Free Answer - 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. 07-143C (Judge Firestone)

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

conclusions of law to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. FACTUAL ALLEGATIONS 2. The allegations contained in paragraph 2 constitute

plaintiff's characterization of its case, to which no answer is required; to the extent that they may be deemed an allegation of fact, they are denied. 3. Admits to the extent supported by the referenced

solicitation, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 3. 4. Admits to the extent supported by the contract cited,

which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 4.

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5.

Denies the allegation contained in paragraph 5 for lack

of knowledge or information sufficient to form a belief as to its truth. 6. Denies the allegation contained in paragraph 6 for lack

of knowledge or information sufficient to form a belief as to its truth. 7. The allegations contained in paragraph 7 constitute

conclusions of law 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 contents; otherwise denies the allegations contained in paragraph 7. 8. The allegations contained in paragraph 8 constitute conclusions of law 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 contents; otherwise denies the allegations contained in paragraph 8. 9. The allegations contained in paragraph 9 constitute conclusions of law 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 contents; otherwise denies the allegations contained in paragraph 9.

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10. The allegations contained in paragraph 10 constitute conclusions of law 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 contents; otherwise denies the allegations contained in paragraph 10. 11. The allegations contained in paragraph 11 constitute

conclusions of law 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 contents; otherwise denies the allegations contained in paragraph 11. 12. The allegations contained in paragraph 12 constitute

conclusions of law 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 contents; otherwise denies the allegations contained in paragraph 12. 13. The allegations contained in paragraph 13 constitute conclusions of law 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 contents; otherwise denies the allegations contained in paragraph 13.

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14. Admits the allegation contained in paragraph 14 to the extent supported by the referenced contract, which is the best evidence of its contents and purpose; otherwise denies the allegations contained in paragraph 14. 15. The allegation contained in paragraph 15 constitutes a

conclusion of law to which no response is required; to the extent that it may be deemed an allegation of fact, they are admitted to the extent supported by the referenced contract, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 15. 16. Admits the allegation contained in paragraph 16 that

"the contract documents authorized the Government to direct alternative dispositions of surplus soil." The remaining

allegations contained in paragraph 16 are 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. 17. The allegation contained in paragraph 17 constitutes a

conclusion of law and plaintiffs' characterization of its case to which no response is required; to the extent that it may be deemed an allegation of fact, it is denied. 18. The allegation contained in paragraph 18 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 admitted to

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the extent supported by the referenced contract, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 18. 19. Denies for lack of knowledge or information sufficient

to form a belief as to its truth. 20. Denies for lack of knowledge or information sufficient

to form a belief as to its truth. 21. Denies the allegation contained in paragraph 21 that

the Contractor held a belief that it could sell excavated soils for the cost of disposal for lack of knowledge or information sufficient to form a belief as to its truth. The remaining

allegation contained in paragraph 21 that the Contractor's belief was reasonable is 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. 22. Denies the allegations contained in paragraph 22 that

the Contractor held a "belief that surplus soils could be sold for what it would cost to dispose of them" and that "the Contractor did not include any amounts in its bid price for disposal of excavated soils" for lack of knowledge or information sufficient to form a belief as to their truth. The remaining

allegation contained in paragraph 22 as to Contractor's reliance upon its belief is a conclusion of law to which no response is required; to the extent that it may be deemed an allegation of

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fact, it is denied. 23. The allegation contained in the first clause of

paragraph 23 that "[a]cting according to its management of waste requirement under the main contract," is 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. Defendant denies the remaining allegations contained in paragraph 23, which consist of plaintiff's characterization of the contents of unspecified communications between plaintiff and defendant for lack of knowledge or information sufficient to form a belief as to its truth. Defendant avers that, to the extent that plaintiff may be

referring to "Request for Information 318" and "Request for Information 318R," which it identifies in paragraph 24 of the complaint, defendant admits the allegations contained in paragraph 23 that "Skanska informed the Government of Active's intention to use surplus excavated material outside the limits of Government land" to the extent supported by those documents, which are the best evidence of their contents; otherwise denies the allegations contained in paragraph 23. 24. 25. Denies. Denies for lack of knowledge or information sufficient

to form a belief as to its truth. 26. Denies the allegation contained in the opening clause

of paragraph 26 that the defendant "provid[ed] specific written

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authorization for [soil stockpiles] removal."

