Free Answer - District Court of Federal Claims - federal

Case 1:07-cv-00134-SGB

Document 10-3

Filed 06/26/2007

Page 1 of 5

DEPARTMENT THE ARMY OF
U. S. ARMY ENGINEER ISTRICT, ONOLULU D H FT- SHAFTER, HAWAII 96858-5¡140

REPLYTO ATTENTION OF

November I.2006

Contracting Division SUBJECT: ContractNumber DACA87-9 I -C-00 19. Termination Settlement Aliamanu ConservationPartners,L.P. ATTN: Robert A. Freeman,President 7465 West Lake Mead, Suite 100 Las Vegas, Nevada 89128 Dear Mr. Freeman: Referencemy Final Decision of the ContractingOfficer, dated31 October 2006, that was faxed and mailed to your attention,on that date. Enclosedis contractmodification no. P00215, dated I November 2006,which establishedthe final contract amount of $41, 237,389, basedon my termination settlementdetermination. Total payment made under the contract is $47,452,392. You are hereby notified that the Contractoris required to pay the Governmentthe sum of $6,215,003(the overpaymentamoturt)plus interest in the amountof $719,609,for a total repa¡rment amountof $6,934,612 within fifteen (15) calendardays of the effective date (l November 2006) of the enclosedcontract modification. Paymentinstructions are included in paragraphl4.C) b) i) of that contract modification.

Respectfully,

'/7<----=--'-.
i,

-=)."/
Enclosure

David Y. Kam Termination Contracting Offi cer

EXHIBIT B

AMEI\DMENT OF'SOLICITATIO'
NO. 2. AMENDMENT/MODIFICATON

Case 1:07-cv-00134-SGB

TODTFICATIONOF CONTRACT
4. REQUISMON/PURCHASE NO. REQ. SEESCHEDUI..E 7. ADMINISTERED (lfotherthü itm6) BY FORT RESIDENT OFFICE SHAFTER USAED. HONOLULU 230 BtDG FTS|IAFTER HlsS&54,10

Document 10-3

CONTRACTID CODE Filed 06/26/2007 Page 2 of 5 J

1

1

4

3. EFFECTTVE DATE

5. P ROJECT NO.(Ifapplicable)

P00215 6.rssuED BY
CONTRiCCTINGDMSION USAEÐ. HONOLULU

01-l'bv-2006 coDE lvw128A

coDE lJ3[/0500

Br..oGw

FT. g{AFTER HI S5E544O

8 .NAME AND ADDRESSOF@NTRACTOR (No., Sreet, County,Sate andZip Code)
AJAMANU CONSERVATIONPARTNERSL P LAXEMECD ROAD 7465VI¿EST gJfTEl@ ¡,¡V89128 LA.SVEGA.S

94. AMENDMENT OF SOLICXTATIONNO.

98. DATED(S,E rrEM l l) X 1OA. MOD. OF CONTRACT/ORDERNO. DACA87-91-G0019
l0B. DATED (SEEITEM 13)

CODE ORCLS
abovenudered solicitation is mdetl OÊrm¡st acknowledgereipt

l¡',qcn-nvcnop
as set 6rth in Itm 14. The hour and date specifed ñrmeipt ofoÊr

X 11-FeÞ1991
is rot eßended.

I I. THIS ITEM ONLY APPLIESTO AMENDMENTSOF SLICXTATIONS
ltte it n "ra*a"a, I oftheñllowing ncthods: thehourmd date spæifed in the solicitation oræ amded by one

ofthis amdæntpriorto

(b)ByæknowledgingreceiptofthisamdmtonschæpyoftheoÊrsubritted; _copiesoftheamdænt; FAILUREOFYOURACKNOWLEDGMENTTOBE or(c)Byscparateletterortelegmwhichincludesa¡eÊmætothesolicitationmdaændmtnuúm. RECETVEDATTHE PLACEDESIGNATED FORTHE RECEIPTOFOFFERSPRIORTOTTIE HOURAND DA'IE SPECIFIED MAY RESULTIN (a)BycoryletingltemEÐd15,mdretuming you desire to chmge m oÊr aludy subnitted, such changemy be mde by telegramor letter, REJECIION OF YOUR OFFER. Ifby virtue ofthis mdmt provided eachtelegnmor lttrmkes reÊmæ to the solicitation md this amduent, and is rcceived priorto the opmitrg hourand date specifed.

