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

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UNITED STATES COURT OF FEDERAL CLAIMS ______________________________________ ) MULTISERVICE JOINT VENTURE, LLC ) ) Plaintiff, ) ) No. 06-312C -against) (Judge Wheeler) ) UNITED STATES OF AMERICA, ) ) Defendant. ) ______________________________________) PLAINTIFF'S RESPONSES TO THE DEFENDANT'S FIRST SET OF INTERROGATORIES Plaintiff Multiservice Joint Venture, LLC ("MJV"), through it undersigned counsel, respectfully submits the following Responses to the First Set of Interrogatories propounded by Defendant United States of America. Definitions and General Objections A. As used herein, the word "relevant" means relevant to the subject

matter of this action and/or reasonably calculated to lead to the discovery of admissible evidence. B. The plaintiff has based its Answers on the assumption that the

defendant, in propounding these discovery requests, did not intend to seek information that is protected against discovery (1) by the attorney/client privilege; (2) by the work product rule; or (3) because it contains the impressions, conclusions, opinions, legal research, or theories of plaintiff's attorneys. To the extent that defendant's discovery requests, or any part thereof, are intended to elicit such information, the plaintiff objects thereto and assert such privileges and protection to the fullest extent provided by law. C. The plaintiff objects to the instructions accompanying the

defendant's discovery requests to the extent that they purport to

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impose an obligation or duty to respond more extensively than those imposed by the appropriate rules of civil procedure and/or evidence. D. The plaintiff objects to the defendant's discovery requests to

the extent they purport to impose on them an obligation or duty to respond to matters relating to time periods other than the period pertinent to the issue(s) related to the above-captioned matter. E. The plaintiff objects to the extent that the defendant seeks

information based on documents or data it created, maintained, acquired and/or manufactured, or documents otherwise in its individual, agency, or otherwise affiliated possession. F. Many of the discovery requests purport to require the plaintiff

to search for or identify "all," "any," "each," or "every" instance in specified categories. To the extent that the plaintiff does not

object, it has diligently searched for information in order to formulate its answers but he cannot guarantee that its answers are all-inclusive. G. The plaintiff hereby declares that these Answers were prepared

in consultation with counsel and may not exactly match the actual words or phrases its representatives may have used respectively to describe the events, policies and practices discussed herein. H. The information contained in these Answers is not based solely

on the knowledge of the executing party, his agents, representatives, or attorneys. I. The information supplied in these Answers is that currently

available to the executing party, his agents, representatives or 2

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attorneys, unless otherwise privileged, and the executing party therefore reserves the right to supplement or modify the information contained herein should additional or different information become available through discovery or other means. Specific Answers and Objections INTERROGATORY NO. 1: Explain in detail why Multiservice's claim for

equitable adjustment for increased wage rates and health and welfare benefits is not subject to the exclusive jurisdiction of the Department of Labor pursuant to 48 C.F.R. § 52.222-41(t). ANSWER NO. 1: The plaintiff objects to this interrogatory based on

its apparently false premise that MJV sought "increased" wage rates and/or health and welfare benefits beyond the scope of its contract for janitorial services at the Naval Academy with the Department of Navy, Contract No. N62447-02-D-0558. Without waiving said objection, the plaintiff maintains that it has not sought to alter or challenge the applicable Wage Determinations in this instance. Consequently, Section 52.222-41(t) which governs No need exists to interpret any

such disputes does not apply here.

DOL regulation in deciding this case. By contrast, in requesting an adjustment and ultimately

petitioning the Court to require the Navy to pay (1) the increased costs of health care benefits during the period from March 1, 2003 to February 29, 2004 pursuant to the May 24, 2000 Wage Determination, and (2)the increased costs for wages and health care benefits during he period from March 1, 2004 to February 28, 2005 pursuant to the 3

