Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:06-cv-00345-EGB

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IN THE UNITED STATES COURT OF FEDERAL CLAIMS

CASE NO.: 06-345-C JUDGE: ERIC G. BRUGGINK GRACE AND NAEEM UDDIN INC., Plaintiff, v.

THE UNITED STATES, Defendant. __________________________________/ AMENDED COMPLAINT Plaintiff, "GNU"), by and GRACE AND NAEEM UDDIN, INC., (hereinafter herein sues

through

undersigned

counsel,

Defendant, THE UNITED STATES by and through the UNITED STATES DEPARTMENT OF AGRICULTURE, (hereinafter "USDA") and in support states as follows: NATURE OF THE ACTION 1. This is an action for breach of contract. JURISDICTION AND VENUE 2. This is an action is for breach of contract and is a

direct appeal of a Contracting Officer's decision(s).

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3.

This Court has jurisdiction over the subject matter of

this action pursuant to 41 § 609 (a) (1) U.S.C.A., 41 § 609 (3) U.S.C.A. 4. 5. Plaintiff GNU is a Florida Corporation. At all times relevant to this action, GNU's principal

place of business was located in Miami-Dade County. 6. Defendant the United States is subject to the

jurisdiction of this Court arising out of a contract entered into by its administrative agency, the United States Department of Agriculture. 7. GNU has performed all conditions precedent to the

bringing of this action, or such conditions have been waived or otherwise excused. 8. GNU has been forced to retain the undersigned law firm

and has agreed and is obligated to pay reasonable attorney's fees for its services. COUNT I - BREACH OF CONTRACT 9. GNU incorporates Paragraphs 1 through 8 above as if

fully set forth herein. 10. On or about October 1, 2003, GNU entered into a

Contract Agreement with the USDA pursuant to which GNU would provide labor, materials, equipment and services necessary for the construction of a facility commonly known as the Subtropical 2

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Horticulture Research Center (hereinafter "PROJECT"), located in Miami-Dade County, Florida. 11. The Contract was administered pursuant to the Federal Regulations. The F.A.R. are too voluminous to

Acquisition

attach, but upon information and belief are in the possession of defendant and are incorporated herein. 12. Pursuant to the contract, the USDA was required to

provide GNU with plans and specifications that detailed the work required for the construction of the PROJECT. The plans and

specifications are too voluminous to attach but upon information and belief are in the possession of the Defendant and are

incorporated herein. 13. The plans and specifications were deficient with

respect to numerous aspects of the PROJECT. 14. On or about March 15, 2004, GNU raised issues and

concerns relating to the plans and specifications in a meeting with the USDA and JACOBS FACILITIES INC., the PROJECT Architect. 15. Among the issues raised by GNU was that no available

window system satisfied all of the requirements included in the plans and specifications. 16. GNU hired a consultant to determine possible solutions

to the problems it faced with the window system as specified in the plans and specifications. 3

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17.

The USDA and JACOBS FACILITIES INC., the Architect and

Owner's representative on the PROJECT, chose a window system from five options provided by GNU's consultant. 18. The selected window system required GNU to modify an

existing window system and seek Miami-Dade County approval prior to installing the new window system on the PROJECT. 19. The required modification and Miami-Dade County

approval of the window system delayed the PROJECT. 20. The required modification and Miami-Dade County

approval of the window system added to the cost of the PROJECT. 21. the The USDA and JACOBS FACILITIES INC., were notified of time and costs associated with the required

increasing

modification and Miami-Dade County approval prior to selecting the window system. 22. is Pursuant to the Federal Acquisition Regulations, GNU to a change of contract price and extension of

entitled

contract time resulting from the window system modification. 23. On or about February 2, 2005 GNU submitted a Request

for Change Order for a time extension of 149 days and additional costs associated with additional work required to modify the window system. A copy of the Request for Change Order is

attached hereto as EXHIBIT "A".

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24.

