Free Motion to Compel - District Court of Federal Claims - federal

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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. __________________________________/ PLAINTIFF, GRACE AND NAEEM UDDIN, INC.'S MOTION TO REQUEST THE TRIBUNAL TO DIRECT THE CONTRACTING OFFICER TO ISSUE A DECISION REGARDING GRACE AND NAEEM UDDIN, INC.'S CLAIM Plaintiff, GRACE AND NAEEM UDDIN, INC., (hereinafter

"GNU"), by and through undersigned counsel and pursuant to the applicable Rules of the United States Court of Federal Claims hereby files this Motion to Request The Tribunal Concerned To Direct The Contracting Officer To Issue A Decision Regarding GNU's Claim and states as follows: 1. officer On or about GNU's November 9, 2007 claim the for USDA one contracting million six

received

certified

hundred fifty six thousand sixty one dollars and fifty cents ($1,656,061.50) arising from its wrongful termination from the project commonly known as the Subtropical Horticultural Research

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CASE NO.: 06-345-C Center in Miami, Florida (hereinafter "Project"). A copy of

GNU's Claim and Exhibits is attached hereto as Exhibit "A." 2. In a letter dated December 20, 2007 the Contracting

Officer informed GNU, among other things, that "...in accordance with Federal Acquisition Regulation (FAR) Subpart 33.211(c)(2) that a decision regarding your claim will be provided to you by March 7, 2008." A copy of the letter from Contracting Officer, Regina M. Herchak to Naeem Uddin, dated December 20, 2007 is attached hereto as Exhibit "B." 3. With respect to the timeframe of the decision by the officer on a claim of this nature, FAR Subpart

contracting

33.211(c)(2) states: (c) The contracting officer shall issue the decision within the following statutory time limitations: (2) For claims over $100,000, 60 days after receiving a certified claim; provided, however, that if a decision will not be issued within 60 days, the contracting officer shall notify the contractor, within that period, of the time within which a decision will be issued. 4. Prior to the expiration of March 7, 2008, GNU received

a second letter by the Contracting Officer that again informed GNU that there would be delay in issuing a decision with respect to the claim. The letter, dated February 13, 2008, stated, in pertinent part: ...due to the number of issues raised in your claim received on November 9, 2007, a time extension beyond 2

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CASE NO.: 06-345-C March 7, 2008 (as referenced in my letter to you dated December 20, 2007), is necessary to provide a decision. A response will be provided to you by April 9, 2008. A copy of the letter from Contracting Officer, Regina M. Herchak to Naeem Uddin, dated February 13, 2008 is attached hereto as Exhibit "C." 5. To alleviate the effect of undue delay by a

contracting officer regarding a claim, 41 U.S.C.A. § 605(c)(4) states: A contractor may request the tribunal concerned to direct a contracting officer to issue a decision in a specified period of time, as determined by the tribunal concerned, in the event of undue delay on the part of the contracting officer. 6. whether The GNU central is owed issue in GNU's affirmative of a claim is

$1,656,061.50

because

wrongful

termination by the USDA due to, among other things, owner caused delay from flawed plans, specifications and administration of the job. 7. GNU seeks to conduct depositions and additional

production so that the merits of the case may be heard. However, because of the delayed claim decision, GNU is prohibited from doing so fully. 8. GNU was terminated in August, 2005 ­ over two years

prior to the submission of GNU's claim. Therefore, the USDA has had ample time to reevaluate 3 and consider the original

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CASE NO.: 06-345-C termination decision, its monetary consequences, and to change its position if it so desired. 9. In the context of this case, multiple extensions of

time will delay the right of GNU to pursue its recovery of damages. It is a condition precedent to seeking affirmative

relief that the contracting officer issue a decision regarding the claim. Without the decision, the Claim will stagnate and

GNU will not be able to amend its Complaint and comply with the Scheduling Order. In essence, Plaintiff is prejudiced by the

contracting officer's failure to issue a decision. 10. Therefore, GNU requests this Honorable Court, pursuant

to 41 U.S.C.A. § 605(c)(4), to direct the contracting officer to issue a decision regarding GNU's claim without further delay. WHEREFORE, requests this the Plaintiff, Court GRACE to AND NAEEM UDDIN, INC., and

Honorable

grant

Plaintiff,

Grace

Naeem Uddin, Inc.'s Motion to Request the Tribunal to Direct the Contracting Officer To Issue A Decision and any additional

relief this Honorable Court may deem equitable and just. Respectfully submitted,

s/ David R. Elder Attorney for Plaintiff DAVID R. ELDER USCFC BAR NO Application Pending FLA. BAR NO. 272442 Elder & Lewis, P.A. 4

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CASE NO.: 06-345-C Bayview Executive Plaza, Suite 301 3225 Aviation Avenue Coconut Grove, FLA 33133 Tel: (786) 314-5155 Fax: (503) 314-5811

CERTIFICATE OF FILING I hereby certify that on March ____, 2008 a copy of the foregoing "PLAINTIFF, GRACE AND NAEEM UDDIN, INC.'S MOTION TO REQUEST THE TRIBUNAL TO DIRECT THE CONTRACTING OFFICER TO ISSUE A DECISION REGARDING GRACE AND NAEEM UDDIN, INC.'S CLAIM" 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/ 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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