12. ACOOUNTINGAND APPROPRIATIONDATA Qf required)

1 3 THIS ITEM APPLIESONLY TO MODIFICATIONSOF æNTRACTS/ORDERS .
NO. IT MODIFIES T TIE CONTR.A,CT/ORDER AS DESCRIBEDIN ITEM 14. ST FORTH IN ITEM 14 ARE MADE IN THE PURSUANTTO: ($ecify authority) THE CHANCES A. THIS CIIANGE ORDERISISSUED CONTRÀCT ORDERNO. IN ITEM IOA. in B. THE ABOVE NUMBERED CONTRACT/ORDERIS MODIFIED TO REFLECT TIIE ADMINISTR ATwE CHANGES(srrchaschanges paying TO office, appropriationdate,etc.) SET FORTHIN ITEM 14, PLJRSUANT THE AUTHORITYOF FAR43.l03(B). TO C. THIS SJPPLEMENTAL AGREEMENT ISENTERED INTO PTJRSUANT AUTHORITY OF:

X D. OTHER(Seciff type of modificationandaúhority)
E. IMPORTANT: Contractor [| isnot, n

19&4) of FAR52.249-0002Terninationfor Oonvenience the Gov't (Fixed-Pr'¡ceXApr isreçiredtosigrrthisdocurnentandretr¡rn copiestotheissuingoffice.

inchding solicitation/contract su$ect matter by 14. DESCRIPTION OF AMENDMENT/I4ODIFICATION (Organized UCF æction headings, urherefeasible.) ModificationControlNr¡nber: j3ct9mM735 FAlvü-Y I-þUSNG AFEA, OAI-U, HAWAII SHAREÐEIGRGY SAVï.¡GS FROGRAM ALtAfvlAfV.J (See continuedpages)

Except as prcvided hqei¡, all tm

md ænditions ofthe documt

reÊretrcdin ltmgA

or l0A, as hertoôrc chüged, remins unchuged and in ûll ôrce and eÊct.

154. NAME AND TITLE OF SGIER (Type or print)

OFFICER(Type or print) 164. NAME AND TITLE OF CONTRAC'TING
DÍ\6ION DAVIDYI(A¡ú / DIRECTOR, CONTRACTING TBj æ438-$4t¡ EMAIL daúd.y.lør@Gacesmldl

58. @NTRACTOWOFFEROR (Sgnatureofperson aúhorizedto sign)

I5C.DATESG{ED

168.UMTED STATESOF AMERICA

16C. DATESGIED 01-lbv-2006
STANDARD FORM 30 @ev 0-83 Prescribedby GA FAR (48 CFR)53.243

By Æ
30-1 05-04
BY APPROIYED OIRM 1I-84

-r'7-24-+'¿---_

(Signature ContractingOfficer) of

EXHIBIT B

Case 1:07-cv-00134-SGB

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DACA87-91-C-0019 P00215 Page2 of 4

SECTION SF 30 BLOCK 14 CONTINUATION PAGE

A)

The Contract for Shared Energy Savings Prograrr¡ Aliamanu Family Housing Area, Oahu, Hawaii is hereby modified to incorporate the final contractprice, as establishedin the Conhacting Officer's Final Decision (COFD) dated3l October2006. SUMMARY OF CONTRACT MODIFICATION: This modihcation includes the following: a) b) with the contract, including the Notice of Termination dated 12 August 2004. Resolvesall issuesassociated All contact termination inventory (including scrap) has been retained or acquired by the contactor, sold to third parties, returned to suppliers, delivered to or stored for the Government or otherwise properly accounted for, and that all proceeds and retention credits have been used in atriving at this agreement. The frnal conhact price includes any and all costs for all partners,subcontactors, suppliers, and/or vendors. All items of costs which were used in arriving at the amount of the final contact price are (i) properly allocable to the termi¡uted confract, (ii) do not exceed the reasonable quantitative requirements of the terminated contact, and (iü) do not include any items reasonably usable without loss to the Contactor on its other work. All the right, title, and interest, if any, that the Contractor received, or is entitled to receive, in and to any termi¡ation inventory not otherwise accouuted for properly is hereby transferred, conveyed, and assignedto the Govemment. The Contractor shall, within ten (10) calendardays after the date of this modificatior¡ pay to each of its immediate subcontactors (or their respective assignees)the amounts to which they are entitled, after deducting any prior payments and, if the Contuactor so elects, any amounts due and payable to the Contractor by those subcontractors. Regardless of any other provision of this modificatior¡ the following rights and liabilities of the parties under the contract are reserved: All rights and liabilities, il any, of the parties, as to matterscoveredby any renegotiation authority. All rights and liabilities, if any, of the parfies under those clauses inserted in the contract becauseof the requirements of Acts of Congress and Executive orders, including, without limitation, any applicable clausesrelating to: labor law, contingent fees, domestic articles, and enrploymentof aliens. iiÐ All rights and liabilities of the parties arising under the contact and relating to reproduction rights, patent in-fringements, inventions, or applications for patents, including rights to assignments, invention reports, licenses, covenants of indemnity against patent risks, and bonds for patent indemnity obligations, together with all rights and liabilities under the bonds. iv) All rights and liabilities of the parties relating to Government properfy furnished to the Contractor for the performance of this contact. v) All rights and liabilities , if any, of the parties under those clausesof the contract relating to price reductions for defective cost or pricing data. Ð iÐ