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superseding February 9, 2004 Wage Determination, the plaintiff duly seeks to enforce the provisions of the Price Adjustment Clause incorporated in its Naval Academy contract fully consistent with the applicable Wage Determinations. See 48 C.F.R. § 52.222-43 (requiring the government to pay contracts for "increase(s) . . . in applicable wages and fringe benefits . . . made to comply with . . . [the] wage determination . . . ."). INTERROGATORY NO. 2: Identify each employee for whom you claim

increased labor and benefits costs as described in the complaint. Identify the wage and health and welfare benefit paid for each employee at the beginning of the contract, or the date of hire of the employee, whichever was later[;] and identify any increase in the pay or the health and welfare benefits that you paid for that employee and the date and amount thereof. increases through the date of your complaint. ANSWER NO. 2: The plaintiff has enclosed a chart listing the name Include any and all

of each of its employees, his or her date of hire, his or her date of termination, and his or her final rate of pay. Additionally, during the period from March 1, 2003 to February 24, 2004, the plaintiff paid each of its employees $11.79/hour in wages and $2.15/hour in health and welfare benefits. Consistent with the

May 24, 2000 Wage Determination and the September 11, 1998 collective bargaining agreement executed by the U.S. Naval Academy Cleaning Employees Bargaining Unit ("NACE") and EPES Building Maintenance Co., Inc. ("EPES"), the plaintiff was required to maintain a 4

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defined-benefit health plan for its employees during this period. However, the $2.15/hour reimbursement rate unilaterally

designated by the Navy proved insufficient to cover the increasing costs of maintaining the level of benefits in the employees' health care plan. As a consequence, the plaintiff incurred $53,105.24 in

un-reimbursed costs in maintaining the employees' health care plan. Pursuant to the February 9, 2004 Wage Determination and the January 28, 2004 collective bargaining agreement executed by NACE and MJV ("MJV CBA"), the plaintiff paid each of its employees $12.49/hour in wages and $2.85/hour in health and welfare benefits during the period from March 1, 2004 to February 28, 2005. Pursuant

to the same Wage Determination and the MJV CBA, the plaintiff paid each of its employees $12.81/hour in wages and $3.05/hour in health and welfare benefits during the period from March 1, 2005 to August 31, 2005. The Navy, however, refused to reimburse the plaintiff the full costs associated with these wage and benefits increases. As a result, the plaintiff suffered a loss of $141,653.92 in un-reimbursed labor costs for this twelve month period in 2004-05; and a loss of $65,778.38 in un-reimbursed labor costs for this subsequent six month period in 2005. INTERROGATORY NO. 3: Identify each and every task, job or unit of

work for which you allege that the "Navy . . . refused to allow MJV re-performance and/or to compensate MJV for its reperformance" as that phrase is used in paragraph 17 of the complaint. For each such task, 5

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job or unit of work, describe the task to be performed, the amount you allege you lost for that task and state when you received notice of deficient performance, and when, how and by whom you notified the Navy of your intention to reperform. State who you contacted at the

Navy to request reperformance for each such task, job, or unit of work. State whether you reperformed the work and state whether you were paid for such reperformance. ANSWER NO. 3: The plaintiff has enclosed documentation relating to

Modification Numbers P0004, P0007, P0008, P0014, P0021, P0026 and P0030 which described the reperformance issue here in detail. INTERROGATORY NO. 4: Describe any efforts you made to gain "access" to "equipment

and supplies" you claim were affected by Hurricane Isabel, as these terms are used in paragraph 18 of your complaint. Identify the specific persons who sought "access." Identify any person or persons who refused "access" and describe in detail the circumstances surrounding such refusal. ANSWER NO. 4: Elma Gadson, MJV's Project Manager, Joseph Smith, MJV's Assistant Project Manager, and other MJV personnel sought entry into the area in which the company's equipment and supplies were stored. However, unnamed Navy personnel initially refused them access to the area during cleanup efforts following Hurricane Isabel. When Gadson and Smith gained access to this area days later, they were informed by Navy personnel that all of the equipment and supplies were discarded during the cleanup process. INTERROGATORY NO. 5: Identify each item of "equipment and supplies" 6