Prior to submitting the change request, GNU submitted A copy of the time impact

a time impact analysis to the USDA.

analysis is attached hereto as EXHIBIT "B." 25. On or about April 29, 2005 the USDA responded to GNU's

change request and materially breached the Contract Agreement by failing to approve GNU'S change request. A copy of the USDA's The Contracting

response is attached hereto as EXHIBIT "C". Officer stated:

RCO-34 and NOC-003, received February 8, 2005,in the amount of $356,660, is denied. You are referred to Federal Acquisition Regulation (FAR) 52.233-1, Disputes, for claim filing procedures, if the Government's position on this issue is to be disputed. A claim by the Contractor must be writing. You are reminded that a written demand or written assertion by the Contractor seeking the payment of money exceeding $100,000, is not a claim under the Act until certified. 26. In addition to the delays caused by the window system,

GNU suffered additional delays due to errors and omissions in plans and specifications. 27. The problems GNU experienced resulting from the plan

and specification deficiencies include but are not limited to: a. The Roof System b. Roof Deck Design c. Acid Piping d. Power to the Lift Stations 5

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e. The Layout of Sewer Mains f. The Finish Floor Elevation 28. GNU submitted other change orders and requested other

time extensions that the USDA declined. 29. The plans and specifications included requirements for

a roofing system that could not be satisfied by any existing products. 30. The plans and specifications included a roof deck

design that did not satisfy wind pressure requirements. 31. the The plans and specifications included instructions for of Acid Piping that required numerous

installation

revisions. 32. The plans and specifications did not properly specify

how GNU was expected to supply power to the lift stations. 33. conflicted PROJECT. 34. The USDA and JACOBS FACILITIES INC., failed to The with plans and specifications utilities and for the sewer at main the

existing

landscaping

promptly resolve this issue, creating additional delays to the PROJECT. 35. The plans and specifications were deficient with

respect to the finish floor elevation.

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36.

GNU requested 496 days due to the insufficient plans

and specifications on the PROJECT. (149 days due to the window system and an additional 347 days related to other issues). 37. In an attempt to mitigate delay GNU continually

submitted Requests for Information from JACOBS FACILITIES INC., on the PROJECT. 38. JACOBS FACILITIES INC., failed to respond in a timely

manner to GNU's Requests for Information. 39. Despite GNU's efforts to reduce delays, the USDA

Contracting Officer terminated GNU from the Project on or about August 2, 2005. 40. See EXHIBIT "D."

GNU's progress to that date was substantial but the

USDA refused to consider a letter sent on July 27, 2006 by counsel for GNU that detailed GNU's progress. 41. The Contracting Officer did See EXHIBIT "E." not take into

consideration the delays to the PROJECT that were beyond the control of GNU. 42. The Contracting Officer did not consider the impact of

erroneously denied change order requests prior to finding GNU in default. 43. Surety, Monitor CAROLINA the Surety CASUALTY decision Managers, of to Inc., on behalf the of GNU's to the

AMERICA, terminate 7

requested GNU

USDA of

reconsider

because

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substantial PROJECT. 44. from

delays

it

would

cause

to

the

completion

of

the

See EXHIBIT "F." The USDA proceeded with termination on despite of notice

Monitor

Surety

Managers,

Inc.,

behalf

CAROLINA

CASUALTY of AMERICA, that this would cause unnecessary delays to the PROJECT. 45. See Exhibit "F."

The cost to complete the PROJECT increased due to the

USDA Contracting Officer's decision to terminate GNU. 46. The time to complete the PROJECT was increased due to

the USDA decision to terminate GNU. 47. After the USDA terminated GNU, CAROLINA CASUALTY of An

AMERICA entered into a Takeover Agreement with the USDA.

unexecuted copy of the Takeover Agreement is attached hereto as EXHIBIT "G." copy of the Upon information and belief this is an accurate actual agreement between CAROLINA CASUALTY of

AMERICA and the USDA and the USDA has a copy of the actual agreement. 48. an GNU is liable to CAROLINA CASUALTY of AMERICA through agreement for any costs that exceed the

indemnification

original contract price plus approved change orders. A copy of the indemnification agreement is attached hereto as EXHIBIT "H."