B)

c) d)

e)

Ð

g)

C) CHANGE IN CONTRACT PRICE: As a result of this contract modification, the fural contract price is hereby established as Forty-One Million, Two Hund¡ed Thirfy-Seven Thousand, Th¡ee Hundred Eighty-Nine and Noi I 00ths Dollars ($41,237,389.00). a) The Conkactor has already received monthly payments totaling 546,379,724for work and services performed, or items delivered, under the conpleted portion of the contact. The Government confrrms the right of the Conftactor, subject to paragraphB(g) of this modification, to retain only $41,237,389of this

EXHIBIT B

Case 1:07-cv-00134-SGB

Document 10-3

Filed 06/26/2007

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DACA87-91-C-0019 P00215 Page3 of4

amount as the total amount for which the Contractor is entitled in conplete and final settlement of the contuact. The Contractor shall repay the Governmentthe excesspayment amount of $5,142,335. b) Further, the Contractor has also received $1,072,668as partial termination paymentsunder the conhact. The Contractor is not entitled to these partial termination payments and the Contactor will return this amount to the Government as part of complete and final settlement of the contract. Ð The Contractor is required to pay to the Governmentthe sum of $6,215,003 (the overpaymentamount) plus interest in the amount of $719,609 (the repaymentinterest) for a total repayment amount of $6,934,612within fifteen (15) calendardays of the effective date of this modification. The Contractor's payment shall referencethe subject contact and be payable to "FAO USACE, Honolulu District". Payment shall be mailed to USACE, Honolulu DistricÇ Attn: CEPOH-RM-F, Building 230, Fort Shafter,HI 96858-5440. If the Contractor fails to make payment in full, within the time specified in subparagraph "i" above; in accordancewith FederalAcquisition Regulation (FAR) Part 49.1\2-1, paragraph(g), the total repayment amount of $6,934,612 will be increased for additional interest; and the interest shall be cornputedat the rate establishedby the Secretaryof the Treasury under 50 U.S.C. App. 1215(b)(2) from the date the excesspayments were received by the Contractor to the date of repayment to the Government. If the Contractor fails to make payment in full, within the time specified in subparagraph "i" above; the Termination Conhacting Off,rcermay initiate conEact debt collection actions under FAR Part32.6.

iÐ

iii)

iv) Repayment of the full amount and within the time specified in subparagraph "i" above; constitutes complete settlement of the amount due either conüacting party as a result of the complete termination of the contrac! and all other demands and liabilities of the Confractor and the Govemment under the contuact,except as provided in paragraphB(g) of this modification. D) CHANGE IN CONTRACT DURATION: duration endedon 30 September2004. E) As a result of the Notice of Termination, the conüact performance

CHANGE TO THE CONTRACT SPECIFICATIONS: As a result of this modificatioq the contract is hereby modified to replace the entire Bidding Schedule, and any previously established contact payment schedule, with a single ConEact Line ItemNumber (CLIN) as shownbelow:

Item No. 1
F)

Description Final ContractAmount

Ouantity 1

Unit JOB

Amount $41,237,389.00

CIIÄNGE TO CONTRACT DRAWINGS: There are no changesto any contract drawings as a result of this modification.

G) The contract adjustment set forth in this modífication constitutes full and final settlement on behalf of the Confractor, and all of its subcontractors and suppliers, for all costs and markups directly or indirectly attibutable to any and all Government-caused changes, delays, inpacts, or any other additional costs, including but not limited to those issues described above and/or any and all issuespreviously identifred by the Confractor and submitted in writing to the Government. H) The contact adjustnent set forth in this modifrcation representsa complete and final equitable contuact adjustrnent for any and all claims by the Confiactor against the Government arising under or relating to this contact and releasesthe Government from any and all liability under this contact for any further adjustments to this contract, including, but not limited to, all direct or indirect costs, all contact administration costs, interest pursuant to the Conhact Disputes Act of 1978 or any other interest or any other relief.

EXHIBIT B

Case 1:07-cv-00134-SGB

Document 10-3

Filed 06/26/2007

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DACA87-91-C-0019 P00215
4 Page of4

from 1850C. AliamanuDr., Bunker a of alsoincludes change Contactor'smailingaddress This modiñcation NV Suite100,LasVegas, 89128. to7465WestLakeMeadRoad, HI 27C,Honolulu, 96818
End of Modification

EXHIBIT B