. Assistant Director s/ Terry R. Marston, II TERRY R. MARSTON, II MARSTON ELISON, PLLC 16880 NE 79th Street Redmond, WA 98052 Tel: (425) 861-5700 Fax: (425) 861-6969 s/ A. Bondurant Eley A. BONDURANT ELEY Trial Attorney Commercial Litigation Branch Civil Division U.S. Department of Justice Classification Unit, 8th Floor Washington, D.C. 20530 Tel: (202) 616-8254 Fax: (202) 514-8624 Attorneys for Defendant

Attorney for Plaintiff August 1, 2007

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CERTIFICATE OF SERVICE

I hereby certify that on this 1st day of August, 2007, a copy of the foregoing "JOINT PRELIMINARY STATUS REPORT" 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/A. Bondurant Eley