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49.

CAROLINA CASUALTY of AMERICA requested retaining GNU

as its replacement contractor to finish the work remaining to close out the PROJECT. 50. The USDA refused CAROLINA CASUALTY of AMERICA's

request to retain GNU as its replacement contractor. 51. CAROLINA CASUALTY of AMERICA secured new contracts to

finish the work remaining to close out the Project. 52. CAROLINA CASUALTY of AMERICA was forced to pay higher prices under the new subcontract agreements between SURETY and the subcontractors. 53. The cost to complete the PROJECT increased directly

due to the USDA Contracting Officer's decision not to accept GNU as CAROLINA CASUALTY of AMERICA's replacement contractor. 54. The time to complete the PROJECT was extended as a

consequence of the USDA's failure to accept GNU as CAROLINA CASUALTY of AMERICA's replacement contractor. 55. The USDA's failure to approve time extension requests

and change order requests, the decision to terminate GNU and the inapplicable grounds for termination are all material breaches of the contract. 56. GNU is liable to CAROLINA CASUALTY of AMERICA for

reasonable costs in excess of the contract amount pursuant to the attached Exhibit "H." 9

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57.

On or about November 7, 2007 GNU submitted a certified

claim for one million six hundred fifty six thousand sixty one dollars and fifty cents ($1,656,061.50) in monetary damages to the USDA contracting officer responsible for the Subtropical

Horticultural Research Center. A copy of GNU's certified claim is attached hereto as EXHIBIT "I." 58. fifty GNU's monetary damages one of one million and six fifty hundred cents

six

thousand

sixty

dollars

($1,656,061.50) reflect the amounts GNU paid to the surety in completion of the Project. 59. GNU's certified claim alleges the same factual and

legal bases that give rise to this action. 60. On or about April 23, 2008, GNU's certified claim was

denied in its entirety by the USDA contracting officer. A copy of the contracting officer's denial letter is attached hereto as EXHIBIT "J." 61. GNU is entitled to monetary damages as a direct and

proximate cause of the USDA's wrongful termination in the amount of one million six hundred fifty six thousand sixty one dollars and fifty cents ($1,656,061.50). 62. surety to GNU is entitled to any additional monies paid to the complete the PROJECT as the PROJECT is not yet

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complete

and

costs

to

be

expended

by

CAROLINA

CASUALTY

of

AMERICA are not entirely fixed. 63. GNU is entitled to attorneys' fees pursuant to the

Equal Access to Justice Act, 28 U.S.C. § 2412. WHEREFORE, Plaintiff GRACE AND NAEEM UDDIN, INC., request judgment for damages of one million six hundred fifty six

thousand sixty one dollars and fifty cents ($1,656,061.50) for wrongful termination, plus interest, as well as recovery of any additional monies paid to CAROLINA CASUALTY of AMERICA resulting from the additional project costs. Moreover, GRACE AND NAEEM

UDDIN, INC., seeks legal costs and attorney's fees and such other relief as this Court deems equitable and just. Respectfully submitted, s/ David R. Elder Attorney for Plaintiff DAVID R. ELDER Elder & Lewis, P.A. Bayview Executive Plaza, Suite 301 3225 Aviation Avenue Coconut Grove, FLA 33133 Tel: (786) 314-5155 Fax: (503) 314-5811

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CERTIFICATE OF FILING I hereby certify that on May was 7, 2008 a copy of the as I

foregoing Exhibit

"AMENDED to the

COMPLAINT" Motion of for this

filed to

electronically Amend be Complaint. sent to

"A"

Leave filing

understand

that

notice

will

all

parties by operation of the Court's electronic filing system. Parties may access this filing through the Court's system.

s/ David R. Elder Attorney for Plaintiff DAVID R. ELDER USCFC BAR NO Application Pending FLA. BAR NO. 272442 Elder & Lewis, P.A. Bayview Executive Plaza, Suite 301 3225 Aviation Avenue Coconut Grove, FLA 33133 Tel: (786) 314-5155 Fax: (503) 314-5811

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