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or other property stored at the Academy that you describe in paragraph 18 of your complaint. In identifying each item, describe in detail the item, state the price you paid for the item, the date you purchased the item, the condition of the item immediately preceding the hurricane (e.g., new, slightly used, used), the value you attribute to the item, and describe in detail why you contend the item would be salvageable and the salvage value of the item. ANSWER NO. 5: The plaintiff has enclosed a chart listing the supplies and equipment discarded by the Navy, which includes the replacement cost for every item. All of the items in question were new and/or

in excellent working order. The plaintiff cannot speculate as to the salvage value of these items since its personnel never had an opportunity to inspect them prior to the Navy discarding them. The plaintiff cannot presume the

level of flood damage, if any, inflicted upon its supplies and equipment. INTERROGATORY NO. 6: Does the amount claimed in paragraph 20 of your complaint include items that could be salvaged, all items stored at the Naval Academy, or some other combination of items. State

each item included in the amount claimed in paragraph 20 and the individual value of each item. ANSWER NO. 6: See Answer No. 5. Identify each employee you assigned to strip

INTERROGATORY NO. 7:

and refinish Bancroft Hall between August 5 and August 15, 2003. For each such employee, state the number of hours worked, the date and 7

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times of each shift performed on this task by the employee, the number of hours worked by each employee that were overtime hours, and the amount of pay received by each employee. ANSWER NO. 7: The plaintiff has enclosed a chart listing the employees involved in this project, their hours worked, and the compensation specifically attributable to their overtime or additional hours expended on this project. Each employee involved in this project

received his or her standard bi-weekly pay plus additional pay related to the work on this project. INTERROGATORY NO. 8: Describe in detail what you mean by "MJV had

to work seven days a week and had to assign additional employees to this stripping and refinishing project" as stated in paragraph 21 of your complaint. Specifically, do you mean that employees were

diverted from other areas, that additional employees were hired, that employees were required to work overtime, or something else? ANSWER NO. 8: In order to complete the project within the time

constraints created by the Navy, the plaintiff had to assign employees to work additional hours during the week and/or on the weekends. Consequently, during this period certain employees had to work seven days in a week's time in order to complete the project on time. INTERROGATORY NO. 9: State whether you submitted the $60,310.98 amount claimed in paragraph 10 of your complaint to the contracting officer. If you did not, explain how the Court has jurisdiction to resolve this claim. Explain why you contend that this claim is not satisfied by

modification number P0058 to the contract in this precise amount. 8

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ANSWER NO. 9:

The plaintiff did not locate a copy of Modification

Number P0058 amongst the discovery documentation produced earlier by the defendant. Following receipt (or uncovering) of said documentation, the plaintiff will respond substantively to this Interrogatory. INTERROGATORY NO. 10: Identify any persons, including a third-party, such as a payroll company or benefits administrator, who has knowledge of the labor rates or health and welfare benefits you paid to employees for whose wages and benefits you seek an equitable adjustment. ANSWER NO. 10: The following individuals have knowledge of the rates paid by MJV for wages and for health and welfare benefits: David R.

Tolson; George W. Tolson, Jr.; Monise Cromwell; Victoria Edwards, NACE's Shop Steward; Alan H. Legum, NACE's General Counsel; Jennifer Byrd, ADP Representative; and Gary Beckman, FCE Benefit Administrators, Inc. President & CEO. VERIFICATION I hereby declare under the penalty of perjury that the foregoing Responses to the Plaintiff's First Set of Interrogatories are true and correct to the best of my belief and knowledge in accordance with 28 U.S.C. § 1746. _________________________ DAVID R. TOLSON Dated: __________________ Respectfully submitted,

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s/Janice Davis____ _ Janice Davis Davis & Steele 1100 - 15th Street, N.W. Suite 300 Washington, DC 20005-1720 Telephone: 202-530-5828 Email: [email protected] Counsel to the Plaintiff Dated: September 26, 2007

CERTIFICATE OF SERVICE I hereby certify that, on the 1st day of October 2007, a copy of the plaintiff's Answers and Objections to the Defendant's First 10

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Set of Interrogatories was served, via first class mail on: Brian T. Edmunds, Esq. Trial Attorney Commercial Litigation Branch Civil Division -- Classification Unit United States Department of Justice 1100 L Street, N.W., 8th Floor Washington, DC 20530 Counsel for the Defendant

s/Janice Davis________________ Janice Davis

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