Admits the

allegation contained in the second clause of paragraph 26 that government inspectors found lead within the soil stockpiles to the extent that plaintiff may be relying on the April 7, 2007 "Stockpile Characterization Report: Whole Barracks Renewal Project, E Block, Fort Lewis, Washington" for its allegation that lead was found within the soil stockpiles, and to the extent supported by that document, which is the best evidence of its contents; otherwise denies the allegation contained in the second clause of paragraph 26 and specifically denies the allegation that "contamination" was found in the soil stockpiles. 27. Admits the allegation contained in paragraph 27 that

the government directed plaintiff to dispose of the soils at "Landfill #2;" otherwise denies the allegations in paragraph 27, including the allegations that Landfill #2 is located off of Fort Lewis property and that Landfill #2 is an approved hazardous waste facility. 28. Denies for lack of knowledge or information sufficient

to form a belief as to its truth. 29. Admits the allegation contained in paragraph 29 to the

extent supported by the referenced contract, which is the best evidence of its content; otherwise denies the allegations contained in paragraph 29. 30. Denies for lack of knowledge or information sufficient

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to form a belief as to its truth. 31. Denies for lack of knowledge or information sufficient

to form a belief as to its truth. 32. Denies for lack of knowledge or information sufficient

to form a belief as to its truth. 33. The allegations in paragraph 33 consist of plaintiff's

characterization of the content of unspecified communications between plaintiff and defendant. To the extent that plaintiff

may be referring to Serial Letter No. 16, which was submitted by plaintiff to defendant, defendant admits the allegations contained in paragraph 33 to the extent supported by that document, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 33. 34. Defendant denies the allegations in paragraph 34, which

consist of plaintiff's characterization of the content of unspecified communications between plaintiff and defendant for lack of knowledge or information sufficient to form a belief as to its truth. Defendant avers that, to the extent that plaintiff

may be referring to Serial Letter No. 16, which was submitted by plaintiff to defendant, defendant admits the allegations contained in paragraph 34 to the extent supported by that document, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 34. 35. Admits the allegation contained in paragraph 35 that

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the Government "directed" plaintiff to dispose of soils "at a designated location on Fort Lewis" to the extent that plaintiff may be relying on Serial Letter C-0031 for its allegation as to plaintiff, and to the extent supported by that document, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 35. 36. 37. Admits. Denies for lack of knowledge or information sufficient

to form a belief as to its truth. 38. Denies for lack of knowledge or information sufficient

to form a belief as to its truth. 39. 40. Denies. The allegations contained in paragraph 40 constitute a

conclusion 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 for lack of knowledge or information sufficient to form a belief as to their truth. 41. Admits the allegation contained in paragraph 41 to the

extent that plaintiff may be relying on "Serial Letter No. 30," dated December 5, 2005, for its allegation that "[o]n December 5, 2005, Skanska made a request on Active's behalf to the Government seeking an equitable adjustment to its contract price in the amount of $148,498.00 as compensation for costs associated with encountering contaminated soils on the project" and to the extent

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supported by that document, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 41. 42. Admits to the extent supported by the referenced

decision of the Contracting Officer, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 42. 43. Admits to the extent supported by the referenced

decision of the Contracting Officer, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 43. 44. Admits to the extent supported by the referenced

decision of the Contracting Officer, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 44. 45. Admits to the extent supported by the referenced

decision of the Contracting Officer, which is the best evidence of its contents; otherwise denies the allegations contained in paragraph 45. 46. The allegations contained in paragraph 46 constitute

conclusions of law and plaintiff's characterizations of its case to which no response is required; to the extent that they may be deemed allegations of fact, they are denied. 47. The allegation contained in paragraph 47 constitutes a

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conclusion of law and plaintiff's characterization of its case to which no response is required; to the extent that it may be deemed an allegation of fact, it is denied. 48. The allegation contained in paragraph 48 constitutes a

conclusion of law and plaintiff's characterization of its case to which no response is required; to the extent that it may be deemed an allegation of fact, it is denied. 49. The allegation contained in paragraph 49 constitutes a

conclusion of law and plaintiff's characterization of its case to which no response is required; to the extent that it may be deemed an allegation of fact, it is denied. 50. 51. 52. 53. 54. Denies. Denies. Denies. Denies. Denies that plaintiff is entitled to the relief set

forth in the prayer for relief immediately following paragraph 53, or to any relief whatsoever. 55. Denies each and every allegation not previously

admitted or otherwise qualified.

FIRST AFFIRMATIVE DEFENSE Plaintiff's claim is barred by the doctrine of estoppel. SECOND AFFIRMATIVE DEFENSE

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Plaintiff's claim is barred by the doctrine of waiver. THIRD AFFIRMATIVE DEFENSE Plaintiff's claim is barred by the doctrine of accord and satisfaction. 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 MARTIN F. HOCKEY, JR. Assistant Director 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 June 4, 2007 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on this 4th day of June, 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