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

Case 1:06-cv-00436-MCW

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Filed 10/04/2006

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS ULYSSES, INC. Plaintiff, v. THE UNITED STATES, Defendant. ) ) ) ) ) ) ) ) )

No. 06-436C (Judge Williams)

AMENDED 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

The parties are not aware of a basis upon which to challenge the Court's jurisdiction at this time. b. Consolidation

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

The parties agree that trial of liability and damages in this case should not be bifurcated. d. Deferral

The parties agree that this case should not be deferred pending resolution of any other cases. e. Remand/Suspension

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

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f.

Joinder

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

The parties may submit cross-motions for summary judgment pursuant to RCFC 56 after discovery has been completed. h. Relevant Issues Plaintiff's Statement Of the Issues 1. Whether the government has waived the requirement for Ulysses to be on the approved source list and should pay Ulysses the total contract amount for Contract 4209 and 5456 of $95,115.00. 2. Whether Ulysses is an approved source by virtue of having previously supplied the item under prior government contracts, which were accepted. 3. Whether the government should in its discretion waive an approval requirement because Ulysses has supplied this item to U.S. government prime contractors to foreign governments under Foreign Military Sales. 4. Whether the agency improperly cancelled the Contracts because Ulysses began accelerated production of the 85 units immediately after award of 4209 on April 22, 2002, and production of 89 units immediately after award of Contract 5456 on June 22, 2002 as both contracts stated "ACCELERATED DELIVERY IS ACCEPTABLE AND DESIRED AT NO COST TO THE GOVERNMENT." (emphasis in original), and Ulysses had substantially manufactured the contracted items.

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Defendant's Statement Of the Issues 1. Whether the plaintiff tendered performance in accordance with the terms and conditions specified in the Government's purchase orders. 2. Whether the plaintiff was an approved source for the item ordered in the purchase orders. 3. Whether an irrevocable option contract was created between the Government and the plaintiff. i. Settlement

The parties do not currently anticipate conducting alternative dispute resolution procedures. However, the parties will assess the possibility of settlement as the case proceeds through discovery. j. Trial

As stated above, after discovery has been completed, the parties may submit crossmotions 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. At this time, the parties do not request expedited trial scheduling. k. Electronic Case Management

The parties have no special issue regarding electronic case management needs. l. Additional Information

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

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m.

Proposed Scheduling Plan

The parties propose the following discovery schedule: Fact Discovery Depositions of Fact Witnesses Expert Reports Expert Depositions February 28, 2007 April 30, 2007 June 29, 2007 August 31, 2007

Respectfully submitted, PETER D. KEISLER Assistant Attorney General DAVID M. COHEN Director

s/ Deborah A. Bynum DEBORAH A. BYNUM Assistant Director

s/ Sam Z. Gdanski SAM Z. GDANSKI SCOTT GDANSKI GDANSKI & GDANSKI, LLP 3 Rockwood Lane Suffern, NY 10901 Washington, D.C. 20007 Tel: (845) 362-4800 Fax: (845) 362-4700 Attorneys for Plaintiff October 4, 2006

s/ Elizabeth Thomas ELIZABETH THOMAS Trial Attorney Commercial Litigation Civil Division U.S. Department of Justice Attn: Classification Unit, 8th Floor 1100 L Street, N.W. Washington, D.C. 20530 Tel: (202) 353-4175 Fax: (202) 514-7965 Attorneys for Defendant

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CERTIFICATE OF FILING I hereby certify that on this 4th day of October, 2006, a copy of the foregoing "AMENDED 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/ Elizabeth Thomas